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Big News in Federal Sentencing Computation

Posted on by Townsend Myers

A recent email I received from Virginia Schlueter, Chief Federal Defender in the Eastern District of Louisiana, details some big news regarding sentencing in Federal Court. I have copied the email in full:

On April 7, 2010, the U.S. Sentencing Commission voted to amend the Guidelines Manual by deleting §4A1.1(e) (Two points are added to criminal history score if the defendant committed the offense less than two years after release from imprisonment). The presumed reason for the amendment is that recency points add nothing to the predictive quality of the criminal history score and fail to reflect meaningful differences in offender culpability, as set forth at pp. 90-98 of the Defenders’ testimony to the Commission, available here.

The recency amendment (along with other amendments being voted on this cycle) will be sent to Congress on May 1, 2010 and, if no further action is taken, will be adopted on Nov. 1, 2010. This does not mean, however, that courts must continue applying recency points in the interim. The court remains free under 18 U.S.C. § 3553(a) and Supreme Court precedent to disagree with any part of the guidelines on policy grounds. Defense counsel should argue that courts should not assess recency points now for the same reason that the Commission recommends abandoning them on Nov. 1st: they do not reflect either increased culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.

The Commission will be announcing all of the pending amendments on its website soon,, and SRC will provide a summary of those amendments ASAP. There may be an additional benefit resulting in a client becoming safety valve eligible because often those two recency points are disqualified for the safety valve two point after Nov. 1st, when if nothing is done by congress these recency points will go the way of the dinosaur.

There is also a real benefit to continuing sentencings past the Nov. 1st date in any case if it will change the Criminal History Category.



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