On April 12, 2018, the U.S. Sentencing Commission voted to promulgate amendments to the Sentencing Guidelines.  The Guidelines are the starting points for a district court’s determination of a federal defendant’s sentence.  These amendments will be submitted to Congress by May 1.  If Congress takes no action, they will take effect on November 1, 2018.

The following topics are addressed in the amendments:

  1. Marijuana Equivalency (U.S.S.G. § 2D1.1) – The Guidelines previously contained Drug Equivalency Tables that converted different types of drugs into their “Marihuana equivalency,” for the purpose of adding the quantities of different types of drugs together for sentencing purposes.  While the Drug Equivalency Tables still exist, the amendment renames “marihuana equivalency” to “converted drug weight.”
  1. Synthetic Drugs (U.S.S.G. § 2D1.1) – The amendments set a minimum base offense level of 12 for synthetic cathinones and cannabinoids (such as spice and synthetic marijuana), and set converted drug weight ratios for each class of substance. The amendments also add a four level enhancement to offense levels if a defendant knowingly misrepresented fentanyl to be another substance.
  1. Illegal Reentry (U.S.S.G. § 2L1.2) – The amendment covers a so-called “gap” in U.S.S.G. § 2L1.2(b)(2).  The amendment will permit additional criminal history points to be assigned where a defendant engaged in criminal conduct before his first order of deportation or removal, but was not convicted until after that order.
  1. Acceptance of Responsibility (U.S.S.G. § 3E1.1) – The amendment adds language to the commentary clarifying that a defendant’s unsuccessful challenges to his or her relevant conduct should not bar application of a reduction in offense level for acceptance of responsibility.
  1. Alternatives to Incarceration (U.S.S.G. §§ 5C1.1, 5F1.2) – The amendment adds commentary directing district courts to consider imposing a sentence other than imprisonment for certain low-level, non-violent, first-time offenders. It also amends commentary to provide that home detention does not necessarily need to include electronic (ankle) monitoring.
  1. Tribal Issues (U.S.S.G. § 4A1.3) – The commentary to the guideline was amended to provide a list of factors a court may consider to determine whether to depart upward based on tribal convictions.
  1. Social Security Fraud (U.S.S.G. § 2B1.1) – The amendment adds a four-level enhancement to a defendant’s offense level, with a floor of offense level 12, for certain forms of social security fraud.
  1. Use of A Computer Enhancement (U.S.S.G. § 2G1.3) – The amendment clarifies application note 4 to the guideline.  A two-level enhancement may apply whether using a computer to communicate directly with a minor or guardian, or when used to solicit a third party.

The full text of the amendments is available here: https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20180412_prelim_rf_final.pdf.