2024 United States Sentencing Guideline Amendments: A Front Row Seat to the Kabuki Theatre

On November 1, several amendments to the United States Sentencing Guidelines took effect. Some of these changes are significant, offering advantages to the defense, while others are less beneficial.

However, ultimately, this process amounts to nothing more than "Kabuki Theatre," meaning the tortured guideline applications become merely performative, because 18 U.S.C. § 3553, enables discerning judges to overlook the sentencing recommendations provided by the guidelines.

Thus, it is crucial to be informed about these amendments to argue effectively whether and how they should be considered in the final analysis.

 

IN THIS EPISODE: 

• Some eye-popping facts and stats after forty years of guideline sentencing;
• Relevant conduct amendment to now exclude acquitted conduct (but it comes with a big but…)
• Possibility that new litigation may void the Kisor fix because of commission overreach by overriding congress and/or resolving circuit splits;  
• The “Kisor” work-around to fix the intended loss issue under the fraud guideline;
• The implication and larger application of the Kisor workaround – i.e., support for the argument that for other guidelines, if it’s in the commentary, it doesn’t count;
• Clarification of the new Zero Point Offender provisions (ZPO) to deny eligibility for anyone who gets an upward role adjustment;
• And, perhaps the one bright spot, adding a potential downward departure for “youthful offenders” (mid-20’s or less);
• Practice tips for navigating the  new guidelines provisions;
• Information on reaching out to the commission for future proposed guideline amendments.

 

LINKS: 

United States Sentencing Guidelines online:  https://guidelines.ussc.gov/apex/r/ussc_apex/guidelinesapp/home

 

My new Album!  The guidelines are 40 years old, which is also when I picked up my first guitar.  So, yes, I had to give a shameless plug for my first rock record, "One Good Thing", which is available everywhere you stream your music!  Music is another creative outlet that keeps me sane and quiets my brain:   https://www.youtube.com/playlist?list=OLAK5uy_kyVV0Qs1xMGqXQYZlzHzBgUlA7A35aENI

 

FAREWELL 2024!!!!

This will be the last new episode of 2024.  As always, I wanted to thank you for listening, constributing, liking, subscribing and spreading the word about Set for Sentencing.  We have been going strong for over two years now, and the show was recently ranked #7 among the 35 “must-follow” Criminal Defense podcasts in 2024, via Feedspot (35 Best Criminal Defense Podcasts You Must Follow in 2024). 

So, per a tradition I started in 2023, I’ll be taking the rest of the year off!  The remaining episodes of the year will be re-broadcasts of either other podcasts I have appeared on or some earlier episodes I adore and may have been overlooked when the audience was smaller.  

2025 will be a wild ride, and we’ll be right here with you, buckled up and ready to roll.   Until