Published on: Friday, December 14, 2018

On December 13, 2018, the United States Sentencing Commission published for comment Proposed Amendments the Sentencing Guidelines (Preliminary), “including a proposal concerning how sentencing courts determine if a conviction is ‘crime of violence’ under the guidelines” which would "establish that the categorical approach and modified categorical approach do not apply in determining whether a conviction is a 'crime of violence' or a 'controlled substance offense'” under the career offender guideline, USSG §§ 4B1.1,2.  Here are some highlights from the Commission’s press release:

At a public meeting, Circuit Judge William H. Pryor Jr., the Acting Chair of the Commission remarked, “The ‘crime of violence’ definition continues to cause extensive litigation with inconsistent sentencing outcomes, often resulting in offenders whose conduct is obviously violent in nature failing to qualify for sentencing enhancements. These results are particularly troublesome given the risk to public safety posed by violent offenders.”

The sentencing guidelines provide increased penalties for offenders with a prior conviction that is a “crime of violence” or “controlled substance offense” (e.g., the career offender guideline). Under the guidelines, the sentencing court must determine whether a prior conviction falls into either of those categories. Circuit caselaw currently limits the sentencing court’s analysis of the prior conviction to the elements of the statute of conviction (referred to as the “categorical approach”), without any consideration of the defendant’s actual conduct in the offense. Today’s proposed amendment would enable the sentencing courts to consider the conduct that formed the basis of the offense of conviction as well as the elements of the statute of conviction. The Commission is requesting input on this proposal and the appropriate sources of information the courts might use to ensure that clear and reliable evidence of prior violent conduct is accounted for at sentencing.

The Commission also published a proposal to clarify the definition of certain enumerated offenses and provide clearer guidance how to treat inchoate offenses in determining whether an offense is a crime of violence. The proposed amendment addresses specific application issues and general concerns raised by the Department of Justice in their August 2018 annual letter to the Commission.

The Training Division provides sentencing resources specifically on enhancements for crimes of violence and violent felonies to help you argue for the best possible sentence for your client.