On April 15, 2016, following last year’s important amendments to relevant conduct, mitigating role, and fraud guidelines, the U.S. Sentencing Commission voted to continue to make fundamental fixes to the U.S. Sentencing Guidelines (USSG) that have long been in need of repair. These fixes became final on November 1, 2016 During this amendment cycle, with respect to matters most pertinent to the white collar practitioner, the Commission addressed needed reform expanding the invocation of compassionate release for elderly and/or seriously ill inmates, addressed a circuit split regarding the sentencing of child pornography offenders who use peer-to-peer software to commit their offenses, and modified conditions of probation and supervised release. While this article focuses on these proposed amendments, the authors note that the Commission also passed important amendments regarding sentencing for animal fighting offenses in light of new legislation and amended the guidelines for alien smuggling. The Commission finally undertook a wholesale Compassionate Release A sentencing court, “upon motion of the Director of the Bureau of Prisons,” may reduce an inmate’s sentence where it finds that (ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g); and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. This provision commonly is referred to as “compassionate release.” USSG section 1B1.13 sets forth the Commission’s policy on compassionate release. On the heels of two Department of Justice reports and a public hearing, the Commission found it necessary to “broaden the criteria for eligibility, to add guidance to the medical criteria, and to remove other administrative hurdles that limit the availability of compassionate release for otherwise eligible defendants.” (U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary 4 (2016), [hereinafter 2016 Amendments], available at http:// tinyurl.com/jkggaoz.) Accordingly, the Commission revised the application notes of USSG section 1B1.13 to provide, first, that “extraordinary and compelling reasons” encompass medical conditions. Specifically, extraordinary and compelling reasons for compassionate release exist where a defendant is suffering from a terminal illness that is “a serious and advanced illness with an end of life trajectory[]. A specific prognosis of life expectancy . . . is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), endstage organ diseases, and advanced dementia.” (Id. at 2.) This amendment thus removes the prognosis of an 18-month life expectancy now contained in the Bureau of Prisons’ program statement because “it is extremely difficult to determine death within a specific time period” and “requiring a specific prognosis . . . is unnecessarily restrictive both in terms of the administrative review and the scope of eligibility for compassionate release applications.” (Id. at 5.) Second, the Commission removed the requirement that the defendant be suffering from a “permanent” physical or medical condition, or one “for which conventional treatment promises no substantial improvement.” Instead, extraordinary and compelling reasons now exist where an inmate is suffering from a “serious,” but not necessarily permanent, physical or medical condition, include “suffering from a serious functional or cognitive impairment,” and still encompass “experiencing deteriorating physical or mental health because of the aging process.” (Id. at 2.) Finally, these conditions need only be conditions “from which [the inmate] is not expected to recover.” (Id.) Third, the Commission added a consideration for the age of the defendant. If the defendant is at least 65 years old, is “experiencing a serious deterioration in physical or mental health because of the aging process,” and “has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less,” the defendant should be considered for compassionate release. This amendment considerably relaxes the current requirement at 18 U.S.C. § 3582(c)(1)(A)(ii) that a defendant be at least 70 years old and have served “at least 30 years in prison” in order to qualify for compassionate release. While the amendment “adds a limitation that the defendant must be experiencing seriously deteriorating health because of the aging process,” the Commission nonetheless “expects that the broadening of the medical conditions categories . . . will lead to increased eligibility for inmates who suffer from certain conditions or impairments, and who experience a diminished ability to provide self-care in prison, regardless of their age.” (2016 Amendments, supra, at 5.) Fourth, the Commission expanded the family circumstances scenario to include the death or incapacitation of the “caregiver” of the defendant’s minor child or children, where formerly the circumstance was limited to an actual family member who cared for the children. (Id. at 2.) The Commission also added to family circumstances the “incapacitation of the defendant’s spouse or registered partner when the defendant would be the only available caregiver” for that person. (Id.) The Commission left in the statement that the director of the Bureau of Prisons may find extraordinary and compelling circumstances that otherwise were not listed in the amended application note. Fifth, the Commission added as application note 2 that “an extraordinary and compelling reason need not have been unforeseen at the time of the sentencing in order to warrant a reduction in the term of imprisonment” for compassionate release. (Id.) Indeed, “the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.” (Id. at 2–3.) Finally, the Commission added at application note 4 that it “encourages the Director of the Bureau of Prisons to file such a motion if the defendant meets any of the circumstances set forth in Application Note 1.” The Commission added this specific, permanent note of encouragement (albeit nonbinding) to the director inasmuch as it had found that there
