BIG Guideline Changes on the Horizon (With Mark Allenbaugh)


On April 5, 2023, the United States Sentencing Commission voted to make several substantive changes to the federal sentencing guidelines.  If approved (or not acted upon) by Congress, some of the most significant amendments in recent memory will go into effect on Nov. 1, 2023.   These changes will effect anyone currently pending sentencing in federal court, and anyone currently serving a sentence in the federal Bureau of Prisons.  

In this episode, we are joined by my genious pal, Mark Allenbaugh, to give you the scoop on the two biggest amendments, and talk about a couple of others, including the one that didn’t pass:  the big white whale that is acquitted conduct (see Ep. 36, with Mark Allenbaugh and Prof. Doug Berman).


  • USSG amendment to allow for 2 level reduction for having no criminal history and reducing impact of “status” points for criminal history (point assessment for being on probation, parole or supervised release) when committing a new offense;
  • Amendment expanding the criteria/eligibility for Compassionate Release;
  • Commission punting on acquitted conduct and predictions about what the Supreme Court might do with this issue;
  • What you can do RIGHT now to make use of these changes, even though they do not go into effect until Nov. 1, 2023;
  • What you can do to ensure the contested compassionate release provisions do not get vetoed by Congress.


Ep. 36:  Acquitted conduct episode:  PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences. – Doug Passon Law

The Sentencing Commission’s detailed report on all amendments:

18 USC § 3661 (Referred to by Allenbaugh during this episode):

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

Proof that the BOP is inept at handling Covid:


We mentioned that the CR amendments was the only one passed without unanimous consent. It was split on party lines (4 Dems in favor, 3 Repubs opposed).  Therefore, it would be useful for you to reach out to your Senate/House members to voice your support for the changes. You could also reach out to some criminal justice-friendly congresspeople as well (see below for a few suggestions).  Here is some suggested language for your email or calls:

Dear ___

I am writing to voice my support for the United States Sentencing Commission’s recent amendments to the Compassionate Release Guidlines.  I believe in second chances for those who deserve it.  I believe that prison has diminishing returns.  I believe that every human is capable of redemption.  I believe that changes in the law and other new factors warrant a second look at sentencings that are often too long.

I know this amendment may be objectionable to some, but it’s hard to understand why.  The First Step Act was legislation passed during the Trump Adminstration with overwhelming BI-PARTISAN support.  The Compassionate Release amendments, merely implement the policies expressed in the First Step Act. I hope you continue to lend your bi-partisan support to this much needed criminal justice reform.

Sincerely (Jane Q. Voter in your District)

Here are some CJ-friendly congress-folk:







Last, but not least, WTF is “OLD EBBIT”???????

I have a confession to make.  I had no fuckin’ idea what Allenbaugh was talking about when he twice mentioned the “Old Ebbit”.  I was too ashamed to expose my ignorance, and so I had to do some googlin’.   Old Ebbitt Grill | Washington, DC Restaurant & Bar

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