Guidelines Blues: The Commission’s Next Moves

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The United States Sentencing Commission is gearing up to make their recommendations for the next round of amendments.  It’s the follow-up album to their first hit record, which included memorable songs such as ” The Zero Point Offender Boogie”, and “Release Me (Compassionately)”.  The real question is can they top their debut with their sophomore effort?  Will there be any hits?  Can we dance to it? 

Mark Allenbaugh and I hit the highlights, and offer up some B-side pontifications about the death of the administrative state, why Trump’s immunity claim is destined to die in the Supreme Court, and what on earth rhymes with “acquitted conduct”????


  • Proposed amendment to reclassify classic “departures” into a generic category;
  • Proposed amendment to deal with “intended loss” issue in fraud cases;
  • The possible death of “Chevron Deference” and what that could mean for the guidelines (spoiler alert – it will render all commentary meaningless);
  • Remembering the “rule of lenity”;
  • Proposed changes to “youthful offender” criminal history provision;
  • Following up on “acquitted conduct”;
  • A really cool discussion about Booker and how the guidelines should (and must) interplay with 18 USC 3553;
  • The only true fix to render the guidelines constitution is to implement “charge offense sentencing”;
  • Revisiting the proposed amendment to criterion 10 of the Zero Point Offender guideline.


Acquitted Conduct Revisited with Mark Allenbaugh & Prof. Doug Berman:

Imperfect 10: The Commission’s attempt to fix the Zero Point Offender Criteria:

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