Imperfect 10: Why thousands will be deemed ineligible for the ZPO and what to do about it
On Nov 1, the Zero Point offender Amendment to USSG goes into effect. WE CALL IT THE ZIPPO (ZPO).
It is retroactive, and thousands facing sentencing and already sentenced should be eligible to have their sentences reduced.
BUT what happens if you received a guideline bump under 3B1.1, for being a “leader organizer”?
Because of the imperfect drafting of “CRITERION 10”, the Sentencing Commission presumes that any defendant who receives this role adjustment to be ineligible for the ZPO. BUT THEY ARE LIKELY WRONG.
In this episode, we discuss why the reading of “CRITERION 10” is flawed, and why it is only defendants who receive a role adjustment while engaged in a continuing criminal enterprise, i.e., an on-going drug distribution conspiracy, are ineligible.
This is significant because the Commission estimates that only approximately 11,500 currently incarcerated inmates are eligible for retroactive application of the ZPO. Since fiscal year 2013, on average roughly 3,000 defendants receive a 3B1.1 roll adjustment each year, but no more than half of them were convicted of drug distribution offenses.
Thus, the Commission may be underestimating the number of ZPO eligible inmates by half. In other words, if offenders who have received a role adjustment are not automatically precluded from receiving the ZPO, there actually could be well more than 20,000 inmates currently eligible for a sentence reduction pursuant to the ZPO.”
IN THIS EPISODE:
- The breakdown of the relevant provisions and the analysis as to why leader/organizers should still qualify for the ZPO;
- Using the recent Pulsifer “safety valve” case to bolster our argument;
LINKS & FREE RESOURCES:
I was a contributing author to part 2 of a two part series on prospective and retroactive application of the ZPO in Law 360. Click button below to download a free copy of the 2-part series, just published in Law 360:
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