Exhibit B - Proposed Guideline Amendment Related to "Zero-Point Offenders" — USA v. Hopkins (Dkt. 24-2, N.D. Ga.)

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:22-cr-00284-SEG-CMS · Doc. 24-2 · 2023-04-11 · Docket on CourtListener

Full text

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(B) 
Zero Point Offenders 
 
CHAPTER FOUR 
CRIMINAL HISTORY 
AND CRIMINAL LIVELIHOOD 
 
*   *   * 
 
PART C ― ADJUSTMENT FOR CERTAIN ZERO-POINT OFFENDERS 
 
§4C1.1. Adjustment for Certain Zero-Point Offenders 
 
(a) ADJUSTMENT.—If the defendant meets all of the following criteria: 
 
 
(1) 
the defendant did not receive any criminal history points from 
Chapter Four, Part A; 
 
 
(2) 
the defendant did not receive an adjustment under §3A1.4 
(Terrorism); 
 
 
(3) 
the defendant did not use violence or credible threats of violence in 
connection with the offense; 
 
 
(4) 
the offense did not result in death or serious bodily injury; 
 
 
(5) 
the instant offense of conviction is not a sex offense; 
 
 
(6) 
the defendant did not personally cause substantial financial hardship; 
 
 
(7) 
the defendant did not possess, receive, purchase, transport, transfer, 
sell, or otherwise dispose of a firearm or other dangerous weapon (or 
induce another participant to do so) in connection with the offense; 
 
 
(8) 
the instant offense of conviction is not covered by §2H1.1 (Offenses 
Involving Individual Rights); 
 
 
(9) 
the defendant did not receive an adjustment under §3A1.1 (Hate 
Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human 
Rights Offense); and 
 
 
(10) the defendant did not receive an adjustment under §3B1.1 
(Aggravating Role) and was not engaged in a continuing criminal 
enterprise, as defined in 21 U.S.C. § 848;  
 
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decrease the offense level determined under Chapters Two and Three by 
2 levels.  
 
(b) DEFINITIONS AND ADDITIONAL CONSIDERATIONS.— 
 
 
(1) “Dangerous weapon,” “firearm,” “offense,” and “serious bodily 
injury” have the meaning given those terms in the Commentary to 
§1B1.1 (Application Instructions). 
 
(2) “Sex offense” means (A) an offense, perpetrated against a minor, 
under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 
of title 18, not including a recordkeeping offense; (iii) chapter 117 of 
title 18, not including transmitting information about a minor or filing 
a factual statement about an alien individual; or (iv) 18 U.S.C. § 1591; 
or (B) an attempt or a conspiracy to commit any offense described in 
subdivisions (A)(i) through (iv) of this definition. 
 
(3) In determining whether the defendant’s acts or omissions resulted in 
“substantial financial hardship” to a victim, the court shall 
consider, among other things, the non-exhaustive list of factors 
provided in Application Note 4(F) of the Commentary to §2B1.1 
(Theft, Property Destruction, and Fraud). 
 
Commentary 
Application Notes: 
 
1. 
Application of Subsection (a)(6).—The application of subsection (a)(6) is to be determined 
independently of the application of subsection (b)(2) of §2B1.1 (Theft, Property Destruction, and 
Fraud). 
 
2. 
Upward Departure.—An upward departure may be warranted if an adjustment under this 
guideline substantially underrepresents the seriousness of the defendant’s criminal history. For 
example, an upward departure may be warranted if the defendant has a prior conviction or other 
comparable judicial disposition for an offense that involved violence or credible threats of 
violence. 
 
*   *   * 
 
§5C1.1. Imposition of a Term of Imprisonment 
 
(a) A sentence conforms with the guidelines for imprisonment if it is within 
the minimum and maximum terms of the applicable guideline range. 
 
(b) If the applicable guideline range is in Zone A of the Sentencing Table, a 
sentence of imprisonment is not required, unless the applicable guideline 
in Chapter Two expressly requires such a term. 
 
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(c) 
If the applicable guideline range is in Zone B of the Sentencing Table, the 
minimum term may be satisfied by— 
 
(1) a sentence of imprisonment; or 
 
(2) a sentence of imprisonment that includes a term of supervised release 
with a condition that substitutes community confinement or home 
detention according to the schedule in subsection (e), provided that at 
least one month is satisfied by imprisonment; or 
 
(3) a sentence of probation that includes a condition or combination of 
conditions that substitute intermittent confinement, community 
confinement, or home detention for imprisonment according to the 
schedule in subsection (e). 
 
(d) If the applicable guideline range is in Zone C of the Sentencing Table, the 
minimum term may be satisfied by— 
 
(1) a sentence of imprisonment; or  
 
(2) a sentence of imprisonment that includes a term of supervised release 
with a condition that substitutes community confinement or home 
detention according to the schedule in subsection (e), provided that at 
least one-half of the minimum term is satisfied by imprisonment.  
 
(e) Schedule of Substitute Punishments: 
 
(1) One day of intermittent confinement in prison or jail for one day of 
imprisonment (each 24 hours of confinement is credited as one day of 
intermittent confinement, provided, however, that one day shall be 
credited for any calendar day during which the defendant is employed 
in the community and confined during all remaining hours); 
 
(2) One day of community confinement (residence in a community 
treatment center, halfway house, or similar residential facility) for 
one day of imprisonment; 
 
(3) One day of home detention for one day of imprisonment. 
 
(f) 
If the applicable guideline range is in Zone D of the Sentencing Table, the 
minimum term shall be satisfied by a sentence of imprisonment. 
 
Commentary 
Application Notes: 
 
1. 
Application of Subsection (a).—Subsection (a) provides that a sentence conforms with the 
guidelines for imprisonment if it is within the minimum and maximum terms of the applicable 
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guideline range specified in the Sentencing Table in Part A of this Chapter. For example, if the 
defendant has an Offense Level of 20 and a Criminal History Category of I, the applicable 
guideline range is 33–41 months of imprisonment. Therefore, a sentence of imprisonment of at 
least thirty-three months, but not more than forty-one months, is within the applicable guideline 
range. 
 
2. 
Application of Subsection (b).—Subsection (b) provides that where the applicable guideline 
range is in Zone A of the Sentencing Table (i.e., the minimum term of imprisonment specified in 
the applicable guideline range is zero months), the court is not required to impose a sentence of 
imprisonment unless a sentence of imprisonment or its equivalent is specifically required by the 
guideline applicable to the offense. Where imprisonment is not required, the court, for example, 
may impose a sentence of probation. In some cases, a fine appropriately may be imposed as the 
sole sanction. 
 
3. 
Application of Subsection (c).—Subsection (c) provides that where the applicable guideline 
range is in Zone B of the Sentencing Table (i.e., the minimum term of imprisonment specified in 
the applicable guideline range is at least one but not more than nine months), the court has three 
options: 
 
(A) 
It may impose a sentence of imprisonment. 
 
(B) 
It may impose a sentence of probation provided that it includes a condition of probation 
requiring a period of intermittent confinement, community confinement, or home detention, 
or combination of intermittent confinement, community confinement, and home detention, 
sufficient to satisfy the minimum period of imprisonment specified in the guideline range. 
For example, where the guideline range is 4–10 months, a sentence of probation with a 
condition requiring at least four months of intermittent confinement, community 
confinement, or home detention would satisfy the minimum term of imprisonment specified 
in the guideline range.  
 
(C) 
Or, it may impose a sentence of imprisonment that includes a term of supervised release 
with a condition that requires community confinement or home detention. In such case, at 
least one month must be satisfied by actual imprisonment and the remainder of the 
minimum term specified in the guideline range must be satisfied by community 
confinement or home detention. For example, where the guideline range is 4–10 months, a 
sentence of imprisonment of one month followed by a term of supervised release with a 
condition requiring three months of community confinement or home detention would 
satisfy the minimum term of imprisonment specified in the guideline range. 
 
The preceding examples illustrate sentences that satisfy the minimum term of imprisonment 
required by the guideline range. The court, of course, may impose a sentence at a higher point 
within the applicable guideline range. For example, where the guideline range is 4–10 months, 
both a sentence of probation with a condition requiring six months of community confinement or 
home detention (under subsection (c)(3)) and a sentence of two months imprisonment followed 
by a term of supervised release with a condition requiring four months of community confinement 
or home detention (under subsection (c)(2)) would be within the guideline range. 
 
4. 
Zero-Point Offenders.—If the defendant is a nonviolent first offender and the applicable 
guideline range is in Zone A or B of the Sentencing Table, the court should consider imposing a 
sentence other than a sentence of imprisonment, in accordance with subsection (b) or (c)(3). 
See 28 U.S.C. § 994(j). For purposes of this application note, a “nonviolent first offender” is a 
defendant who has no prior convictions or other comparable judicial dispositions of any kind and 
who did not use violence or credible threats of violence or possess a firearm or other dangerous 
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weapon in connection with the offense of conviction. The phrase “comparable judicial dispositions 
of any kind” includes diversionary or deferred dispositions resulting from a finding or admission 
of guilt or a plea of nolo contendere and juvenile adjudications. 
 
 
(A) 
Zero-Point Offenders in Zones A and B of the Sentencing Table.—If the defendant 
received an adjustment under §4C1.1 (Adjustment for Certain Zero-Point Offenders) and 
the defendant’s applicable guideline range is in Zone A or B of the Sentencing Table, a 
sentence other than a sentence of imprisonment, in accordance with subsection (b) or (c)(3), 
is generally appropriate. See 28 U.S.C. § 994(j). 
 
 
(B) 
Departure for Cases Where the Applicable Guideline Range Overstates the 
Gravity of the Offense.—A departure, including a departure to a sentence other than a 
sentence of imprisonment, may be appropriate if the defendant received an adjustment 
under §4C1.1 (Adjustment for Certain Zero-Point Offenders) and the defendant’s applicable 
guideline range overstates the gravity of the offense because the offense of conviction is not 
a crime of violence or an otherwise serious offense. See 28 U.S.C. § 994(j). 
 
5. 
Application of Subsection (d).—Subsection (d) provides that where the applicable guideline 
range is in Zone C of the Sentencing Table (i.e., the minimum term specified in the applicable 
guideline range is ten or twelve months), the court has two options: 
 
(A) 
It may impose a sentence of imprisonment.  
 
(B) 
Or, it may impose a sentence of imprisonment that includes a term of supervised release 
with a condition requiring community confinement or home detention. In such case, at least 
one-half of the minimum term specified in the guideline range must be satisfied by 
imprisonment, and the remainder of the minimum term specified in the guideline range 
must be satisfied by community confinement or home detention. For example, where the 
guideline range is 10–16 months, a sentence of five months imprisonment followed by a 
term of supervised release with a condition requiring five months community confinement 
or home detention would satisfy the minimum term of imprisonment required by the 
guideline range. 
 
The preceding example illustrates a sentence that satisfies the minimum term of imprisonment 
required by the guideline range. The court, of course, may impose a sentence at a higher point 
within the guideline range. For example, where the guideline range is 10–16 months, both a 
sentence of five months imprisonment followed by a term of supervised release with a condition 
requiring six months of community confinement or home detention (under subsection (d)), and a 
sentence of ten months imprisonment followed by a term of supervised release with a condition 
requiring four months of community confinement or home detention (also under subsection (d)) 
would be within the guideline range. 
 
6. 
Application of Subsection (e).—Subsection (e) sets forth a schedule of imprisonment 
substitutes. 
 
7. 
Departures Based on Specific Treatment Purpose.—There may be cases in which a 
departure from the sentencing options authorized for Zone C of the Sentencing Table (under 
which at least half the minimum term must be satisfied by imprisonment) to the sentencing 
options authorized for Zone B of the Sentencing Table (under which all or most of the minimum 
term may be satisfied by intermittent confinement, community confinement, or home detention 
instead of imprisonment) is appropriate to accomplish a specific treatment purpose. Such a 
departure should be considered only in cases where the court finds that (A) the defendant is an 
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abuser of narcotics, other controlled substances, or alcohol, or suffers from a significant mental 
illness, and (B) the defendant’s criminality is related to the treatment problem to be addressed. 
 
In determining whether such a departure is appropriate, the court should consider, among other 
things, (1) the likelihood that completion of the treatment program will successfully address the 
treatment problem, thereby reducing the risk to the public from further crimes of the defendant, 
and (2) whether imposition of less imprisonment than required by Zone C will increase the risk 
to the public from further crimes of the defendant. 
 
Examples: The following examples both assume the applicable guideline range is 12–18 months 
and the court departs in accordance with this application note. Under Zone C rules, the defendant 
must be sentenced to at least six months imprisonment. (1) The defendant is a nonviolent drug 
offender in Criminal History Category I and probation is not prohibited by statute. The court 
departs downward to impose a sentence of probation, with twelve months of intermittent 
confinement, community confinement, or home detention and participation in a substance abuse 
treatment program as conditions of probation. (2) The defendant is convicted of a Class A or B 
felony, so probation is prohibited by statute (see §5B1.1(b)). The court departs downward to 
impose a sentence of one month imprisonment, with eleven months in community confinement 
or home detention and participation in a substance abuse treatment program as conditions of 
supervised release. 
 
8. 
Use of Substitutes for Imprisonment.—The use of substitutes for imprisonment as provided 
in subsections (c) and (d) is not recommended for most defendants with a criminal history 
category of III or above. 
 
9. 
Residential Treatment Program.—In a case in which community confinement in a residential 
treatment program is imposed to accomplish a specific treatment purpose, the court should 
consider the effectiveness of the residential treatment program. 
 
10. 
Application of Subsection (f).—Subsection (f) provides that, where the applicable guideline 
range is in Zone D of the Sentencing Table (i.e., the minimum term of imprisonment specified in 
the applicable guideline range is 15 months or more), the minimum term must be satisfied by a 
sentence of imprisonment without the use of any of the imprisonment substitutes in 
subsection (e). 
 
*   *   * 
 
§4A1.3. Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)  
 
*   *   * 
 
(b) DOWNWARD DEPARTURES.— 
 
*   *   * 
 
(2) PROHIBITIONS.— 
 
(A) CRIMINAL HISTORY CATEGORY I.—AUnless otherwise specified, a 
departure below the lower limit of the applicable guideline range 
for Criminal History Category I is prohibited. 
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