Practice Alert: Federal Sentencing Guideline Amendment Providing Two-Level Downward Adjustment for “Zero-Point” Offenders

By Timothy E. Warriner, Criminal Law Specialist and Advisor to CLA Criminal Law Section

The United States Sentencing Commission has recently introduced a significant adjustment for zero-point offenders through a newly created Section 4C1.1 of the U.S. Sentencing Guidelines that would go into effect on November 1, 2023. This adjustment acknowledges that defendants with no criminal history points (zero-point offenders) should be treated differently during sentencing.

The New Adjustment for Zero-Point Offenders

The newly created U.S.S.G. § 4C1.1 provides a 2-point reduction in the offense level for certain zero-point offenders. To qualify for the 2-level reduction, the defendant must meet all of the following criteria:

1. The defendant must not have received any criminal history points.

2. The defendant must not have received an adjustment for terrorism (covered by § 3A1.4).

3. The defendant must not have used violence or made credible threats of violence in connection with the offense.

4. The offense must not have resulted in death or serious bodily injury.

5. The offense of conviction must not be a sex offense.

6. The defendant must not have personally caused substantial financial hardship (to be determined independently of the application of § 2B1.1(b)(c)).

7. The defendant must not have possessed, received, purchased, transported, transferred, sold, or otherwise disposed of a firearm or other dangerous weapon (or induced another participant to do so) in connection with the offense.

8. The offense of conviction must not involve individual rights (covered by § 2H1.1).

9. The defendant must not have received an adjustment under § 3A1.1 (hate crime motivation or vulnerable victim) or § 3A1.5 (serious human rights offense).

10. The defendant must not have received an adjustment under § 3B1.1 (aggravating role) and must not have been engaged in a continuing criminal enterprise.

Related Guideline Amendments

The Sentencing Commission has amended § 5C1.1 application note 4 to advise that a sentence other than imprisonment is generally appropriate if a person is in Zone A or B of the sentencing table and qualifies for a § 4C1.1 reduction. It also suggests that a departure, including a non-imprisonment sentence, may be suitable for a person in any sentencing zone if they qualify for § 4C1.1 and the guidelines range overstates the gravity of the offense.