United Sentencing Commission 2025 Guideline Amendments

Due to be become effective on November 1, 2025.  However, if you or a family member are due to be sentenced before November, kindly contact our office for assistance.

To answer one frequent question before diving in: the Commission seems to have decided not to take up many of the proposed amendments, including career offender and some of the bigger drug guideline proposals. I know many of you were disappointed by this news, but the adopted amendments still offer plenty of reasons to get excited. 

1.                Simplification: Let’s 2-step!

Major update of provisions throughout the Guidelines Manual in the name of both simplifying the Manual and rendering it consistent with Booker and post-Booker sentencing practice. 

• Two big changes: rewrites much of the background material in Chapter 1 and eliminates departures (except for substantial assistance and “fast track”). Now sentencing = a 2-step process.

o         

o        Chapter 1:

–    Rewrites big portions of Chapter 1’s background provisions, which explain the statutory/intended purpose of the Guidelines.

–     Most significantly, the sentencing process now consists of only two steps (and not the three steps that the Manual previously described).

·                     Step 1 is to calculate the advisory guidelines range

·                     Step 2 is to determine the sentence pursuant to 18 U.S.C. § 3553(a).      

o        Departures (byee!):

–     Eliminates the concept of departures from the Guidelines Manual.

                     Two exceptions: Only two departure concepts have been directly preserved, the departure for fast-track cases is now found at §3F1.1 and §5K1.1 remains substantially unchanged and now without foregoing the word departure. 

–     Notably deletes entirely the §5H “Specific Offender Characteristics” policy statements, some of which purported to limit courts’ discretion to grant downward adjustments.       

–     Even in a district where judges already use variances instead of departures, it seems helpful that the Manual itself now stresses that the most important and overriding goal for sentencing is § 3553a’s parsimony principle as it relates to penological purposes. The Guidelines serve that goal, but to the extent that a guideline range doesn’t fit that principle for a particular client, the parsimony principle should win.

• What about §5H1.1?  We can still use the Commission’s reason for amendment language from Amendment 829 (citing the “evolving science and data surrounding youthful individuals” presented to the Commission at last year’s hearing) in pushing for variances for young individuals.

2.            Supervised Release: Individualized assessments rule the day

                The biggest changes to the SR guidelines in decades! 

a.                  Chapter 5, Part D: Imposition of SR Term

• Amendment goals: provide courts with greater discretion to impose a term of SR based on an individualized assessment of the person being sentenced, and ensure chapter 5 provisions serve “rehabilitative ends, distinct from those of incarceration.”  
  • New (helpful!) Ch. 5 Intro Commentary stressing the individualized assessment of need, as well as the rehabilitative purpose of SR
  • §5D1.1: Imposition of a term of SR

–  No longer tells court to impose SR to follow prison sentences of >1 year 

–  If not required by statute, court can order SR “when warranted by an individualized assessment of the need for supervision”

–  Directs courts to state reasons on record for not/imposing a term of SR

–  New language in the commentary flagging interaction of SR with FSA time credits

        Note: this area is still being litigated, but we think the requirement is satisfied by a nominal term of SR—please reach out if you are dealing with this issue

• §5D1.2: Imposition of a term of SR

–  No more recommended minimum term lengths!

–  Individualized assessment shows up again

–  Directs courts to state reasons on record for length of term

–  No longer recommends lifetime SR in sex offenses (!)

• §5D1.3: Conditions of SR

–  (b) Discretionary conditions: adds individualized assessment language

–  “Standard” conditions: now notes the court “may modify, expand, or omit in appropriate cases”

–  Special conditions: no longer recommends them, instead noting one or more “may be appropriate in a particular case”

·         New special conditions prohibiting victim contact

·         New special condition requiring educational or vocational training

• New §5D1.4: Modification, Early Termination, and Extension of SR  

–  Individualized assessment makes an appearance once again

–  Reminds courts they can modify, early terminate, or extend (subject to stat max) terms of SR

–  §5D1.4(b): Early Termination, notes that after one year, “court may terminate the remaining term of supervision and discharge the defendant if the court determines, following consultation with the government and the probation officer, that the termination is warranted by the conduct of the defendant and in the interest of justice. See 18 U.S.C. § 3583(e)(1)”

        Commentary offers factors for courts to consider for early termination

b.  Chapter 7: Probation and SR Violations

• Goals: give courts more discretion to respond to a violation of a condition of SR and ensure the provisions in Chapter 7 reflect the differences between probation and SR
  • New structure distinguishes SR and Probation violations: §7B: now focuses solely on probation & new §7C focuses on SR

• New helpful §7C introductory commentary: 

–  Need for individualized assessment in responding to violations

–  Reminds courts that upon finding of violation, court “may continue [SR], modify the conditions, extend the term, or revoke” and impose imprisonment 

–  Notes rehabilitation purpose of SR and “encourages courts—where possible—to consider a wide array of options to respond to non-compliant behavior and violations of the conditions of supervised release.”

• Reminds courts “punishment for new criminal conduct is not the primary goal of a revocation sentence.”

• §7C1.3: Responses to Violations of Supervised Release (Policy Statement)

–  Upon report of non-compliance, court should conduct an individualized assessment to determine appropriate response. 

–  Upon a finding of a violation for which revocation is required by statute, the court would be required to revoke supervised release. But if any any other violation, encourages court to conduct an individualized assessment, taking into consideration the grade of the violation, to determine whether to revoke supervised release.

–  New language: “Revocation is generally appropriate for a Grade A violation, often appropriate for a Grade B violation, and may be appropriate for a Grade C violation.”

–  Commentary reminds courts of other options under § 3583, like extension, modification, revocation, or termination

–  Commentary notes that “the court should consider issuing a summons rather than an arrest warrant where appropriate”

• §7C1.4: Revocation of Supervised Release (Policy Statement)

–  Court required to conduct an individualized assessmentto determine the appropriate length of imprisonment given recommendations in §7C1.5 table

–  Language change: any term of imprisonment “shallgenerally should be ordered to be served consecutively to any sentence of imprisonment the defendant is serving”

–  Updates commentary re: violations of intermittent/community/home confinement

• §7C1.5: SR revocation table

§  No big changes, but individualized assessment language added

• • Note: While this amendment highlights the rehabilitative purpose of SR, keep in mind that the Supreme Court heard argument in February in Esteras v. United States, considering whether judges can consider the § 3553(a)(2)(A) factors (offense seriousness, respect for law, just punishment), even though Congress excluded § 3553(a)(2)(A) from 18 U.S.C. § 3583(e)’s list of factors to consider when revoking supervised release.  
  •  

3.            Drugs: Glass half full?

     The Commission promulgated two drug-related amendments, one good and one harmful.               

a.                  Mitigating Role 

o        Amendment re: §3B1.2’s mitigating role provisions that applies specifically to people sentenced for drug trafficking offenses.

o        New Special Instruction at §2D1.1(e)(2): provides that, in addition to circumstances identified in §3B1.2, role reduction is “generally warranted” in drug offenses where a person’s “primary function…was performing a low-level trafficking function.”

–     Provides that a four-level reduction is generally warranted for a person who was “plainly among the lowest level of drug trafficking functions, such as serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout.”

–     The two-level reduction is generally warranted if the client’s primary function was “performing another low-level trafficking function, such as distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit….” In other words, a person convicted for street-level dealing whose primary motivation was other-than profit (like addiction) is specifically included.

–     Specifies that “adjustment shall apply regardless of whether the offense involved other participants in addition to the defendant, and regardless of whether the defendant was substantially less culpable than the average participant in the criminal activity” noting it is “heavily dependent upon the facts of the particular case.”

                    Great language for those of us in front of judges who think that individuals charged alone should not receive role reductions or believe that even low-level players are indispensable to an organization.

o        New: also lowers §2D1.1(a)(5)’s base offense level caps that apply to people receiving the 3B1.2 reduction.

–     A person receiving the four-level decrease will now have a base offense level cap of 30.

–     A person receiving the two-level decrease will have a base offense level cap of 32, which falls to 31 if their offense level would have been 34, and 30 if their offense level would have been 32.

o          Notably, the Commission expressly stated that it was making the §3B1.2 changes “to address…concerns” both that the mitigating role reduction is not applied as broadly as it should be in drug cases and to address concerns that sentences are too severe for individuals performing low-level functions. 

–     It will be important not only to build up factual support for clients’ low-level trafficking functions in their offense, but also to emphasize to judges how plainly the Commission is stating that the courts have not been applying the reduction as frequently as intended.

        b. Fentanyl Misrepresentation

o        Amends enhancement at §2D1.1(b)(13) for misrepresentation of fentanyl, lowering the mens rea required to trigger the enhancement

–     New mens rea required = “reckless disregard” instead of the prior “willful blindness” or knowledge requirement.

–     The Commission notes that commenters (aka DOJ) had previously complained that the SOC is not applied frequently and had suggested that it must be due to the difficulty of proving mens rea.  

4.            Firearms: Machinegun conversion devices (“MCDs” aka Glock switches) 

      
     New §2K2.1 SOC enhancement for firearms offenses that involve MCDs.

• New (b)(5) enhancement
  • (b)(5)(a) provides for +2 level increase if person possessed 4 or more MCDs, or if they attempted to/conspired to/did actually transfer or sell an MCD 
  • (b)(5)(b) provides for +4 level increase if a person possesses 30 or more MCDs.
  • Includes definition of MCD, tracking language in 26 USC § 5845(b).
  • Note: subject to the cumulative offense level cap of level 29.

5.            Circuit Conflicts: Physical restraint and traffic stops

a.                  §2B3.1(b)(4)(B) “physically restrained” enhancement

o        Issue: Whether the two-level “physically restrained” enhancement in the robbery guideline (§2B3.1(b)(4)(B)) can be applied to situations where a person is restrained from moving at gunpoint but is not otherwise immobilized through physical measures.

• Background: The Second, Third, Fifth, Seventh, and Ninth Circuits have held that the psychological coercion of pointing a gun at a victim, without more, does not qualify and that a restraint must be “physical” for the enhancement to apply. On the other side, the First, Fourth, Sixth, Tenth, and Eleventh Circuits have held that restricting a victim from moving at gunpoint qualifies for the enhancement. Similar enhancements appear in §2B3.2(b)(5)(B) and 2E2.1(b)(3)(B), and these guidelines were amended as well to reflect the changes to the robbery guideline.
  • The Commission adopted the approach of the Second, Third, Fifth, Seventh, and Ninth Circuits, removing the language in §2B3.1(b)(4)(B), “if any person was physically restrained,” and replacing it with new language: “if any person’s freedom of movement was restricted through physical contact or confinement, such as being tied, bound, or locked up…”
  • The Commission made a “clarifying” change to §2B3.1(b)(2)(B), the 6-level enhancement that applies when a person “otherwise used” a firearm during a robbery: It deleted the term “otherwise used,” replacing it with “if a firearm was used to convey a specific (not general) threat of harm (e.g., pointing the firearm at a specific victim or victims; directing the movement of a specific victim or victims with the firearm) or to make physical contact with a victim (e.g., pistol whip; firearm placed against victim’s body)….”
    • There was some confusion at the hearing about the distinction between “brandishing” a firearm (+5) and otherwise using a firearm (+6), so this change seems meant to address the difference between the two. Takes the approach of circuits that have held that “brandish” covers the general display of a weapon while a firearm is “otherwise used” where it is employed for a specific threat.

                  b. Traffic stops/intervening arrests

o        Issue: Whether a traffic stop and citation/summons counts as an “intervening arrest” for purposes of the rule at 4A1.2(a)(2) that prior sentences should be counted separately if they are separated by an intervening arrest.       

o        Background: Every circuit to decide this issue except for the 7th has held that a formal, custodial arrest is required and that a traffic stop, followed by issuance of a citation or summons, does not qualify as an “arrest.” 

o        The Commission rejected the Seventh Circuit’s broad view, adding the following new language to 4A1.2(a)(2):
“For purposes of this provision, a traffic stop is not an intervening arrest.”