U.S.S.G. §1B1.10

(a) AUTHORITY.—

(1) IN GENERAL.—In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has

subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (d) below, the court may reduce the

defendant’s term of imprisonment as provided by 18 U.S.C.

§ 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction

in the defendant’s term of imprisonment shall be consistent with this

policy statement.

(2) EXCLUSIONS.—A reduction in the defendant’s term of imprisonment is

not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if—

(A) none of the amendments listed in subsection (d) is applicable to

the defendant; or

(B) an amendment listed in subsection (d) does not have the effect of

lowering the defendant’s applicable guideline range.

(3) LIMITATION.—Consistent with subsection (b), proceedings under

18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a

full resentencing of the defendant.

(b) DETERMINATION OF REDUCTION IN TERM OF IMPRISONMENT.—

(1) IN GENERAL.—In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment under 18 U.S.C.

§ 3582(c)(2) and this policy statement is warranted, the court shall

determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in

subsection (d) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only

the amendments listed in subsection (d) for the corresponding guideline provisions that were applied when the defendant was sentenced

and shall leave all other guideline application decisions unaffected.

(2) LIMITATION AND PROHIBITION ON EXTENT OF REDUCTION.—

(A) LIMITATION.—Except as provided in subdivision (B), the court

shall not reduce the defendant’s term of imprisonment under

18 U.S.C. § 3582(c)(2) and this policy statement to a term that is

less than the minimum of the amended guideline range determined under subdivision (1) of this subsection.

(B) EXCEPTION FOR SUBSTANTIAL ASSISTANCE.—If the term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the

time of sentencing pursuant to a government motion to reflect

the defendant’s substantial assistance to authorities, a reduction

comparably less than the amended guideline range determined

under subdivision (1) of this subsection may be appropriate.

(C) PROHIBITION.—In no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has

already served.

(c) CASES INVOLVING MANDATORY MINIMUM SENTENCES AND SUBSTANTIAL ASSISTANCE.—If the case involves a statutorily required minimum sentence

and the court had the authority to impose a sentence below the statutorily

required minimum sentence pursuant to a government motion to reflect

the defendant’s substantial assistance to authorities, then for purposes of

this policy statement the amended guideline range shall be determined

without regard to the operation of §5G1.1 (Sentencing on a Single Count

of Conviction) and §5G1.2 (Sentencing on Multiple Counts of Conviction).

(d) COVERED AMENDMENTS.—Amendments covered by this policy statement

are listed in Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371,

379, 380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, 606,

657, 702, 706 as amended by 711, 715, 750 (parts A and C only), 782 (subject to subsection (e)(1)), and 821 (parts A and B, subpart 1 only and subject

to subsection (e)(2)).

(e) SPECIAL INSTRUCTIONS.—

(1) The court shall not order a reduced term of imprisonment based on

Amendment 782 unless the effective date of the court’s order is November 1, 2015, or later.

(2) The court shall not order a reduced term of imprisonment based on

Part A or Part B, Subpart 1 of Amendment 821 unless the effective

date of the court’s order is February 1, 2024, or later.

Commentary

Application Notes:

1. Application of Subsection (a).—

(A) Eligibility.—Eligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by

an amendment listed in subsection (d) that lowers the applicable guideline range (i.e., the

guideline range that corresponds to the offense level and criminal history category determined pursuant to §1B1.1(a)(1)–(7), which is determined before consideration of Part K of

Chapter Five and §1B1.1(b)). Accordingly, a reduction in the defendant’s term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) and is not consistent with this policy

statement if: (i) none of the amendments listed in subsection (d) is applicable to the defendant; or (ii) an amendment listed in subsection (d) is applicable to the defendant but the

amendment does not have the effect of lowering the defendant’s applicable guideline range

because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment).

(B) Factors for Consideration.—

(i) In General.—Consistent with 18 U.S.C. § 3582(c)(2), the court shall consider the factors set forth in 18 U.S.C. § 3553(a) in determining: (I) whether a reduction in the

defendant’s term of imprisonment is warranted; and (II) the extent of such reduction,

but only within the limits described in subsection (b).

(ii) Public Safety Consideration.—The court shall consider the nature and seriousness

of the danger to any person or the community that may be posed by a reduction in the

defendant’s term of imprisonment in determining: (I) whether such a reduction is warranted; and (II) the extent of such reduction, but only within the limits described in

subsection (b).

(iii) Post-Sentencing Conduct.—The court may consider post-sentencing conduct of the

defendant that occurred after imposition of the term of imprisonment in determining:

(I) whether a reduction in the defendant’s term of imprisonment is warranted; and

(II) the extent of such reduction, but only within the limits described in subsection (b).

2. Application of Subsection (b)(1).—In determining the amended guideline range under subsection (b)(1), the court shall substitute only the amendments listed in subsection (d) for the

corresponding guideline provisions that were applied when the defendant was sentenced. All

other guideline application decisions remain unaffected.

3. Application of Subsection (b)(2).—Under subsection (b)(2), the amended guideline range determined under subsection (b)(1) and the term of imprisonment already served by the defendant

limit the extent to which the court may reduce the defendant’s term of imprisonment under

18 U.S.C. § 3582(c)(2) and this policy statement. Specifically, as provided in subsection (b)(2)(A),

if the term of imprisonment imposed was within the guideline range applicable to the defendant

at the time of sentencing, the court may reduce the defendant’s term of imprisonment to a term

that is no less than the minimum term of imprisonment provided by the amended guideline range

determined under subsection (b)(1). For example, in a case in which: (A) the guideline range

applicable to the defendant at the time of sentencing was 70 to 87 months; (B) the term of imprisonment imposed was 70 months; and (C) the amended guideline range determined under

subsection (b)(1) is 51 to 63 months, the court may reduce the defendant’s term of imprisonment,

but shall not reduce it to a term less than 51 months.

If the term of imprisonment imposed was outside the guideline range applicable to the defendant

at the time of sentencing, the limitation in subsection (b)(2)(A) also applies. Thus, if the term of

imprisonment imposed in the example provided above was not a sentence of 70 months (within

the guidelines range) but instead was a sentence of 56 months (constituting a sentence that is

below the otherwise applicable guideline range), the court likewise may reduce the defendant’s

term of imprisonment, but shall not reduce it to a term less than 51 months.

Subsection (b)(2)(B) provides an exception to this limitation, which applies if the term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the

defendant’s substantial assistance to authorities. In such a case, the court may reduce the defendant’s term, but the reduction is not limited by subsection (b)(2)(A) to the minimum of the

amended guideline range. Instead, as provided in subsection (b)(2)(B), the court may, if appropriate, provide a reduction comparably less than the amended guideline range. Thus, if the term

of imprisonment imposed in the example provided above was 56 months pursuant to a government motion to reflect the defendant’s substantial assistance to authorities (representing a reduction of 20 percent below the minimum term of imprisonment provided by the guideline range

applicable to the defendant at the time of sentencing), a reduction to a term of imprisonment of

41 months (representing a reduction of approximately 20 percent below the minimum term of

imprisonment provided by the amended guideline range) would amount to a comparable reduction and may be appropriate.

The provisions authorizing such a government motion are §5K1.1 (Substantial Assistance to Authorities) (authorizing the court, upon government motion, to impose a sentence that is below the

otherwise applicable guideline range based on the defendant’s substantial assistance); 18 U.S.C.

§ 3553(e) (authorizing the court, upon government motion, to impose a sentence below a statutory

minimum to reflect the defendant’s substantial assistance); and Fed. R. Crim. P. 35(b) (authorizing the court, upon government motion, to reduce a sentence to reflect the defendant’s substantial assistance).

In no case, however, shall the term of imprisonment be reduced below time served. See subsection (b)(2)(C). Subject to these limitations, the sentencing court has the discretion to determine

whether, and to what extent, to reduce a term of imprisonment under this section.

4. Application of Subsection (c).—As stated in subsection (c), if the case involves a statutorily

required minimum sentence and the court had the authority to impose a sentence below the

statutorily required minimum sentence pursuant to a government motion to reflect the defendant’s substantial assistance to authorities, then for purposes of this policy statement the

amended guideline range shall be determined without regard to the operation of §5G1.1 (Sentencing on a Single Count of Conviction) and §5G1.2 (Sentencing on Multiple Counts of Conviction). For example:

(A) Defendant A is subject to a mandatory minimum term of imprisonment of 120 months. The

original guideline range at the time of sentencing was 135 to 168 months, which is entirely

above the mandatory minimum, and the court imposed a sentence of 101 months pursuant

to a government motion to reflect the defendant’s substantial assistance to authorities. The

court determines that the amended guideline range as calculated on the Sentencing Table

is 108 to 135 months. Ordinarily, §5G1.1 would operate to restrict the amended guideline

range to 120 to 135 months, to reflect the mandatory minimum term of imprisonment. For

purposes of this policy statement, however, the amended guideline range remains 108 to

135 months.

To the extent the court considers it appropriate to provide a reduction comparably less than

the amended guideline range pursuant to subsection (b)(2)(B), Defendant A’s original sentence of 101 months amounted to a reduction of approximately 25 percent below the minimum of the original guideline range of 135 months. Therefore, an amended sentence of

81 months (representing a reduction of approximately 25 percent below the minimum of

the amended guideline range of 108 months) would amount to a comparable reduction and

may be appropriate.

(B) Defendant B is subject to a mandatory minimum term of imprisonment of 120 months. The

original guideline range at the time of sentencing (as calculated on the Sentencing Table)

was 108 to 135 months, which was restricted by operation of §5G1.1 to a range of 120 to

135 months. See §5G1.1(c)(2). The court imposed a sentence of 90 months pursuant to a

government motion to reflect the defendant’s substantial assistance to authorities. The

court determines that the amended guideline range as calculated on the Sentencing Table

is 87 to 108 months. Ordinarily, §5G1.1 would operate to restrict the amended guideline

range to precisely 120 months, to reflect the mandatory minimum term of imprisonment.

See §5G1.1(b). For purposes of this policy statement, however, the amended guideline range

is considered to be 87 to 108 months (i.e., unrestricted by operation of §5G1.1 and the statutory minimum of 120 months).

To the extent the court considers it appropriate to provide a reduction comparably less than

the amended guideline range pursuant to subsection (b)(2)(B), Defendant B’s original sentence of 90 months amounted to a reduction of approximately 25 percent below the original

guideline range of 120 months. Therefore, an amended sentence of 65 months (representing

a reduction of approximately 25 percent below the minimum of the amended guideline

range of 87 months) would amount to a comparable reduction and may be appropriate.

5. Application to Amendment 750 (Parts A and C Only).—As specified in subsection (d), the

parts of Amendment 750 that are covered by this policy statement are Parts A and C only. Part A

amended the Drug Quantity Table in §2D1.1 for crack cocaine and made related revisions to the

Drug Equivalency Tables (currently called Drug Conversion Tables) in the Commentary to

§2D1.1 (see §2D1.1, comment. (n.8)). Part C deleted the cross reference in §2D2.1(b) under which

an offender who possessed more than 5 grams of crack cocaine was sentenced under §2D1.1.

6. Application to Amendment 782.—As specified in subsection (d) and (e)(1), Amendment 782

(generally revising the Drug Quantity Table and chemical quantity tables across drug and chemical types) is covered by this policy statement only in cases in which the order reducing the defendant’s term of imprisonment has an effective date of November 1, 2015, or later.

A reduction based on retroactive application of Amendment 782 that does not comply with the

requirement that the order take effect on November 1, 2015, or later is not consistent with this

policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2).

Subsection (e)(1) does not preclude the court from conducting sentence reduction proceedings and

entering orders under 18 U.S.C. § 3582(c)(2) and this policy statement before November 1, 2015,

provided that any order reducing the defendant’s term of imprisonment has an effective date of

November 1, 2015, or later.

7. Application to Amendment 821 (Parts A and B, Subpart 1 Only).—As specified in subsection (d), the parts of Amendment 821 that are covered by this policy statement are Parts A and B,

Subpart 1 only, subject to the special instruction at subsection (e)(2). Part A amended §4A1.1

(Criminal History Category) to limit the overall criminal history impact of “status points”

(i.e., the additional criminal history points given to defendants for the fact of having committed

the instant offense while under a criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status). Part B, Subpart 1 created a new

Chapter Four guideline at §4C1.1 (Adjustment for Certain Zero-Point Offenders) to provide a

decrease of two levels from the offense level determined under Chapters Two and Three for defendants who did not receive any criminal history points under Chapter Four, Part A and whose

instant offense did not involve specified aggravating factors.

The special instruction at subsection (e)(2) delays the effective date of orders reducing a defendant’s term of imprisonment to a date no earlier than February 1, 2024. A reduction based on the

retroactive application of Part A or Part B, Subpart 1 of Amendment 821 that does not comply

with the requirement that the order take effect no earlier than February 1, 2024, is not consistent

with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2). Subsection (e)(2), however, does not preclude the court from conducting sentence reduction proceedings

and entering orders under 18 U.S.C. § 3582(c)(2) and this policy statement before February 1,

2024, provided that any order reducing the defendant’s term of imprisonment has an effective

date of February 1, 2024, or later.

8. Supervised Release.—

(A) Exclusion Relating to Revocation.—Only a term of imprisonment imposed as part of

the original sentence is authorized to be reduced under this section. This section does not

authorize a reduction in the term of imprisonment imposed upon revocation of supervised

release.

(B) Modification Relating to Early Termination.—If the prohibition in subsection (b)(2)(C)

relating to time already served precludes a reduction in the term of imprisonment to the

extent the court determines otherwise would have been appropriate as a result of the

amended guideline range determined under subsection (b)(1), the court may consider any

such reduction that it was unable to grant in connection with any motion for early termination of a term of supervised release under 18 U.S.C. § 3583(e)(1). See §5D1.4 (Modification, Early Termination, and Extension of Supervised Release (Policy Statement)). However, the fact that a defendant may have served a longer term of imprisonment than the

court determines would have been appropriate in view of the amended guideline range determined under subsection (b)(1) shall not, without more, provide a basis for early termination of supervised release. Rather, the court should take into account the totality of circumstances relevant to a decision to terminate supervised release, including the term of supervised release that would have been appropriate in connection with a sentence under the

amended guideline range determined under subsection (b)(1).

9. Use of Policy Statement in Effect on Date of Reduction.—Consistent with subsection (a)

of §1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing), the court shall use the

version of this policy statement that is in effect on the date on which the court reduces the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).

Background: Section 3582(c)(2) of title 18, United States Code, provides: “[I]n the case of a defendant

who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term

of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are

applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing

Commission.”

This policy statement provides guidance and limitations for a court when considering a motion

under 18 U.S.C. § 3582(c)(2) and implements 28 U.S.C. § 994(u), which provides: “If the Commission

reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or

category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” The Supreme Court has concluded that proceedings under section 3582(c)(2) are not governed by United States v. Booker, 543 U.S.

220 (2005), and this policy statement remains binding on courts in such proceedings. See Dillon v.

United States, 560 U.S. 817 (2010).

Among the factors considered by the Commission in selecting the amendments included in subsection (d) were the purpose of the amendment, the magnitude of the change in the guideline range

made by the amendment, and the difficulty of applying the amendment retroactively to determine an

amended guideline range under subsection (b)(1).

The listing of an amendment in subsection (d) reflects policy determinations by the Commission

that a reduced guideline range is sufficient to achieve the purposes of sentencing and that, in the sound

discretion of the court, a reduction in the term of imprisonment may be appropriate for previously

sentenced, qualified defendants. The authorization of such a discretionary reduction does not otherwise affect the lawfulness of a previously imposed sentence, does not authorize a reduction in any

other component of the sentence, and does not entitle a defendant to a reduced term of imprisonment

as a matter of right.

The Commission has not included in this policy statement amendments that generally reduce

the maximum of the guideline range by less than six months. This criterion is in accord with the

legislative history of 28 U.S.C. § 994(u) (formerly § 994(t)), which states: “It should be noted that the

Committee does not expect that the Commission will recommend adjusting existing sentences under

the provision when guidelines are simply refined in a way that might cause isolated instances of existing sentences falling above the old guidelines* or when there is only a minor downward adjustment

in the guidelines. The Committee does not believe the courts should be burdened with adjustments in

these cases.” S. Rep. 225, 98th Cong., 1st Sess. 180 (1983).

*So in original. Probably should be “to fall above the amended guidelines”.