Some new questions about how new guidelines are retroactively impacting old federal sentences

Spring is often about new beginnings, and I find myself with a couple new questions about whether, when and how some new guidelines have been (or have not yet been) impacting some old federal sentences.  This post may be mostly for the guideline-inclined, but here goes:

Question 1: How is implementation of the USSC’s recent criminal history amendments (Amendment 821) going?  The US Sentencing Commission back in August 2023 voted to make retroactive its two big criminal history amendments (which reduced the impact of “status points” and lowered sentences for certain “zero point”offenders) effective as of February 1, 2024.  USSC data suggested that nearly 20,000 current federal prisoners could be eligible for a sentence reduction, and now I am wondering how implementation is going.  I expect the USSC will release retroactivity data in the coming months and years, and I hope the (often challenging) process of retroactive guideline implementation is going smoothly.

Question 2:  Are the Commission’s retroactive guidelines rules wrongfully excluding too many persons?  This question is prompted by this new article in the lastest issue of the Federal Sentencing Reporter authored by Steve Sady titled “Retroactive Guidelines Amendments Must Apply to Individuals Who Receive Below-Guidelines Sentences to Protect the Individualized Sentencing Required by Federal Sentencing Statutes.”  As the title suggests, this article argues that the USSC’s retroactivity rules are too narrow.  Here is the article’s abstract:

Retroactive amendments to the federal sentencing guidelines, such as Amendment 821 to the calculation of criminal history, confer discretion on judges to reduce sentences when the Sentencing Commission determines that a guideline is overly harsh.  The statute on retroactive amendments, 18 U.S.C. § 3582(c)(2), authorizes modification of sentences “based on” the pre-amendment guidelines range.  From the time of the initial Commission until 2011, all defendants whose guidelines range calculations included the amended guideline were eligible for a comparably lower sentence, regardless of whether the sentence was below-, within-, or over the guidelines range, under U.S.S.G. § 1B1.10.  But in response to Booker, the Commission amended the policy statement in 2011 to bar from eligibility persons who received below-guidelines sentences, whether by downward variance or departure.

This change reflected the earlier Commission’s hostility to Booker variances under the advisory guidelines and conflicts with subsequent Supreme Court authority holding that downward variances are “based on” the guidelines range within the meaning of § 3582(c)(2).  By disqualifying those who had grounds for below-guidelines sentences, the Commission fails to follow statutory directives regarding individualized sentencing and avoidance of unwarranted disparities.  The exclusion of persons who established that downward departure or variance was warranted under the overly harsh pre-amendment guidelines is irrational and unfair, apparently based on an anachronistic attachment to the mandatory guidelines.  The Commission should amend its policy statement without delay to recognize eligibility for all defendants whose sentences are “based on” the guidelines range within the broad meaning of the statute.