On February 3, 2025, the National Association of Criminal Defense Lawyers (NACDL) submitted powerful comments to the U.S. Sentencing Commission in response to proposed amendments to the federal Sentencing Guidelines. Directed to the Honorable Judge Carlton W. Reeves, Chair of the Commission, NACDL’s letter offered praise where warranted, but forceful critique where changes would worsen mass incarceration, racial disparities, or the fairness of federal sentencing.
As a proud NACDL member, I view this submission as a bold and principled stand against policies that continue to erode constitutional protections and perpetuate systemic injustice. It reaffirms NACDL’s essential role in advocating for a sentencing system rooted in equity, evidence, and humanity.
Career Offender Guideline: An Overreach in Need of Retrenchment
At the core of NACDL’s concern is the proposal to move away from the long-standing “categorical” and “modified categorical” approaches in determining whether a prior conviction qualifies as a “crime of violence.” The Sentencing Commission instead proposes a “conduct-based” approach, examining facts from prior cases to decide if an offense involved violent conduct—even when such conduct was not legally necessary to the conviction.
NACDL forcefully rejects this shift. Moving to a conduct-based analysis would expand the already-overused career offender enhancement, further entrench racial disparities, and create new administrative burdens. Courts would be tasked with parsing often decades-old charging documents, plea agreements, or transcripts, many of which are incomplete or biased. Defendants—particularly those with prior state convictions—could see significant sentence increases based on unchallenged allegations or police narratives from years past.
“Assigning offenders to criminal history category VI under the career offender guideline is for reasons other than their recidivism risk.” — U.S. Sentencing Commission
NACDL rightly argues that the Commission’s own data refutes the notion that the enhancement enhances public safety. Defendants sentenced as career offenders do not reoffend at higher rates than similarly situated defendants. In fact, for those whose prior offenses involved drugs (as opposed to violence), recidivism rates are significantly lower than the average for Criminal History Category VI.
The enhancement also disproportionately impacts Black Americans. While only 24.5% of federal defendants in FY 2023 were Black, over 58% of those labeled as career offenders were Black. This imbalance isn’t accidental—it reflects systemic over-policing, coercive plea systems, and racial disparities in state-level convictions that are then repurposed to justify longer federal sentences.
Controlled Substance Offenses: Progress Worth Applauding
NACDL strongly supports the Commission’s proposal to redefine “controlled substance offense” to focus exclusively on certain federal statutes. By excluding state-level drug offenses, the proposal would reduce the guideline’s reliance on convictions obtained in widely disparate and often discriminatory state justice systems.
This change would also bring welcome clarity and workability to the guidelines. By removing the complex and litigation-heavy task of comparing state drug statutes to federal analogues, the Commission would ease the burden on courts and make outcomes more predictable and fair.
Even more encouraging, NACDL supports Option 3A of the proposed amendment, which limits qualifying prior convictions to those for which a defendant actually served more than five years in prison, and which are counted under §4A1.1(a). This narrow tailoring ensures that only the most serious prior offenses can trigger the enhancement—moving the guideline closer to the principle of proportionality.
Firearms Enhancements: Mens Rea Matters
Another important section of NACDL’s comments focuses on proposed amendments to §2K2.1, the guideline governing firearms offenses. Currently, two enhancements under this section—related to stolen firearms and altered serial numbers—can be applied without any requirement that the defendant knew the firearm was stolen or defaced.
This is a profound injustice.
NACDL applauds the Commission’s effort to correct this by imposing a clear mens rea requirement. As the Supreme Court has repeatedly emphasized, criminal punishment should be based on intentional conduct—not strict liability. Holding someone accountable for possessing a stolen firearm they didn’t know was stolen is a textbook example of punishing the blameless.
Under the proposed amendment, the enhancement would only apply if the defendant “knew, was willfully blind to the fact, or consciously avoided knowing” the relevant fact. This standard, already present in other parts of the guideline, is familiar to courts and will not create undue burdens.
Importantly, NACDL sees no persuasive reason to expand guideline penalties for machinegun conversion devices (MCDs). The Commission’s own data shows that courts are already imposing reasonable sentences under the current scheme. Creating new enhancements or definitions here would only invite further unnecessary sentencing inflation.
Simplifying Sentencing: A Modern Approach to Individualized Justice
Perhaps the most sweeping and forward-looking change proposed by the Commission is the simplification of the three-step sentencing process. Under current practice, judges must wade through a complex system of departures before even reaching the variance analysis permitted under United States v. Booker.
NACDL strongly supports eliminating the “departure” framework and aligning the guidelines with post-Booker jurisprudence, which holds that judges must evaluate each defendant as a unique individual and craft a sentence that reflects their particular circumstances and the statutory factors in 18 U.S.C. § 3553(a).
The continued reliance on “departure” language undermines the principle that the Guidelines are advisory—not mandatory. NACDL agrees with the Commission that judges often now skip formal departures in favor of variances, which are broader and more flexible.
Removing outdated departure categories will streamline sentencing and promote meaningful advocacy focused on humanizing the defendant—not just navigating legal technicalities. NACDL recommends supplementing this reform with robust judicial education, including primers on topics like trauma, addiction, youth development, and collateral consequences—ensuring judges have the tools to sentence wisely and compassionately.
Final Thoughts: Reform Must Reflect Reality
The Commission’s proposed amendments present a mixed bag. In some areas—especially the simplification of sentencing and the exclusion of state drug offenses from the career offender guideline—NACDL sees genuine progress. In others—such as the move toward a conduct-based analysis of prior convictions—the proposed changes threaten to reverse hard-fought gains and deepen structural injustice.
In every instance, NACDL insists that reform must be measured, grounded in evidence, and reflective of our highest constitutional values. It is not enough to tinker with technical language. The Commission must ensure that federal sentencing no longer reinforces the very inequalities it was meant to remedy.
As the federal sentencing landscape continues to evolve, NACDL remains a vital voice for the defense community—and for every individual whose liberty is at stake.
NACDL Speaks Out on Sentencing Guideline Reforms: A Call for Equity, Justice, and Common Sense
On February 3, 2025, the National Association of Criminal Defense Lawyers (NACDL) submitted powerful comments to the U.S. Sentencing Commission in response to proposed amendments to the federal Sentencing Guidelines. Directed to the Honorable Judge Carlton W. Reeves, Chair of the Commission, NACDL’s letter offered praise where warranted, but forceful critique where changes would worsen mass incarceration, racial disparities, or the fairness of federal sentencing.
As a proud NACDL member, I view this submission as a bold and principled stand against policies that continue to erode constitutional protections and perpetuate systemic injustice. It reaffirms NACDL’s essential role in advocating for a sentencing system rooted in equity, evidence, and humanity.
Career Offender Guideline: An Overreach in Need of Retrenchment
At the core of NACDL’s concern is the proposal to move away from the long-standing “categorical” and “modified categorical” approaches in determining whether a prior conviction qualifies as a “crime of violence.” The Sentencing Commission instead proposes a “conduct-based” approach, examining facts from prior cases to decide if an offense involved violent conduct—even when such conduct was not legally necessary to the conviction.
NACDL forcefully rejects this shift. Moving to a conduct-based analysis would expand the already-overused career offender enhancement, further entrench racial disparities, and create new administrative burdens. Courts would be tasked with parsing often decades-old charging documents, plea agreements, or transcripts, many of which are incomplete or biased. Defendants—particularly those with prior state convictions—could see significant sentence increases based on unchallenged allegations or police narratives from years past.
NACDL rightly argues that the Commission’s own data refutes the notion that the enhancement enhances public safety. Defendants sentenced as career offenders do not reoffend at higher rates than similarly situated defendants. In fact, for those whose prior offenses involved drugs (as opposed to violence), recidivism rates are significantly lower than the average for Criminal History Category VI.
The enhancement also disproportionately impacts Black Americans. While only 24.5% of federal defendants in FY 2023 were Black, over 58% of those labeled as career offenders were Black. This imbalance isn’t accidental—it reflects systemic over-policing, coercive plea systems, and racial disparities in state-level convictions that are then repurposed to justify longer federal sentences.
Controlled Substance Offenses: Progress Worth Applauding
NACDL strongly supports the Commission’s proposal to redefine “controlled substance offense” to focus exclusively on certain federal statutes. By excluding state-level drug offenses, the proposal would reduce the guideline’s reliance on convictions obtained in widely disparate and often discriminatory state justice systems.
This change would also bring welcome clarity and workability to the guidelines. By removing the complex and litigation-heavy task of comparing state drug statutes to federal analogues, the Commission would ease the burden on courts and make outcomes more predictable and fair.
Even more encouraging, NACDL supports Option 3A of the proposed amendment, which limits qualifying prior convictions to those for which a defendant actually served more than five years in prison, and which are counted under §4A1.1(a). This narrow tailoring ensures that only the most serious prior offenses can trigger the enhancement—moving the guideline closer to the principle of proportionality.
Firearms Enhancements: Mens Rea Matters
Another important section of NACDL’s comments focuses on proposed amendments to §2K2.1, the guideline governing firearms offenses. Currently, two enhancements under this section—related to stolen firearms and altered serial numbers—can be applied without any requirement that the defendant knew the firearm was stolen or defaced.
This is a profound injustice.
NACDL applauds the Commission’s effort to correct this by imposing a clear mens rea requirement. As the Supreme Court has repeatedly emphasized, criminal punishment should be based on intentional conduct—not strict liability. Holding someone accountable for possessing a stolen firearm they didn’t know was stolen is a textbook example of punishing the blameless.
Under the proposed amendment, the enhancement would only apply if the defendant “knew, was willfully blind to the fact, or consciously avoided knowing” the relevant fact. This standard, already present in other parts of the guideline, is familiar to courts and will not create undue burdens.
Importantly, NACDL sees no persuasive reason to expand guideline penalties for machinegun conversion devices (MCDs). The Commission’s own data shows that courts are already imposing reasonable sentences under the current scheme. Creating new enhancements or definitions here would only invite further unnecessary sentencing inflation.
Simplifying Sentencing: A Modern Approach to Individualized Justice
Perhaps the most sweeping and forward-looking change proposed by the Commission is the simplification of the three-step sentencing process. Under current practice, judges must wade through a complex system of departures before even reaching the variance analysis permitted under United States v. Booker.
NACDL strongly supports eliminating the “departure” framework and aligning the guidelines with post-Booker jurisprudence, which holds that judges must evaluate each defendant as a unique individual and craft a sentence that reflects their particular circumstances and the statutory factors in 18 U.S.C. § 3553(a).
The continued reliance on “departure” language undermines the principle that the Guidelines are advisory—not mandatory. NACDL agrees with the Commission that judges often now skip formal departures in favor of variances, which are broader and more flexible.
Removing outdated departure categories will streamline sentencing and promote meaningful advocacy focused on humanizing the defendant—not just navigating legal technicalities. NACDL recommends supplementing this reform with robust judicial education, including primers on topics like trauma, addiction, youth development, and collateral consequences—ensuring judges have the tools to sentence wisely and compassionately.
Final Thoughts: Reform Must Reflect Reality
The Commission’s proposed amendments present a mixed bag. In some areas—especially the simplification of sentencing and the exclusion of state drug offenses from the career offender guideline—NACDL sees genuine progress. In others—such as the move toward a conduct-based analysis of prior convictions—the proposed changes threaten to reverse hard-fought gains and deepen structural injustice.
In every instance, NACDL insists that reform must be measured, grounded in evidence, and reflective of our highest constitutional values. It is not enough to tinker with technical language. The Commission must ensure that federal sentencing no longer reinforces the very inequalities it was meant to remedy.
As the federal sentencing landscape continues to evolve, NACDL remains a vital voice for the defense community—and for every individual whose liberty is at stake.
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