Retroactivity Lurks In USSC Proposed Amendments – Update for February 2, 2026

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SLEEPER

Back in 2024, the Sentencing Commission proposed a slate of four proposed Guidelines changes to be retroactive. However, at the USSC’s August 2024 meeting, the retroactivity for the four Guideline changes — covering acquitted conduct, gun enhancements, 18 USC § 922(g)/drug/18 § USC 924(c) joint convictions, and a beneficial change in the drug Guidelines — did not go forward because of philosophical differences in how to approach retroactivity.

US District Judge Carlton Reeves, chairman of the Commission, said, “Many have called for the Commission to identify clear principles that will guide its approach to retroactivity. After deep deliberation, we have decided to heed those calls. For that reason, we will not be voting on retroactivity today.”

Last year, the Commission considered whether 2025 changes in mitigating roles, drug offense, robbery and the definition of physical restraint should be made retroactive. Again, no decision was made.

Buried deep in the USSC’s 2026 request for public comment on proposed Guidelines amendments is a “sleeper” request for “public comment regarding whether, pursuant to 18 USC § 3582(c)(2) and 28 USC § 994(u), any proposed amendment published in this notice should be included… as an amendment that may be applied retroactively to previously sentenced defendants.” The Commission asks that public comment address all of the factors listed in USSG § 1B1.10: (1) the purpose of the amendment, (2) the magnitude of the change in the guideline range made by the amendment, and (3) the difficulty of applying the amendment retroactively to determine an amended guideline range under § 1B1.10(b). 

Public comment is due February 10, 2026.

Unfortunately, the request does not solicit public comment on the Commission’s underlying approach to retroactivity, and thus, the current proceeding is unlikely to resolve the retroactivity backlog any time soon.

Sentencing Guidelines for U.S. Courts, 90 FR 59660, 59661 (December 19, 2025)

Epstein Becker Green, Recalibrating Economic Crime Sentencing: The U.S. Sentencing Commission’s Proposed Reforms to Section 2B1.1 and What They Mean for the Defense Bar (January 29, 2026)

~ Thomas L. Root