Sentencing commissioners hear split views on replacing categorical career-offender test with conduct-based approach

At a public hearing convened by the United States Sentencing Commission, commissioners heard extensive testimony about a proposed rewrite of the career-offender guideline that would move the rule away from the traditional categorical approach and toward a conduct-based framework focusing on whether a defendant engaged in violent conduct.

Advocates of the change, including Judge Edmund S. Chang, chair of the Judicial Conference Criminal Law Committee, told the commission the categorical approach has produced extensive litigation and inconsistent outcomes across states. "We welcome this change to a focus on real world facts," Judge Chang said, arguing a prima facie gateway tied to Shepard documents would limit litigation to the cases most likely to involve violent conduct. He and other judges said limiting prior drug-trafficking predicates to federal offenses would reduce anomalous career-offender applications for defendants with only state drug convictions.

The Department of Justice took a different tack. Sarita Comatoretti, Deputy Chief of Appeals for the U.S. Attorney's Office, praised efforts to reach repeat violent offenders but warned the draft is too narrow in limiting proof to Shepard documents. "Shepard documents do not prove conduct," she said, and DOJ urged the commission to permit reliable record evidence beyond Shepard materials and to retain state drug priors or tie any exclusion to an objective proxy (the Department suggested a 60-day time-served cutoff in written comments).

Defense organizations and practitioners were split. Shelly Feit, representing the Federal and Community Defenders' National Sentencing Resource Council, and Susan Lynn of the Practitioners Advisory Group supported removing state-only drug priors from the controlled-substance predicate as an administrable fix, saying federal and state drug prosecutions often involve very different conduct and punishment patterns on the ground. By contrast, probation and practitioners groups warned that replacing the categorical approach with a conduct-based test would create thorny fact-finding at sentencing, increase litigation, and introduce new disparities tied to availability of records. "The conduct-based approach produces results that are too broad and feel like outcomes that were characteristic of the residual clause," Joshua Luria for the Probation Officers Advisory Group said.

Other witnesses urged technical fixes and data-driven limits. Judge Chang and several commenter groups urged the commission to study whether any minimum predicate sentence should mirror existing §4A1.1 categories (for example, tying qualification to higher prior terms) and cautioned against a new rule based on "time served" because release practices vary by state and could spawn litigation over parole, custody credits and concurrent sentences.

Victims advisers and prosecutors also disagreed about the consequences of excluding state drug priors. The Victims Advisory Group argued against excluding state drug offenses, saying removal could create disparate treatment of communities harmed by serious state-level drug trafficking; prosecutors urged the commission, if it excludes state priors, to use an objective proxy such as prior time imposed.

Why it matters: the career-offender rule drives large guideline increases for a subset of repeat offenders; changing its predicate definitions, proof rules, or qualifying-sentence thresholds will alter who triggers the enhancement and thus materially affect many sentences.

What’s next: the commission will consider the written comments and testimony as it prepares amendment text; witnesses asked for more empirical study, especially on minimum-predicate sentences and on differential impacts in Indian country and rural districts.