Sentencing Matters Substack Summaries: The U.S. Sentencing Commission’s Proposed 2026 Guideline Amendments – Tranche #1

Comments can be submitted to the Commission through February 10, 2026

We are thrilled to welcome Sam Merchant as a guest author to the Sentencing Matters Substack. Sam is an associate professor of law at the University of Minnesota School of Law. His research centers on sentencing theory and the intersection of criminal law and constitutional law. Sam teaches constitutional law, criminal procedure, criminal law, sentencing, and habeas corpus; he is a member of the U.S. Sentencing Commission’s Research and Data Practices Advisory Group; and he is a research fellow at the Georgetown Law Center for the Constitution. I first got to know Sam a few years ago when he served as a Supreme Court fellow, working at both the Court and the U.S. Sentencing Commission. (To learn more about Sam and his work, here’s an interview we did with him last year.)

Sam is introducing this week a new feature to the Substack, Sentencing Matters Summaries. With this feature, which we will post now and then on Thursday mornings, we hope to provide practitioners, scholars, and the general public an easily digestible summary of proposed guideline amendments, final promulgated amendments, interesting case law decisions, and perhaps other sentencing related documents that may just be too long for most of us to read. Authors may sprinkle in a bit of commentary too. Please join us in welcoming Sam and thanking him for his work.

-Jonathan

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On December 12, 2025, the U.S. Sentencing Commission released the first of two expected packages of proposed amendments to the Federal Sentencing Guidelines. These proposals are now out for public comment through February 10, 2026. The proposals try to keep the Guidelines up-to-date with evolving drug trends and inflation, give defendants credit for early rehabilitative efforts, and continue the current Commission’s priority of simplifying the Guidelines.

The package from the Commission spans 194 pages, and includes redlines of all affected guidelines. Below is a concise “TL;DR” summary for interested but busy stakeholders, followed by a deeper dive into the proposals —

1) Post-Offense Rehabilitation: This is a new proposed Chapter Three adjustment that would reward positive efforts toward behavioral changes made after the offense was committed but before sentencing.

Effect: Incentivize post-offense treatment, restitution, training, and employment, while increasing judicial discretion to reward reform.

2) Methamphetamine and Fentanyl: This proposal would eliminate the purity distinction between “actual” and “mixture” methamphetamine in the Drug Quantity Table of §2D1.1 (most meth today is extremely pure, making the punitive distinction dubious). It also would provide new enhancements for fentanyl sales to youth, use of the dark web, and certain emerging mixtures.

Effects: Likely more uniform sentencing, ending the “purity” premium that has become outdated as drug purity has standardized, and increased guideline ranges for synthetic fentanyl offenders.

3) Economic Crimes: The proposed “Inflation Adjustment” would increase monetary thresholds for loss across nearly all economic crime (last adjusted in 2015). The proposal would also provide a new enhancement for victims’ non-economic harm (physical injury, trauma, reputation); narrow the “sophisticated means” enhancement definition; and provide offense level reductions if the defendant was vulnerable or voluntarily ceased the economic crime before getting caught.

Effects: Monetary thresholds would be higher to account for inflation (sensibly benefiting defendants); potentially longer sentences as non-economic harm is considered; narrower definition of sophisticated-means enhancement but potentially broader application if moved to Chapter Three; new mitigation reductions for less-culpable offenders.

4) Simplification: This proposal would eliminate 26 unused specific-offense characteristics and would streamline the complicated “multiple counts” grouping rules.

Effect: Reduce calculation errors and sentencing disparities while making the Guidelines easier to apply.

Summary of USSC 2026 Proposed Amendments

Rehabilitation

The Commission’s most ambitious proposal in the guideline amendment package is the creation of §3E1.2 (Post-Offense Rehabilitation). Many sentencing participants have long bemoaned that, notwithstanding Congress’s instruction in 18 U.S.C. § 3553(a) for sentencing judges to consider retribution, deterrence, public safety, and rehabilitation, the Sentencing Guidelines have virtually nothing to say about rehabilitation. The Guidelines currently give a modest reduction in sentence length for an offender’s timely acceptance of responsibility in §3E1.1. But there is an overwhelming number of “plusses” in the Guidelines that can ratchet up a sentence, and very few “minuses.” The Commission’s rehabilitation amendment, while not a seismic change to the Guidelines, is a substantial effort to respond to these and other critiques.

Without allowing judges to take a “second look” at a sentence after it has been imposed (there is no meaningful “second look” mechanism in the federal system), there is not much that a sentencing judge has to work with in terms of recognizing an offender’s post-sentence rehabilitation. In the current system, rehabilitation has largely been in the hands of the Federal Bureau of Prisons. But as the Commission implicitly acknowledged in this proposed amendment, judges do have some control and discretion to consider pre-sentence conduct.

In the federal system, there is often six months to a year or more between a conviction (typically via plea agreement) and a sentencing hearing. There is typically much more time than that between the commission of the offense and sentencing, and a lot can happen in that year or two. As the proposed amendment states, “[t]he Commission has received comment suggesting that the guidelines do not sufficiently incentivize or reward positive post-offense conduct and rehabilitative efforts taken by defendants prior to sentencing.”

If approved, a new §3E1.2 would allow judges to apply a formal reduction, in an amount to be debated in the coming months, if a defendant “demonstrates prior to sentencing positive post-offense behavior or rehabilitative efforts” or shows a “sustained commitment to positive behavioral change.” This has been routine advice for defense attorneys probably for as long as judges have had discretion at sentencing, but rather than simply hoping that this kind of conduct favorably sways a judge, this amendment provides some level of structure and guidance. It also gives the Commission a new sentencing variable to study; if certain pre-sentence practices prove more or less effective at meeting the ultimate purposes of sentencing, the Commission can adjust the dials accordingly.

Option 1 provides a non-exhaustive list of factors the court can consider. The list includes conduct like participation in rehabilitation or mental-health programs, getting vocational training and maintaining a job, supporting family, volunteering, steering others away from engaging in unlawful conduct, and promoting the rehabilitation of others.

Option 2 identifies rehabilitative conduct more generally and advises judges to consider the reduction when the defendant takes actions “that go beyond the typical actions undertaken by defendants prior to sentencing.” One issue with Option 2 is that the Commission presumably wants to incentivize the kind of pre-sentence rehabilitation referenced in the amendment. But if most defendants start to engage in this behavior, it might quickly become much harder to show that you “go beyond the typical actions undertaken by defendants prior to sentencing,” potentially thwarting the entire aim of these changes.

With some quibbling about the scope and language, and genuine concerns about the current availability of these programs in some areas, it seems obvious that we want defendants to commence rehabilitating as quickly as possible. Judges would no doubt welcome news that a defendant has voluntarily obtained specialized help, learned a new trade, obtained a job, and is more likely to find the straight and narrow. The Guidelines imagine thousands of iterations of bad behavior and formalize accompanying punishments; they should envision and incentivize at least some good behavior.

One potential objection might be, bluntly, that defendants will fake it. On paper, some might show rehabilitative conduct and enroll in various programs, but only to receive the guideline reduction, not to actually engage in good-faith rehabilitation. Indeed, if a post-offense rehabilitation amendment passes, defense counsel would incorporate it into their standard advice to all federal clients. (This is presumably the Commission’s desired response.)

Skeptics should show (ideally empirically) that defendants who feign participation in rehabilitative programs fare the same as, or worse than, defendants who do not participate in early rehabilitation. They would need to show that some completed programming, even on an initially unwilling participant, does not make enough of a difference to warrant a reduction. (This opposition also assumes that the programs, which have a vested interest in actual rehabilitation, would nonetheless approve credit or vouch for bad-faith participants, and that judges would be similarly duped and apply the reduction. It also assumes that the risk of all of this outweighs the potential benefits to good-faith participants.) The proposed amendment seems to incorporate the well-studied “foot-in-the-door” approach (acquiescing to a small request makes one more likely to comply with larger requests), and foresees downstream benefits of pre-sentence rehabilitation efforts. The Commission can also continue to learn from the successes and failures of the myriad of alternatives to incarceration programs that exist outside of the federal system.

Methamphetamine and Fentanyl Sentencing Changes

Methamphetamine. For decades, the Guidelines have punished “actual” methamphetamine (the pure substance) more severely than mixtures. This was originally a proxy for culpability, assuming only high-level kingpins handled pure drugs and lower-level offenders increasingly “cut” the substance to dilute it and make more money. But times have changed. The Commission has studied the issue extensively and Commission data show that nearly all meth on the street is uniformly pure (averaging over 90%), making the distinction a relic that often hits low-level couriers just as hard as suppliers.

The Commission is proposing to simplify §2D1.1 with two options. Option 1 would simplify §2D1.1 by deleting all references to “actual” methamphetamine and applying a single, uniform quantity threshold to all methamphetamine offenses. Option 2 would maintain different base offense levels for methamphetamine but would set a new baseline that could be heightened or reduced depending on specific factors, such as the defendant’s role or the methods used in the offense.

Fentanyl. The fentanyl amendment addresses two primary areas: statutory updates and new enhancements. Like most emerging drugs, there is a cat-and-mouse game between manufacturers and regulators; as regulators criminalize one form of a drug, manufacturers tweak the drug to avoid prohibitions. This amendment would first incorporate Congress’s HALT Fentanyl Act into the Guidelines by permanently scheduling “fentanyl-related substances” and setting their quantity thresholds at the same level as fentanyl analogues. Additionally, the amendment proposes four new specific-offense characteristics (SOCs) that would increase prison time for traffickers who —

• Distribute fentanyl to individuals under age 18 or 21;

• Use the dark web or darknets to facilitate or conceal their crimes;

• Distribute fentanyl mixed with xylazine or medetomidine (veterinary tranquilizers); or

• Use or possess tableting or encapsulating machines (often making the drug look like other pills).

Economic Crimes

As we all know from buying groceries, $100 doesn’t buy what it used to. But we have not seen a general inflationary adjustment to the Guidelines’ loss tables since 2015. The Commission is proposing a commonsense amendment to adjust for inflation various monetary thresholds in the Guidelines. The Commission will use the same methodology that it did in 2015. The result would be, for example —

Beyond just inflation adjustments, the Commission is looking at adding “Culpability Factors” to the economic crimes guideline. This includes a new enhancement for “substantial non-economic harm” (psychological trauma, credit ruin, invasion of privacy, etc.).

Proposed amendments would also narrow the application of the “sophisticated means” enhancement (limited to “advanced or emerging technologies in ways not routinely employed by everyday users”) because what was “sophisticated” to the Guidelines decades ago might be commonplace today, and the Guidelines have not kept up. Five guidelines contain SOCs that expressly address “sophisticated” conduct (tax, theft, and money-laundering guidelines). Notably, Option 1 for this amendment, while giving a narrower definition, converts the enhancement into a Chapter Three adjustment, meaning it would be available for use with all Chapter Two guidelines. So, while the definition would be narrowed, the potential use cases would expand dramatically. Option 2 merely amends the existing guidelines that already have an SOC for sophisticated means and employs the narrower definition.

Finally, the proposed amendments would add two new mitigating factors. One would provide a 2-level decrease for defendants who were motivated by employer coercion, an intimate or familial relationship, vulnerability, or threats. The second would provide a tiered decrease based on whether the defendant, before knowing about an investigation, ceased criminal activity, tried to return the money, or reported the offense.

Simplification

Following last year’s simplification trend (deleting virtually all departures), the Commission proposed to delete 26 SOCs across the Guidelines that were not applied in the past five years. Older versions of the Sentencing Guidelines are available on the Commission’s website. Presumably, a prosecutor believing that a deleted SOC should apply going forward could refer to an older version of the Guidelines and advocate to the judge that an upward variance is warranted.

The Commission is also proposing to simplify the complicated “Multiple Counts” (grouping) rules in Chapter Three, Part D, to reduce calculation errors and sentencing disparities caused by the current system’s complexity. The proposal replaces the current multi-step process with a more streamlined approach based on the type of guideline used. The Commission expects this change to be outcome-neutral.

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If you have thoughts on the proposed 2026 Proposed Amendments, you have until February 10, 2026, to let the Commission know. You need not confine your comments to these options; you can offer revised language, new language, or new options.