In U.S. v. Jerchower, No. 09-13795 (Jan. 25, 2011), the Court held that Amendment 732 was a “clarifying amendment” and therefore retroactively applicable.
Amendment 732 provides that the “undue influence” enhancement for defendants convicted of prohibited sexual conduct does not apply when the only “minor” was an undercover law enforcement officer.
The Court noted that substantive guideline amendments do not apply retroactively (unless the Sentencing Commission expressly so provides pursuant to USSG § 1B1.10(c)), while clarifying amendment do apply retroactively, and are available to defendants whose cases are on appeal.
In concluding that Amendment 732 was clarifying and not substantive, the Court noted that Amendment 732 resolved a Circuit conflict on whether the “undue influence” enhancement applied in cases where the minor who was the “victim” was in reality a law enforcement officer (Amendment 732 overruled Eleventh Circuit precedent which had held that the enhancement applied in such cases). In addition, Amendment 732 amended a Guideline commentary, not a Guideline. Further, the Commission’s explanation of the reason for the amendment made clear its clarifying nature. Amendment 732 clarified a meaning inherent in the original Guideline.
The Court held that Amendment 732 applied to Jerchower retroactively, and remanded the case for resentencing.