Amendment 836 and the End of Departures

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

What is Amendment 836?

Amendment 836, effective November 1, 2025, deleted the departure framework from the Guidelines Manual — Chapter Five Part H (§§ 5H1.1–5H1.12), §§ 5K2.0–5K2.24, § 4A1.3, and § 6A1.4 — and restructured § 1B1.1 into two steps instead of three. The Commission framed it as outcome neutral: the same facts now support a variance under 18 U.S.C. § 3553(a) rather than a departure.

Key takeaways on Amendment 836

• The deletion is real and total. Every section in Chapter Five, Part H now reads [Deleted], as do §§ 5K2.0 through 5K2.24, § 4A1.3, and § 6A1.4.
• Federal sentencing is now a two-step process, not three. § 1B1.1(a) is captioned “Step One: Calculation of Guideline Range”; new § 1B1.1(b) is “Step Two: Consideration of Factors Set Forth in 18 U.S.C. § 3553(a).” The middle step — departures — is gone.
• The Commission’s stated intent is favorable to defendants, and it is quotable. The amendment was “envisioned and framed … to be outcome neutral,” and “[t]he removal of departures from the Guidelines Manual does not limit the information courts may consider in imposing a sentence.”
• § 5K1.1 survived. Substantial assistance and § 5K1.2 remain, and Part K is renamed “Assistance to Authorities.”
• The old provisions are still findable. Appendix B of the 2025 Manual compiles the deleted provisions as they last appeared in the 2024 edition.
• What changes is the vocabulary, not the facts. “We move for a downward departure under § 5H1.4” becomes a § 3553(a) variance argument resting on the same medical records.

What Amendment 836 deleted

The full list, verified against the amendment’s own striking instructions and the 2025 Manual’s table of contents.

Chapter Five, Part H — Specific Offender Characteristics: deleted in its entirety

The amendment directs that “Chapter Five is amended by striking in its entirety Part H, as amended by Amendment 835.” Every section within it:

Section	Subject	Status
§ 5H1.1	Age	[Deleted]
§ 5H1.2	Education and Vocational Skills	[Deleted]
§ 5H1.3	Mental and Emotional Conditions	[Deleted]
§ 5H1.4	Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction	[Deleted]
§ 5H1.5	Employment Record	[Deleted]
§ 5H1.6	Family Ties and Responsibilities	[Deleted]
§ 5H1.7	Role in the Offense	[Deleted]
§ 5H1.8	Criminal History	[Deleted]
§ 5H1.9	Dependence upon Criminal Activity for a Livelihood	[Deleted]
§ 5H1.10	Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status	[Deleted]
§ 5H1.11	Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works	[Deleted]
§ 5H1.12	Lack of Guidance as a Youth and Similar Circumstances	[Deleted]

Table: Chapter Five, Part H of the Guidelines Manual* as it stands after Amendment 836, effective November 1, 2025. Section titles quoted from the amendment’s striking instructions.*

Chapter Five, Part K — §§ 5K2.0 through 5K2.24: deleted

Part K is renamed from “Departures” to “Assistance to Authorities” and now contains only § 5K1.1 and § 5K1.2. The 2025 Manual’s table of contents shows §§ 5K2.0 through 5K2.24 each reading [Deleted]. The grounds that were struck:

Section	Ground	Section	Ground
§ 5K2.0	Grounds for Departure	§ 5K2.12	Coercion and Duress
§ 5K2.1	Death	§ 5K2.13	Diminished Capacity
§ 5K2.2	Physical Injury	§ 5K2.14	Public Welfare
§ 5K2.3	Extreme Psychological Injury	§ 5K2.16	Voluntary Disclosure of Offense
§ 5K2.4	Abduction or Unlawful Restraint	§ 5K2.17	Semiautomatic Firearms Capable of Accepting Large Capacity Magazine
§ 5K2.5	Property Damage or Loss	§ 5K2.18	Violent Street Gangs
§ 5K2.6	Weapons and Dangerous Instrumentalities	§ 5K2.20	Aberrant Behavior
§ 5K2.7	Disruption of Governmental Function	§ 5K2.21	Dismissed and Uncharged Conduct
§ 5K2.8	Extreme Conduct	§ 5K2.22	Specific Offender Characteristics as Grounds for Downward Departure in Child Crimes and Sexual Offenses
§ 5K2.9	Criminal Purpose	§ 5K2.23	Discharged Terms of Imprisonment
§ 5K2.10	Victim’s Conduct	§ 5K2.24	Commission of Offense While Wearing or Displaying Unauthorized or Counterfeit Insignia or Uniform
§ 5K2.11	Lesser Harms

Table: the departure grounds deleted from Chapter Five, Part K. Titles quoted from Amendment 836’s striking instructions. Note that these deletions ran in both directions — §§ 5K2.1 through 5K2.9 and 5K2.14, 5K2.17, 5K2.18, 5K2.21 and 5K2.24 were predominantly upward departure provisions.

Elsewhere in the Manual

Provision	What it did	Status
§ 4A1.3	Departures based on inadequacy of criminal history category — the route to Category reduction or increase	[Deleted]; cross-references struck from Chapter Four Part A’s introductory commentary, § 4A1.1’s background, and § 4A1.2(h) and (i)
§ 6A1.4	“Notice of Possible Departure” — required the court to give notice before departing on an unidentified ground	Struck “in its entirety”
§ 5K3.1	Early Disposition Programs (fast-track)	Re-promulgated as § 3F1.1 in a new Chapter Three, Part F
§ 1B1.1 App. Note 1(F)	The Manual’s definitions of “departure,” “depart,” “downward departure,” “upward departure”	Struck; subparagraphs (G)–(M) redesignated (F)–(L)
§ 1B1.7	Stated that commentary “may suggest circumstances which … may warrant departure”	That sentence struck
§ 1B1.8(b)(5)	The cooperation shield’s § 5K1.1 exception	Departure language replaced with “to impose a sentence that is below the otherwise applicable guideline range”
Chapter Five heading	“Determining the Sentence”	Now “Determining the Sentencing Range and Options Under the Guidelines”

Table: Amendment 836’s changes outside Chapter Five, Parts H and K.

The re-promulgation of § 5K3.1 as § 3F1.1 is worth noting for anyone in a fast-track district. The new policy statement reads: “Upon motion of the Government, the court may decrease the defendant’s offense level pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides. The level of the decrease shall be consistent with the authorized program within the filing district and the government motion filed, but shall be not more than 4 levels.” Substantively the same relief — but it is now an offense-level adjustment applied in Step One, not a departure. Section 1B1.1(a)(5) was amended to direct application of “the reduction pursuant to an early disposition program … from Parts E and F of Chapter Three.”

The restructuring of § 1B1.1: three steps become two

The deletion list is the visible change. The structural change is in § 1B1.1, and it matters more.

Before Amendment 836, federal sentencing proceeded in three steps: calculate the guideline range; consider departures under Chapter Five, Parts H and K; then consider the § 3553(a) factors. Old § 1B1.1(b) said so expressly — “The court shall then consider Parts H and K of Chapter Five, Specific Offender Characteristics and Departures” — and old § 1B1.1(c) directed consideration of § 3553(a).

Amendment 836 struck both subsections and inserted a single new subsection (b). The current structure:

Step	Caption	What happens
Step One	“Calculation of Guideline Range and Determination of Sentencing Requirements and Options under the Guidelines Manual” — § 1B1.1(a)	Chapter Two offense level, Chapter Three adjustments (now including Part F early disposition), Chapter Four criminal history, the range, and — new paragraph (9) — “Apply, as appropriate, Part K of Chapter Five”
Step Two	“Consideration of Factors Set Forth in 18 U.S.C. § 3553(a)” — § 1B1.1(b)	The court considers the other § 3553(a) factors “to determine a sentence that is sufficient, but not greater than necessary”

Table: the two-step sentencing structure under § 1B1.1 as amended by Amendment 836.

New § 1B1.1(b) then lists what the court considers at Step Two, tracking the statute: “(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to meet the purposes of sentencing listed in 18 U.S.C. § 3553(a)(2); (3) the kinds of sentences available; (4) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (5) the need to provide restitution to any victims of the offense.”

A district court described the effect concisely in United States v. Cooper, No. 8:14-cr-00083 (D. Md. Mar. 11, 2026): “Previously, sentencing judges employed a three-step process in which they calculated the Guidelines range, determined if any facts required a departure, and then considered the § 3553(a) factors before imposing sentence. … Now, the second step — determining applicable departures — is removed for most offenses. Instead, judges are now instructed to consider facts that would have previously motivated a departure as part of their consideration of the § 3553(a) factors.”

The Commission also rewrote § 1B1.1’s background commentary to cite Gall v. United States, 552 U.S. 38, 49–51 (2007), for the proposition that a court must correctly calculate the range as the “starting point and initial benchmark” and then determine an appropriate sentence on the § 3553(a) factors — which is exactly how post-Booker sentencing has worked in practice for years. In that sense the amendment brings the Manual into line with what courts were already doing.

The Commission’s own words, and why they are the most useful sentence on this page

The introductory commentary to Chapter One, Part A of the 2025 Manual explains the reasoning. It is worth quoting at length, because it is favorable, it is official, and it belongs in the first paragraph of any sentencing memorandum written after November 1, 2025:

“In the years after Booker, courts used departures with much less frequency in favor of variances. In 2025, the Commission amended the Guidelines Manual to remove departures and policy statements relating to specific personal characteristics. (See USSG App. C, amendment 836). … The Commission envisioned and framed this 2025 amendment to be outcome neutral, intending that judges who would have relied upon facts previously identified as a basis for a departure would continue to have the authority to rely upon such facts to impose a sentence outside of the applicable guideline range as a variance under 18 U.S.C. § 3553(a). The removal of departures from the Guidelines Manual does not limit the information courts may consider in imposing a sentence nor does it reflect a view from the Commission that such facts should no longer inform a court for purposes of determining the appropriate sentence.”

Three things follow from that passage, and all three are usable.

One: the Commission disclaimed any substantive narrowing. The amendment “does not limit the information courts may consider.” A prosecutor arguing that the deletion of § 5H1.6 means family responsibilities are now off the table is arguing against the Commission’s own stated intent.

Two: the Commission expressly endorsed the variance route. Judges “would continue to have the authority to rely upon such facts.” That is not a defense lawyer’s inference; it is the Commission’s stated design.

Three: the deletions ran in both directions. Most of the § 5K2 series were upward departure provisions. Their deletion removes tools the government used as well.

Federal courts have already begun quoting the passage. It appears in United States v. Keys, No. 2:24-cr-00137 (E.D. La. Nov. 5, 2025) — four days after the effective date — and in United States v. Metz, No. 2:92-cr-00469 (E.D. La. Dec. 18, 2025).

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The practical risk in this transition is not that a good argument becomes unavailable. It is that a memorandum written from a 2024 template gets filed with a heading that says “Motion for Downward Departure Pursuant to U.S.S.G. § 5H1.4” and a citation to a section that now reads [Deleted]. That is an unforced error, and it invites a response brief that spends its first page on the defect rather than the facts. The fix is mechanical: change the frame to § 3553(a), keep the facts, and quote the Commission’s own “outcome neutral” language so the court knows the change was intended to be one of form.

The translation table: from deleted departure ground to § 3553(a) argument

This is the working part of the page. The left column is what you used to cite. The right column is what carries the same facts now. Nothing in the middle column changed — the medical records, the service record, the caregiving obligations are all the same documents they always were.

Deleted provision	The fact it carried	The § 3553(a) argument that carries it now
§ 5H1.1 Age	Advanced age; youth at the time of the offense	“[T]he history and characteristics of the defendant,” § 3553(a)(1); and, for the elderly or infirm, the reduced need for deterrence and public protection under § 3553(a)(2)(B)–(C)
§ 5H1.3 Mental and Emotional Conditions	Diagnosed mental illness, trauma history, cognitive impairment	§ 3553(a)(1) history and characteristics; § 3553(a)(2)(D) — “the need … to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”
§ 5H1.4 Physical Condition, Including Drug or Alcohol Dependence	Serious illness, disability, addiction	§ 3553(a)(1); § 3553(a)(2)(D) medical care and treatment; with documentation, the practical burden a sentence imposes
§ 5H1.5 Employment Record / § 5H1.2 Education	Steady work history, skills, education	§ 3553(a)(1) history and characteristics; relevant to recidivism risk under § 3553(a)(2)(C)
§ 5H1.6 Family Ties and Responsibilities	Sole caregiver for children or a disabled relative; family support	§ 3553(a)(1); this is also where character letters from family, employers and clergy do their work
§ 5H1.11 Military, Civic, Charitable, or Public Service	Military service, community contribution, prior good works	§ 3553(a)(1) history and characteristics — and one of the strongest variance arguments in practice when documented
§ 5K2.12 Coercion and Duress	Pressure or threats short of a defense	§ 3553(a)(1) nature and circumstances of the offense; culpability relative to codefendants under § 3553(a)(6)
§ 5K2.13 Diminished Capacity	Significantly reduced mental capacity contributing to the offense	§ 3553(a)(1); § 3553(a)(2)(A) just punishment, and § 3553(a)(2)(D) treatment
§ 5K2.20 Aberrant Behavior	A single, out-of-character episode in an otherwise law-abiding life	§ 3553(a)(1); § 3553(a)(2)(B)–(C) — deterrence and public protection need less to accomplish
§ 5K2.11 Lesser Harms	Conduct that avoided a greater harm	§ 3553(a)(1) nature and circumstances; § 3553(a)(2)(A) seriousness of the offense
§ 5K2.10 Victim’s Conduct	Victim conduct contributing to the offense	§ 3553(a)(1) nature and circumstances of the offense
§ 5K2.23 Discharged Terms of Imprisonment	A completed related sentence not otherwise credited	§ 3553(a)(1); the interaction with § 5G1.3, which was not deleted
§ 4A1.3 Inadequacy of Criminal History Category	An over-represented criminal history	§ 3553(a)(1) history and characteristics; § 3553(a)(6) unwarranted disparity — argued as a variance from the calculated range rather than as a Category adjustment

Table: how each major deleted departure ground maps onto a current § 3553(a) variance argument. The statutory factors are at 18 U.S.C. § 3553(a); the deleted provisions are compiled in Appendix B of the 2025 Manual.

What survived

Not everything with a Chapter Five, Part K citation disappeared, and the survivals matter.

§ 5K1.1 and § 5K1.2 remain. Substantial assistance to authorities, and refusal to assist, are still in the Manual, and Part K is now titled “Assistance to Authorities” to reflect that. Section 1B1.1(a)(9) — new — directs the court to “[a]pply, as appropriate, Part K of Chapter Five” at Step One, which means substantial assistance is now applied inside the guideline determination rather than as a separate departure step. The mechanics of a government motion, what assistance is worth, and how courts evaluate it belong to the 5K1.1 substantial assistance page; this page notes only that the provision survived and moved.

Early disposition programs survived, re-promulgated as § 3F1.1.

Nothing about mandatory minimums changed. No guideline amendment can lower a statutory minimum. Where a mandatory minimum applies, the only routes below it at sentencing remain § 3553(e) and, for qualifying drug offenses only, the safety valve — which does not reach the fifteen-year floor under the Armed Career Criminal Act. Amendment 836 has nothing to say about any of that.

The court’s authority to vary is statutory, not guideline-based. It comes from 18 U.S.C. § 3553(a) and from Booker, and the Commission cannot remove it by amending its own Manual. That is the deepest reason the amendment is fairly described as one of form.

And the deleted text remains findable. Appendix B of the 2025 Manual compiles the departure provisions as they were last provided in the 2024 edition. The old § 5K2.13 language on diminished capacity is still there to be read, quoted, and used as persuasive articulation of why a fact matters — it is simply no longer a guideline instruction.

Which Manual applies, and the ex post facto question

Two timing questions arise, and they have different answers.

Which Manual governs my sentencing? U.S.S.G. § 1B1.11(a) directs the court to use the Manual in effect on the date of sentencing, and § 1B1.11(b)(1) provides that if doing so would violate the Ex Post Facto Clause, the court uses the Manual in effect on the date of the offense. Section 1B1.11(b)(2) adds the “one-book rule”: the Manual in effect on a particular date is applied in its entirety — you do not mix editions.

Does applying the 2025 Manual to older conduct raise an ex post facto problem? One district court has said no. In United States v. McDonald, No. 4:21-cr-03126 (D. Neb. June 24, 2026), the defendant had moved in 2023 for a departure based on age, allegedly overstated criminal history, and physical condition. The court denied the motion, holding: “A motion for departure, based on the defendant’s personal characteristics, was appropriate when it was filed in 2023. But in 2025, the Sentencing Commission amended the Guidelines Manual to remove departures and policy statements relating to specific personal characteristics. … There is no ex post facto problem with the removal of departures.” The reason was the Commission’s own framing — the amendment was “envisioned and framed” as “outcome neutral.” And the court was explicit that the facts survived the vocabulary: the characteristics relied on “will be considered by the Court along with any other relevant circumstances in determining whether to vary from the advisory Guidelines.”

Is Amendment 836 retroactive for someone already sentenced? Apparently not. In United States v. Cooper, No. 8:14-cr-00083 (D. Md. Mar. 11, 2026), addressing a sentence-reduction motion, the court observed that “it does not seem as if this Amendment was made retroactively applicable” — and added that even if it were, it would not have invalidated the earlier guideline calculation.

Stated honestly: no court of appeals has ruled on either question. Both propositions rest on district-court decisions. A defendant sentenced before November 1, 2025 whose sentence rested on a departure that no longer exists should not assume relief is available; the routes to reopening a final sentence are the ordinary ones, covered on the federal sentence reduction page and, where a change in law is part of the picture, the compassionate release analysis. Neither is a mechanism for applying Amendment 836 retroactively, and this page does not suggest otherwise.

What a sentencing memorandum should now say

Concretely, for anyone drafting after November 1, 2025:

Do not write: “Defendant respectfully moves for a downward departure pursuant to U.S.S.G. § 5H1.4 based on his serious medical condition.”

Write instead: “Defendant respectfully requests a sentence below the advisory guideline range under 18 U.S.C. § 3553(a). His documented cardiac condition bears directly on his history and characteristics under § 3553(a)(1) and on the need to provide medical care in the most effective manner under § 3553(a)(2)(D).” Then attach the records.

Four drafting notes that follow from the amendment’s structure:

1. Quote the Commission’s “outcome neutral” language once, early. It preempts any argument that the deletion signals a substantive change, and it comes from the Manual itself.
2. Cite Appendix B where the old provision articulated the point well. The deleted text is not law, but it is the Commission’s own explanation of why a fact matters, and it remains persuasive.
3. Check the plea agreement. Agreements negotiated before November 2025 frequently contain departure language, including stipulations not to seek departures. Whether such a clause reaches a variance is a question of the agreement’s wording, and it should be resolved before sentencing rather than at the podium.
4. Check the presentence report. Probation offices transitioning to the new Manual may still frame recommendations in departure terms. That belongs in the written PSR objections, and it is easier to fix on paper than at the sentencing hearing.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: For families, the useful thing to understand is that nothing about what you can offer has changed. The letters, the medical records, the employment history, the caregiving documentation — every one of those still goes to the judge and still matters. What changed is the label the lawyer puts on the request. When someone tells you that “departures were abolished” and it sounds like a door closing, the accurate response is that the door was renamed. The legal framing belongs to the attorneys; the material you gather is the same material it always was.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm founded in 2019, running a national federal practice on an intentionally small caseload. Elizabeth Franklin-Best has more than 20 years of federal and appellate criminal defense experience and has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record. She is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit. She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations, and is the author of Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023).

The firm has offices in Columbia and Mount Pleasant, South Carolina, and represents clients nationwide. The federal sentence mitigation work described across these pages — the guideline objections, the mitigation record, the sentencing presentation — is the same work it was before November 2025. The amendment changed the frame around it.

What to do next under Amendment 836

If you have a sentencing date after November 1, 2025 and a memorandum drafted before it, the memorandum needs to be re-framed. If a plea agreement contains departure language, that language should be read against the current Manual before sentencing rather than after. If you are reading a brief or an article that describes departures as available, check its date.

Call (843) 620-1100, or schedule a consultation directly.

This page is general legal information, not legal advice, and reading it does not create an attorney-client relationship. Amendment 836 took effect November 1, 2025 and its application to individual cases is still developing in the district courts. No outcome is promised or implied.

Frequently Asked Questions About Amendment 836

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026