Can I Get a Sentence Reduction Under the First Step Act?
What is the 2018 First Step Act?
It’s the most recent effort to correct the long-standing 100-1 disparity between sentencing of defendants charged with powder cocaine and defendants charged with crack cocaine in the federal courts – a difference that was never based in reality and which has disproportionately affected non-white Americans for decades.
The Fair Sentencing Act reduced the sentencing disparity in 2010 but did not eliminate it completely. Although many inmates received relief from unfair sentences after the passage of the Fair Sentencing Act, others fell though the cracks because the Fair Sentencing Act was not made retroactive – anyone sentenced before its passage in 2010 was not eligible to have their sentence reduced.
What is the First Step Act, and how can you get a sentence reduction if you qualify under the First Step Act?
The First Step Act – A History of Disparity in Sentencing for Federal Drug Crimes
To understand the First Step Act, and whether you or your loved one qualifies for a sentence reduction under the First Step Act, it helps to understand the history of the crack cocaine/powder cocaine sentencing disparity in federal court and the efforts to provide relief to defendants who were affected by it.
In U.S. v. Wirsing, the Fourth Circuit Court of Appeals reversed a district court’s decision that a defendant was not entitled to relief under the First Step Act. The Court also provided an overview of the First Step Act and the legislative developments that led to it.
Narcotic or Nonnarcotic?
Beginning in 1970, sentencing for federal drug crimes was based on the drug’s schedule, with increased penalties based on whether the drug in question was narcotic or nonnarcotic without regard to drug weights:
In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act, which separated drugs into five “schedules” according to their potential for abuse. Pub. L. No. 91-513, § 202(a)-(b), 84 Stat. 1236, 1247-48 (1970). The statute assigned penalties in accordance with a drug’s schedule and whether it was a narcotic, without considering quantity (with one minor exception related to distribution of “a small amount of marihuana for no remuneration”). Id. § 401(b)(4), 84 Stat. at 1262; see id. § 401(b), 84 Stat. at 1261-62 (codified at 21 U.S.C. § 841).
The sentencing scheme created concerns over the sentencing disparities between drugs classified as narcotic or nonnarcotic, which eventually led to new legislation that tied the potential penalties to drug weight instead of the drug’s classification as narcotic or nonnarcotic.
Penalties Based on Drug Weight
In 1984, Congress passed the Controlled Substances Penalties Amendments Act, which introduced a sentencing scheme based on drug weight rather than the sometimes-arbitrary distinction of narcotic v. nonnarcotic:
That changed in 1984, when Congress introduced quantities to the statute. Controlled Substances Penalties Amendments Act of 1984, Pub. L. No. 98-473, § 502, 98 Stat. 1837, 2068-69 (codified at 21 U.S.C. § 841(b)). The 1984 act constituted an attempt to “eliminat[e] sentencing dispar[i]ties caused by classifying drugs as narcotic and nonnarcotic,” instead tying penalties to drug weight. Chapman v. United States, 500 U.S. 453, 461 (1991).
This seemed like a step in the right direction, until, two years later, Congress introduced additional legislation that created mandatory minimum sentences as well as the now infamous disproportionate penalties for crack cocaine as compared to powder cocaine.
The Anti-Drug Abuse Act of 1986 – 100 to 1 Ratio Between Crack and Powder Cocaine
In the midst of nationwide concern and fear over the scourge of crack cocaine that was flooding the nation’ streets, and the resulting violence, the Anti-Drug Abuse Act of 1986 created mandatory minimum sentences for drug offenses involving cocaine:
The Anti-Drug Abuse Act introduced mandatory minimums for offenses involving specified weights of particular drugs. Anti-Drug Abuse Act § 1002, 100 Stat. at 3207-2 to -4 (codified at 21 U.S.C. § 841(b)(1)). For example, a defendant convicted of an offense involving “5 kilograms or more of a mixture or substance containing a detectable amount of . . . cocaine” or “50 grams or more of a mixture or substance . . . which contains cocaine base” was subject to a ten-year mandatory minimum sentence. Id. § 1002, 100 Stat. at 3207-2. Similarly, the statute mandated a five-year minimum sentence where the conviction related to 500 grams or more of powder cocaine or 5 grams or more of cocaine base. Id. § 1002, 100 Stat. at 3207-3. Thus, the 1986 statute provided that “a drug trafficker dealing in crack cocaine [was] subject to the same sentence as one dealing in 100 times more powder cocaine.” Kimbrough, 552 U.S. at 91. The Sentencing Guidelines then incorporated this ratio “for the full range of possible drug quantities.” Id. at 97 (citation omitted); see Dorsey v. United States, 567 U.S. 260, 267-68 (2012).
Following the 1986 legislation, a person convicted of a drug offense involving crack cocaine received a sentence that was equal to another person who was convicted for 100x the same amount of powder cocaine – a disparity that many felt could only be explained by the fact that crack cocaine was largely seen as a “black person’s drug” while powder cocaine was seen as a “white person’s drug,” a criticism that has been confirmed over time:
“…the public had come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based differences.” Dorsey, 567 U.S. at 268; see Gov’t Br. at 12 (noting that this “sentencing scheme . . . had [a] racially disparate impact”); see also Kimbrough, 552 U.S. at 98 (citing the Sentencing Commission’s 2002 finding that “[a]pproximately 85 percent of defendants convicted of crack offenses in federal court are black”); Barack Obama, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811, 827 (2017) (noting that the disparity “resulted in excessive and unwarranted punishments that fell disproportionately on defendants of color”); Sonja B. Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker, 123 Yale L.J. 2, 36-37 (2013) (referring to “the sentencing framework’s notoriously harsh treatment of crack cocaine cases,” which “disproportionately involv[ed] black defendants”).
Critics also pointed out that the sentencing disparity resulted in drug traffickers receiving lower sentences than the lower-level dealers who bought from them – higher-level suppliers provide powder cocaine (which results in a 100x lower sentence) to low-level dealers, who then cook the powder into cocaine base, or crack cocaine, for resale:
Additionally, the 100-to-1 disparity “mean[t] that a major supplier of powder cocaine [could] receive a shorter sentence than a low-level dealer who b[ought] powder from the supplier but then convert[ed] it to crack.” Kimbrough, 552 U.S. at 95; see also id. at 98.
When the problem became apparent, the US Supreme Court attempted to address the disparity by making the guidelines advisory only – allowing district courts to deviate from the harsh guidelines for crack cocaine if they felt it resulted in a too-harsh sentence.
Booker and Kimbrough – Guidelines are Advisory Only
In US v. Booker and Kimbrough v. US, the US Supreme Court held that the sentencing guidelines are advisory only – a judge must consider the guidelines, but could vary from the guidelines range if “a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing.”
More importantly, the US Supreme Court found that, “[i]n making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses.”
Although this provided some relief, and some courts varied downwards from the guidelines based on the disparate effect of the crack-powder cocaine ration, it created more disparity because many judges chose not to grant downward departures:
After Booker and Kimbrough, some district courts opted “to vary from the crack cocaine Guidelines based on policy disagreement with them.” Spears v. United States, 555 U.S. 261, 264 (2009) (per curiam) (emphasis omitted) (affirming district courts’ authority to vary from the Guidelines in this way). But not all district courts did so, and all courts remained bound by the disparate mandatory minimums imposed by the statute.
The Fair Sentencing Act of 2010
In 2010, Congress responded to criticism of the unfairness of the sentencing disparity not by equalizing sentences, but by making it less unfair. The Fair Sentencing Act reduced the disparity to a 1:18 ratio instead of a 1:100 ratio:
Congress addressed the 100-to-1 sentencing inequity with the August 3, 2010 enactment of the Fair Sentencing Act. Pub. L. No. 111-220, 124 Stat. 2372 (2010). The Fair Sentencing Act described itself as intended “[t]o restore fairness to Federal cocaine sentencing.” Id., 124 Stat. at 2372. In a section labeled “Cocaine Sentencing Disparity Reduction,” the Fair Sentencing Act increased the quantities applicable to cocaine base to 280 grams for the ten-year mandatory minimum and to 28 grams for the five-year mandatory minimum. Id. § 2, 124 Stat. at 2372 (codified at 21 U.S.C. § 841(b)(1)). “The effect of the changes [in Section 2 of the Fair Sentencing Act] was to reduce the sentencing disparity between crack cocaine offenses and powder cocaine offenses by lowering the crack-to-powder ratio from 100–to–1 to 18–to–1.” United States v. Black, 737 F.3d 280, 282 (4th Cir. 2013).
Congress did not make the changes retroactive, however – it only applied to people who were sentenced after the Fair Sentencing Act was passed in 2010:
The Supreme Court later held that the new penalty provisions applied to all crack cocaine offenders sentenced on or after August 3, 2010, even if they committed their offense before that date. Dorsey, 567 U.S. at 264. Those sentenced prior to the Fair Sentencing Act’s enactment, however, could not benefit from the reduction in sentencing disparities unless they could successfully bring a motion under the narrow exception provided by 18 U.S.C. § 3582(c)(2). See Black, 737 F.3d at 282, 286-87.
Retroactive Guidelines Amendments
Some inmates were able to get relief when the Sentencing Commission changed “’the base offense levels assigned to different amounts of cocaine base,’ including Amendments 750 and 782” – although the Fair Sentencing Act was not retroactive, the guideline changes were made retroactive:
Thus, some defendants sentenced before August 3, 2010 could seek relief, not directly under the Fair Sentencing Act, but indirectly by means of a § 3582(c)(2) motion related to one of the retroactive Guidelines amendments. See Peters, 843 F.3d at 574-75.
There was a catch, however, because “a reduction under § 3582(c)(2) was not authorized if the Guidelines amendment “d[id] not have the effect of lowering the defendant’s applicable guideline range,” and those defendants had no way to access the benefits of the Fair Sentencing Act.
Although some of these defendants would not have benefited from the Fair Sentencing Act anyway, other defendants who would have received a sentence reduction were barred from relief:
Others, however, were automatically excluded through the technical application of the career-offender provision—those whose sentences were driven not by the quantity of drugs involved but rather by their status as a career offender. E.g., United States v. Dean, 699 F. App’x 173, 173 (4th Cir. 2017) (per curiam) (“[The defendant] is not entitled to relief because he was sentenced as a career offender, and the career offender Guideline was not impacted by Amendment 782.”).
The First Step Act was passed in 2018 to provide relief for those inmates who were sentenced before the 2010 Fair Sentencing Act, which was not retroactive, and who were excluded from the guideline amendments due to the technical application of provisions like career offender status.
What is the First Step Act of 2018?
The First Step Act, passed eight years later, makes the sentencing provisions of the Fair Sentencing Act retroactive, allowing defendants who were sentenced as career offenders before 2010 and who were not eligible for relief under the subsequent guideline amendments to ask the court to review their cases.
Who is Eligible for a Sentence Reduction Under the First Step Act?
As a practical matter, the First Step Act allows defendants who would have been eligible for a sentence reduction under the Fair Sentencing Act, but 1) were sentenced before August 2010 and 2) could not benefit from the subsequent guideline amendments to ask the court to review their case.
The First Step Act “authorizes a court ‘that imposed a sentence for a covered offense’ to reduce a defendant’s sentence. First Step Act § 404(b), 132 Stat. at 5222. Accordingly, eligibility turns on the proper interpretation of a ‘covered offense.’”
What is a “Covered Offense” Under the First Step Act?
The First Step Act allows an inmate to petition the court for a sentence reduction only if they were convicted of a “covered offense,” which means any offense that had its penalties changed by the Fair Sentencing Act of 2010 where the person was convicted prior to the passage of the Fair Sentencing Act:
A “covered offense” is defined as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.” Id. § 404(a), 132 Stat. at 5222 (citation omitted). In Defendant’s view, the phrase “the statutory penalties for which” refers to “a Federal criminal statute.” See Reply Br. at 4. The result of that interpretation would be that any inmate serving a sentence for pre-August 3, 2010 violations of 21 U.S.C. § 841(b)(1)(A)(iii) or (B)(iii)—both of which were modified by Section 2 of the Fair Sentencing Act, see Fair Sentencing Act § 2(a), 124 Stat. at 2372—is serving “a sentence for a covered offense” and may seek a sentence reduction under the First Step Act.
Is the Court Required to Give a Sentence Reduction Under the First Step Act?
Sentence reductions under the First Step Act are not mandatory – it provides a way to get your case into court for review, and then the district court can grant the sentence reduction, or the court may deny it. It is in the court’s discretion:
District courts then “may,” at their discretion, “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed.” First Step Act § 404(b), 132 Stat. at 5222 (citation omitted).
For example, in US v. Wirsing, the Fourth Circuit Court of Appeals reversed the district court’s determination that Wirsing was not eligible for relief under the First Step Act because he was not serving a sentence for a “covered offense.”
The Court held that Wirsing’s offense was a covered offense, and he was eligible for a sentence reduction if appropriate, because he was “serving a sentence for pre-August 3, 2010 violations of 21 U.S.C. § 841(b)(1)(A)(iii) or (B)(iii)—both of which were modified by Section 2 of the Fair Sentencing Act.”
The Court did not order the lower court to grant the sentence reduction, but it ordered the lower court to consider the defendant’s motion for a sentence reduction – a reduction that, for some inmates, would result in their release for time served.
How Do I Get a Sentence Reduction Under the First Step Act?
If you or your loved one in prison was sentenced for a federal drug offense before August of 2010 and was unable to get a sentence reduction due to career offender status, call my office at (803) 331-3421 or send me a message through my website for a case review.
If you qualify for a sentence reduction under the First Step Act, we can petition the court to reduce your sentence based on the 2010 Fair Sentencing Act’s provisions which, in some cases, may result in time served and your release from prison.
Federal Criminal Appellate Attorney in Columbia, SC
Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.
For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.
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