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| Raquel Wilson |
Practitioners should be aware of these changes and the legal analyses needed to determine whether a defendant might benefit from them. The same legislation could also affect an offender's conditions of confinement, or sentence length or both. Other key developments include U.S. Supreme Court cases invalidating statutes that impact penalties, particularly for offenders with prior convictions, and sentencing-focused legislation introduced in the Senate this year.
First Step Act
Signed into law on Dec. 21, 2018, the First Step Act[1] is the most significant federal sentencing reform since the Sentencing Reform Act of 1984.[2] The FSA deals mostly with the reentry of incarcerated individuals, directing the Federal Bureau of Prisons to take specific actions regarding programming, good-time credit and compassionate release, among other issues.
With regard to sentencing, the FSA makes important changes to mandatory minimum penalties in drug trafficking and firearms offenses, and to the safety valve provision that allows certain low-level drug traffickers to obtain relief from mandatory minimum penalties. Finally, the FSA enables crack cocaine offenders sentenced before the Fair Sentencing Act of 2010[3] to return to court for sentence reductions not made available to them when the Fair Sentencing Act was enacted.[4]
The sentencing reform provisions of the FSA are found in Title IV:
- Section 401 reduces enhanced mandatory minimum penalties for repeat drug trafficking offenders and changes the conditions required for enhancing the sentence;
- Section 402 broadens the existing safety valve at 18 U.S.C. § 3553(f) so that it applies to more drug trafficking offenders with more extensive criminal history;
- Section 403 reduces the severity of the stacking provisions at 18 U.S.C. §924(c), which prohibits certain actions with firearms taken in conjunction with crimes of violence and drug trafficking offenses;
- Section 404 applies retroactively the penalty reductions in the Fair Sentencing Act of 2010, enabling more crack cocaine offenders to return to court for sentence reductions.
Each of these provisions creates opportunities and pitfalls for litigants. Especially with regard to drug trafficking offenses, an understanding of these provisions at the start of any case is crucial.
Section 401
Higher mandatory minimum penalties apply when a drug trafficking offender has prior convictions of a certain type.
However, for the higher minimum penalties to apply, the government must file a notice of enhancement under 21 U.S.C. Section 851[5] before any plea of guilty or before a jury is sworn. The FSA not only reduced the minimum penalties that apply after such notice is filed, but also changed the prior offenses that qualify.
Before the FSA, a 10-year mandatory minimum could be enhanced to 20 years if the defendant had one prior conviction for a felony drug offense. That definition encompassed felony possession of drugs. Two or more such prior offenses would result in a mandatory life sentence. After the FSA, enhancement under Section 851 requires the defendant have a prior conviction for a serious drug felony or serious violent felony to enhance the 10-year mandatory minimum to a term of 15 years. Two or more such prior offenses result in a mandatory minimum of 25 years.
The terms "serious drug felony" and "serious violent felony" are defined in the statute. The serious drug felony definition comes from 18 U.S.C. Section 924(e)(2)(A) in the Armed Career Criminal Act. The definition requires that the prior offense have been punishable by at least 10 years of imprisonment and excludes mere possession felonies.
In some states, criminal statutes proscribe a maximum penalty but sentencing provisions limit a defendant's sentencing exposure depending on the offender's prior criminal record. The U.S. Supreme Court has held that the term "maximum term of imprisonment as prescribed by law" as that term is used in the ACCA, refers to the maximum sentence that the defendant actually faced incorporating any recidivist enhancements.[11]
The term serious violent felony is defined at 18 U.S.C. Section 3559(f). That statute enumerates certain offenses (e.g., murder, kidnapping) and includes any other offenses that have as an element the use of force and are punishable by 10 years of imprisonment or more, and offenses that by their nature "involve[] a substantial risk that physical force against the person or another may be used in the course of committing the offense" and are punishable by 10 years or more.
As to the "substantial risk" part of the definition, the Supreme Court has found similar residual clauses to be unconstitutionally vague.[7] Presumably, courts will apply the categorical approach to determine if a prior offense matches this definition.[8]
Section 402
The safety valve provision at 18 U.S.C. Section 3553(f) was enacted in 1991 to provide relief from mandatory minimum penalties for low-level drug trafficking offenders. The sentencing guidelines contain a companion provision providing for a two-level decrease to the offense severity level for offenders who qualify for the safety valve as originally enacted.[9]
Much of the original safety valve criteria remain in place but the requirement that the defendant have "no more than one criminal history point" has been amended to allow defendants with more criminal history points to qualify. The new statute states that the defendant must not have more than four criminal history points, excluding points resulting from 1-point offenses, and must not have any 3-point offense or 2-point violent offense. This analysis is less straightforward than it first appears.
For example, with regard to exclusion of 1-point offenses, there may be times when additional criminal history points are added as a result (at least in part) from 1-point offenses, such as when a defendant receives two status points for committing the instant offense while under a criminal justice sentence of probation for a 1-point offense. It is unclear whether these additional points should also be excluded from the 4-point maximum.
With regard to those 2-point violent offense that might disqualify a defendant, the FSA defines violent offense as a crime under 18 U.S.C. Section 16 that is punishable by imprisonment. Section 16 contains a two-part definition, the second part of which was invalidated by the Supreme Court as unconstitutionally vague.[10]
Other changes to the safety valve include a new provision stating that statements a defendant makes during a safety valve debriefing may not be used to enhance the sentence. It is not clear whether the court can use the information to determine the sentence in any respect other than applying a sentencing enhancement under the guidelines, such as determining where within the range to sentence the defendant, or whether to depart or vary from the guideline range. Finally, offenders convicted of certain maritime offenses may now be eligible for safety valve relief.
Section 403
Congress has drastically reduced the mandatory minimums that apply to multiple violations of 18 U.S.C. Section 924(c) charged in the same indictment. That statute prohibits using or possessing a firearm in the course of committing a drug trafficking offense or a crime of violence. Before the FSA a defendant facing multiple counts of Section 924(c) was subject to a five-year minimum for the first count, plus 25 years for each additional count in the same indictment.[11]
In the FSA, Congress clarified that Section 924(c) must be read as a true recidivist statute. In other words, to be subject to the 25-year mandatory minimum, the offense must be a subsequent offense occurring after conviction and sentence on a previous Section 924(c) offense. Congress did not make the clarification retroactive, so those offenders serving lengthy sentences are not specifically made eligible for relief under the FSA.
However, at least one offender serving a lengthy stacked sentence has been released from prison under compassionate release provisions where the government has not opposed early release.[12]
Section 404
Finally, Congress has applied retroactively those provisions of the Fair Sentencing Act of 2010 that reduced crack cocaine penalties by increasing the threshold amount of drugs needed to trigger mandatory minimum penalties. The FSA allows defendants to petition the court, or the court on its on motion, to reduce sentences if the defendant had not previously received the full benefit of the Fair Sentencing Act.
Early on, courts were taking different approaches to the type of proceeding involved. Some defense practitioners argued that the defendant was entitled to a full resentencing, including any benefits that have been conferred in the interim such as cases or rules changes that could affect career offender status. Two circuit courts have now weighed in to the contrary.
In United States v. Hegwood,[13] the U.S. Court of Appeals for the Fifth Circuit held that the defendant is not entitled to a plenary resentencing under the FSA. However, neither are courts constrained by sentencing guidelines rules governing retroactive sentence reductions by the sentencing commission,[14] because the FSA directly grants courts authority to reduce sentences for eligible defendants.
Because of this direct grant of authority, a defendant who failed to qualify for a guideline reduction because of his career offender status is eligible for a reduction under the FSA.[15] The most recent data available from the U.S. Sentencing Commission indicates that 57.2% of recipients of the FSA's retroactive sentence reductions were career offenders.[16]
Good Conduct Credits and Rehabilitation
The FSA made changes to calculation of credits for good conduct and program participation that could significantly reduce sentences for some offenders.
First, effective July of 2019, inmates may earn up to 54 days per year of the imposed sentence rather than 54 days per year served. This change effectuates arguments made by the defendants in Barber v. Thomas,[17] challenging the Bureau of Prisons' method for calculating good time credit, which resulted in a reduction of fewer than 54 days per year.
Second, as required by the FSA, the BOP has released a tool designed to measure inmates' risk of recidivism. The prisoner assessment tool targeting estimated risk and needs will also be used to determine programming for individual inmates, incentive awards, and timing of halfway-house placement or home confinement. The defendant's offense of conviction can determine whether he or she may earn additional time credits for participation in programs. The BOP has listed the offenses that would disqualify a defendant from earning those credits.[18]
Practitioners should consult the list as well as the relevant FSA provisions when advising clients and negotiating charges or plea agreements. The list includes firearms offenses prosecuted under 18 U.S.C. Section 924(c), offenses related to criminal street gangs, child pornography, some drug trafficking offenses and failure to register as a sex offender, among others.
Compassionate Release
The FSA empowers inmates to file their own petitions seeking early release for extraordinary and compelling reasons, whereas previously only the BOP could file a compassionate release petition with the court. The statute governing compassionate release is 18 U.S.C. Section 3582(c)(1)(A). The guideline at USSG Section 1B1.13 serves a gatekeeper function by delineating what circumstances constitute extraordinary and compelling reasons.[19]
They include terminal illness, serious medical conditions, age-related medical conditions and family circumstances, among others. Anecdotally, some judges have appointed counsel to inmates seeking compassionate release, but courts continue to explore the proper procedures for these cases, including when and how to involve supervising federal probation officers.
Future Legislation
Practitioners should be aware of possible legislation in the coming year, most notably proposed legislation that would disallow the use of acquitted conduct at sentencing. In September, Sen. Dick Durbin, D-Ill., introduced a bill that would amend 18 U.S.C. Section 3661 to prohibit the use of such information to increase a federal sentence.[20]
If enacted, such legislation could change the operation of the guidelines in cases where acquitted conduct is used to determine the guideline range. In November, Sen. Mike Lee, R-Utah introduced the Smarter Sentencing Act[21], which would reduce penalties for certain nonviolent drug offenders.
Supreme Court Developments
The Supreme Court decided several important cases of which practitioners should be aware. First, the court invalidated a provision governing when a defendant can be determined to have committed a crime of violence. In Davis v. United States,[22] the court said that a portion of a statute defining "crime of violence" was unconstitutionally vague. The case is the latest in a line of decisions invalidating similar provisions, known as residual clauses.[23]
Davis involves the definition of crime of violence that applies to 18 U.S.C. Section 924(c) offenses prohibiting certain acts with firearms in conjunction with a crime of violence or drug trafficking offense. Also related to determining whether a prior offense is a crime of violence for purposes of recidivist enhancements, the court held in Stokeling v. United States[24] that robbery offenses that require that the criminal overcome the victim's resistance to effectuate the robbery are crimes of violence under the Armed Career Criminal Act.
United States v. Haymond[25] will also be of interest to criminal practitioners. In that case, the court decided that a provision of law requiring the court to imprison an offender for violating the terms of supervised release was unconstitutional. Justice Neil Gorsuch wrote an opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, holding that mandatory imprisonment for Andre Haymond based on the court's finding the violation by a preponderance of evidence violated his right to trial by jury.
Justice Stephen Breyer concurred in the result on narrower grounds, noting his agreement with the dissent, that "the role of the judge in a supervised-release proceeding is consistent with traditional parole." Nonetheless, criminal defense practitioners will likely rely on Justice Gorsuch's opinion to argue once again that judicial fact-finding at sentencing violates the defendant's right to trial by jury.
Sentencing Commission Update
As 2019 comes to a close, practitioners should look forward to possible legislation affecting sentencing, as well as Supreme Court developments. As of this writing, the United States Sentencing Commission lacks a voting quorum to effectuate changes in response to the FSA or any other legislation.
If a voting quorum is restored through new appointments, amendments to the guideline would take effect no earlier than November 2020 absent legislation granting the commission emergency authority to promulgate guidelines on an earlier timeframe. Until then, the November 2018 guidelines remain in effect.
Raquel Wilson is the director of the U.S. Sentencing Commission's Office of Education and Sentencing Practice.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] First Step Act of 2018, Pub. L. No. 115—391, 132 Stat. 5194.
[2] Pub. L. 98—473
[3] Pub. L. 111—220. The Fair Sentencing Act increased the threshold quantities of crack cocaine required to trigger certain mandatory minimum penalties. At the time of the Act's passage, its sentence reductions were not made available to those already sentenced under the prior, harsher penalties.
[4] Chief Judge and former Chair of the U.S. Sentencing Commission Patti Saris describes the influence of Commission reports and recommendations to Congress on the sentencing provisions of the legislation. Patti B. Saris, The First Step Act is a Major Step for Sentencing Reform, LAW360, https://www.congress.gov/bill/116th-congress/senate-bill/2850?q=%7B%22search%22%3A%5B%22smarter+sentencing%22%5D%7D&s=1&r=1
[5] This section contains both substantive and procedural requirements for the filing of such notices.
[6] United States v. Rodriquez
, 553 U.S. 377 (2008). See also Carachuri-Rosendo v. Holder , 560 U.S. 563 (2010) (holding that the statutory maximum for the prior offense did not include a recidivist enhancement that the prosecutor elected to abandon under state law).[7] See Johnson v. United States
, 135 S.Ct. 2551 (2015) (invalidating a similar provision at 18 U.S.C. §924(e)(2)(B); Sessions v. Dimaya , 138 S.Ct. 1204 (2018) (invalidating a similar provision at 18 U.S.C. § 16(b)); United States v. Davis , 139 S.Ct. 2319 (2019) (invalidating a similar provision at 18 U.S.C. § 924(c)).[8] See, e.g., Mathis v. United States
, 136 S.Ct. 2243 (2016) (describing the categorical approach).[9] USSG §§5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) and 2D1.1 (Drug Trafficking Guideline).
[10] Sessions v. Dimaya, 138 S.Ct. 1204 (2018).
[11] The Supreme Court approved of this interpretation of the statute in Deal v. United States
, 508 U.S. 129 (1993).[12] See United States v. Chad Marks
, Case number 03-CR-6033, Western District of New York, Order entered on March 14, 2019. The case is described here: https://sentencing.typepad.com/sentencing_law_and_policy/2019/03/federal-judge-pens-extraordinary-and-compelling-order-requesting-us-attorney-to-vacate-stacked-924c-.html[13] United States v. Hegwood
, 934 F.3d 414 (5th Cir. 2019). See also United States v. Williams , __ F.3d __ (8th Cir. 2019) (defendant not entitled to a hearing on his motion).[14] United States v. Wirsing
, __ F.3d __ (4th Cir. 2019)[15] United States v. Beamus
, __ F.3d __ (6th Cir. 2019) (FSA reductions are not under 18 U.S.C. §3582(c)(2) and are not subject to its restrictions).[16] U.S. Sentencing Commission First Step Ac of 2018 Resentencing Provisions Retroactivity Data Report, October 2019, at Table 5. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/first-step-act/20191030-First-Step-Act-Retro.pdf
[17] Barber v. Thomas
, 560 U.S. 474 (2010).[18] The list is published on the BOP's website here: https://www.bop.gov/resources/fsa/time_credits_disqualifying_offenses.jsp (visited on Dec. 5, 2019).
[19] At least one district court judge has found that the guideline no longer serves as a gatekeeper because of a change the First Step Act made allowing defendants to file a petition with the court after exhausting administrative remedies within the BOP. United States v. Cantu
, 2019 WL 2498923 (S.D. TX June 17, 2009). Other courts have disagreed with that analysis. See, e.g., United States v. Lynn , 2019 WL 3805349 (S.D. AL, August 13, 2019) ("Congress left the task of fleshing out the universe of extraordinary and compelling reasons to the Commission, not the judiciary.")[20] Prohibiting Punishment of Acquitted Conduct Act of 2019. https://www.congress.gov/bill/116th-congress/senate-bill/2566?q=%7B%22search%22%3A%5B%22acquitted+conduct%22%5D%7D&r=1&s=2
[21] https://www.congress.gov/bill/116th-congress/senate-bill/2850?q=%7B%22search%22%3A%5B%22smarter+sentencing%22%5D%7D&s=1&r=1
[22] Davis v. United States
, 139 S.Ct. 2319 (2019).[23] See Johnson v. United States, 135 S.Ct. 2551 (2015) (invalidating the residual clause at the Armed Career Criminal Act); Sessions v. Dimaya, 138 S.Ct. 1204 (2018) (invalidating the residual clause at 18 U.S.C. § 16)
[24] Stokeling v. United States
, 139 S.Ct. 544 (2019).[25] United States v. Haymond
, 139 S.Ct. 2369 (2019).