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Who Can Apply for a Sentence Reduction Under the Recent “Drugs Minus Two” Federal Sentencing Guideline Amendment?

Only July 18, 2014, the United States Sentencing Commission unanimously voted to make a recent amendment to the federal sentencing guidelines retroactive. The amendment was a significant change to the drug quantity table in §2D1.1 that the Sentencing Commission unanimously approved in April.

Generally, the “Drugs Minus Two” amendment reduces the base offense level by two points in most federal drug cases. Going forward, a person’s federal sentencing guidelines will be calculated with the benefit of these reduced offense levels for the drug quantities involved in the case. (The drug quantity table still has a minimum base offense level of 6 and a maximum base offense level of 38.)

Among other things, the Sentencing Commission noted that this amendment would help address prison overcrowding within the federal Bureau of Prisons. According to recent statistics, federal prisons are over capacity by 32%, with federal drug defendants accounting for approximately half of all people incarcerated in federal prisons. Considering the fact that the government spends more than six billion dollars a year on federal prisons, reducing the number of inmates serving time for drug offenses will save a lot of money.

Before making this amendment retroactive, the Sentencing Commission received thousands of letters and conducted hearings. There were proposals from a variety of different organizations to limit the application of this amendment. One proposal would have limited the amendment to inmates who had qualified for “safety valve” treatment at the time of sentencing. Another proposal would have limited the amendment to defendants who had no history of violence and did not use any firearms in connection with their offense. Another proposal would have required the Sentencing Commission to consider the person’s criminal history before determining whether the reduction would apply.

Ultimately, the Sentencing Commission decided not to limit the application of this new amendment in any of these ways. Almost every inmate who is currently serving time for a federal drug crime may be entitled to a reduction under this “Drugs Minus Two” amendment. According to the Sentencing Commission, there are approximately 48,000 people who will likely qualify for a sentence reduction under this new amendment. For those that are successful in their petitions, the Sentencing Commission estimates that the average sentence reduction will be about two years.

The real question now is how to go about getting this reduction under the new guideline amendment.

While the Sentencing Commission unanimously approved this change, and its retroactive application, Congress has until November 1, 2014 to stop this change from going forward. If Congress does not act, then the amendment will take effect and be applied retroactively. If it takes effect as planned on November 1, there will still be another year before anyone can actually be released based on this reduction.

Once the amendment takes effect, district courts are authorized to accept motions to reduce sentences based on this guideline amendment. Once such a motion is filed, the court will likely consider several factors before determining if a reduction in a person’s sentence is warranted. The inmate’s prison record will be considered, as will the facts that led to the conviction. The government will have an opportunity to object to any reduction. Courts may also require the inmate to appear at a hearing before ruling on the request for a sentence reduction.

At this time, there is no set procedure in place to process a request from an inmate wanting to reduce his or her sentence. It is up to the inmate to get the request filed and considered by a court. For guideline amendments that apply retroactively (like this one), a motion should be filed pursuant to 18 U.S.C. §3582(c)(2). The court will consider the factors in §1B1.10 of the federal sentencing guidelines before granting or denying the request.

Many people anticipate that district courts will handle these requests much like they did with the retroactive change in the crack cocaine sentencing guidelines. In most districts, the Federal Defender Office worked with the United States Probation Office to determine who might qualify for a reduction. A motion or petition would then be prepared and submitted to the United States Attorney’s Office for its consideration. In many cases, the government would not oppose a reduction and the court would grant it without the necessity of a hearing. In some cases, however, the government would oppose the reduction and require that the court make a determination based on the arguments from both sides. We have heard, however, that the Federal Defender Offices have not yet been authorized to assist inmates in this process. Of course, an inmate is always free to retain private counsel to assist with the application for a reduction.

Several people have already called our office asking for our assistance in filing these motions for a reduced sentence. Although the motions cannot be considered by the Court until November 1, 2014, we are starting to help inmates collect the information they will need to win a sentence reduction under this amendment. The first step is an honest evaluation of the inmate’s case and prior sentence to see if he or she will qualify for a reduction. The second step is to prepare a detailed motion to file with the court once the amendment goes into effect.

I think this is a great development and long overdue. I applaud the Sentencing Commission for reducing the drug quantity table offense levels and for making this reduction apply retroactively. This is a significant reduction that should allow many people to be released from prison early.