Answers to your Frequently Asked Questions about Recently Passed Drugs Minus Two Retroactivity

Post Date: July 22, 2014

On July 18, 2014, the U.S. Sentencing Commission voted to make the two-level reduction in drug guidelines retroactive so that prisoners serving drug sentences can apply for a sentence reduction. Here are some answers to your frequently asked questions:

1. A lawyer sent me some information and said he can help me get a sentence reduction but I have to pay him. How do I know who to trust?

You do not need to hire a private attorney. The majority of prisoners who will be eligible for reductions will be entitled to legal representation free of charge by Federal Public Defenders or appointed counsel in the district where the prisoner was sentenced. Federal Public Defenders are likely to be appointed for prisoners. They are the best lawyers for the job, as they are federal criminal law experts, have been representing people in seeking and obtaining sentence reductions for many years, and do it free of charge.

It will take some time for lawyers to be appointed, so be patient. And, yes, there will be a few districts where courts may decide not to appoint free lawyers. But they are likely to be very few districts. So, don’t run out and hire a lawyer before you know whether you need to. If you are still considering hiring a private attorney, at least first contact the Federal Public Defender in the district in which you were sentenced. They may already be looking into your loved one’s case.

2. Who does Drugs-Minus-Two retroactivity affect?

Retroactivity means that certain federal drug prisoners will be able to ask the court to reduce their prison sentence by two guideline levels. Many prisoners who received a sentence under the federal Sentencing Guidelines will be eligible for the reduction. Those excluded will include people serving mandatory minimums and people sentenced under the Career Offender guideline (section 4B1.1 of the guideline manual). It will also exclude a prisoner whose calculated drug guideline was level 12 or lower, and it excludes defendants whose offenses are associated with very large quantities of drugs.

3. Who won’t be helped by Drugs Minus Two retroactivity?

  1. Prisoners sentenced for crimes other than a drug offense.
  2. Prisoners serving a mandatory minimum for a drug offense.
  3. Prisoners sentenced under the Career Offender guideline (section 4B1.1 of the guideline manual).
  4. Prisoners convicted of state crimes in state courts (in other words, only federal offenders are eligible).

4. Why does Drugs Minus Two retroactivity exclude people sentenced under the Career Offender guideline, section 4B1.1?

Unfortunately, even though one’s Career Offender sentence can be based on a drug conviction, a person sentenced under the Career Offender guideline, section 4B1.1, is not sentenced under the drug guideline, section 2D1.1. The retroactive amendment did not impact or make any changes to the Career Offender guideline, only to the drug guideline.

5. But, if the drug guidelines are reduced, doesn’t that affect my Career Offender status?

No. One’s Career Offender guideline sentence under section 4B1.1, even if triggered by a drug conviction, is not based on the drug guideline, section 2D1.1. One is considered a Career Offender when one has at least two prior felony convictions for a crime of violence or controlled substance offense and the current offense is a drug offense or crime of violence. The length of the Career Offender guideline sentence is calculated based on the statutory maximum for the current offense of conviction. The retroactive amendment does not change the Career Offender guideline, section 4B1.1, or any statutory maximums.

6. Why Does Drugs Minus Two retroactivity exclude mandatory minimums?

Mandatory minimums are set by Congress and cannot be changed by the Sentencing Commission. This includes the mandatory minimum 20-year and life sentences enhanced under 21 U.S.C. section 851, for drug offenders with prior felony drug convictions.

7. I was sentenced above the mandatory minimum.  Will it interfere with how much time I will have my sentence reduced?

It could limit how much of the reduction you can receive.  For example, if you were sentenced to 63 months for a drug offense with a five-year mandatory minimum and are eligible for a two-level reduction (to 51 months), the five-year mandatory minimum will limit the reduction the judge can order in your case to 3 months, because the mandatory minimum of five years, or 60 months, trumps any guideline reduction. 

8. I heard some people were going to be excluded because of criminal history or enhancements. Did that happen?

No, it did not. The Commission decided against excluding prisoners from eligibility for Drugs Minus Two retroactivity based on their criminal history or enhancements in their case, such as for guns or obstruction of justice. Judges will be able to consider every prisoner (aside from people sentenced under the Career Offender guideline, those serving mandatory minimums, and those with the highest and lowest drug quantities) on an individual basis. Judges are required to consider public safety and may deny a reduction if they feel that a prisoner’s early release could pose a danger to the community.

9. Will I be eligible if I already benefitted from the Safety Valve or because of cooperation?

Yes. Prisoners are still eligible for retroactivity due to the safety valve or cooperation.

10. How does retroactivity work?

The process begins by filing a motion that requests a sentence reduction under 18 U.S.C. section 3582(c)(2), in the court where the prisoner was sentenced. The court will decide whether to grant retroactivity. These are not full re-sentencings. The only thing the judge can do is determine if the prisoner should receive a two-level sentence reduction. The judge may not adjust the sentence in other ways. If the prosecutor agrees with a reduction, he or she may join the defendant’s attorney in a “consent” motion, or may simply decline to respond to the defense’s motion. Sometimes a prosecutor will disagree and oppose a motion or sentence reduction. When that happens, the defendant’s attorney will reply to rebut the prosecutor’s objections. Then the court decides and issues an order granting or denying the motion.

11. How can I apply?

Generally, prisoners will be given a lawyer to represent them in filing their motions for the sentence reductions. Before you even think about hiring a lawyer or asking your loved ones to do so, check with the Federal Public Defender in the district in which you were sentenced. They can tell you if they are going to be appointed to represent you. But give it some time, as everyone is just getting organized, and no motions can be granted before November 1, 2014.

12. When can I apply?

Judges can start considering motions as early as November 1, 2014.  Judges may grant retroactivity as early as November 1, 2014, but no prisoner can be released early before November 1, 2015, a year later. It is also likely that lawyers and the courts will triage motions to ensure that those prisoners eligible for immediate release and release in the first months or year will be considered first.

13. I heard that no one can be released before November 1, 2015. That is more than a year away. Is that right and if so, why the long wait?

Yes, November 1, 2015, is the earliest a prisoner can be released. The Commission gave three reasons for the delay: (1) Over 46,000 people will be eligible for a shorter sentence. Nearly 8,000 will be eligible for release in November 2015. The delay will give the government and counsel time to prepare and judges more time to consider the many motions they will receive and carefully weigh each case. (2) The delay will give the Bureau of Prisons time to give prisoners transition services to help ensure their successful return to the community. (3) The delay will help Probation to secure the staffing needed to help the courts with the motions and then supervise the many prisoners who will be released early.

14. I will be released before November 1, 2015. Will the reduction also reduce my supervised release time?

If a judge would have granted the two-level reduction but could not because the prisoner was released prior to November 1, 2015, the judge can take that situation into account later if the prisoner moves for early termination of their term of supervised release.  Federal law permits a judge to terminate supervised release after one year. A judge considering an early termination request may consider the fact that the former prisoner was entitled to but prevented from getting sentence reduction because she was released before November 1, 2015. That can’t be the only factor the judge looks at when deciding whether to end supervised release early. Rather, the court has to consider a variety of factors when deciding if early termination is warranted. But, one of the factors is what term of supervised release would have been appropriate in light of the lower, drug minus two, guideline.