The Fair Sentencing Act Is Now Retroactive: What It Means for Old Crack Sentences

If you were convicted of a crack cocaine offense committed before August 3, 2010, you may be able to ask the judge for a shorter sentence. Section 404 of the First Step Act, signed December 21, 2018, makes that possible. Of the First Step Act's several fixes for the mistakes of the past, this is one of the most important.

Update (October 2026): The Supreme Court has since narrowed and clarified this law. Only crack offenses that carried a mandatory minimum qualify. Terry v. United States (2021). Judges may consider changes in law and facts since the original sentence. Concepcion v. United States (2022). This post has been updated to match.

Why the law changed

In the 1980s, when the "war on drugs" was in full swing, Congress set much harsher penalties for crack cocaine than for powder cocaine. It took 100 times as much powder as crack to trigger the same mandatory minimum. That gap led to longer sentences for Black defendants compared to defendants of other races.

The Fair Sentencing Act, which took effect August 3, 2010, shrank the gap to about 18 to 1. It did not make crack and powder equal. It also applied only to people sentenced after August 3, 2010. Dorsey v. United States, 567 U.S. 260 (2012). People sentenced before that date had to keep living with the unfair gap between crack and powder sentences.

The First Step Act changed that. It lets courts apply the Fair Sentencing Act retroactively, meaning to people whose crack offense was committed before August 3, 2010, and who did not already get the benefit of the 2010 law (First Step Act § 404(a)).

The original August 2019 version of this article reported that the change had already led to sentence reductions for 1,691 people who could not use the Fair Sentencing Act before. Note (October 2026): That figure is from the original 2019 article and has not been updated. The U.S. Sentencing Commission publishes later data on Section 404 reductions.

Below are answers to the most important questions about how to get a reduction.

Who is eligible?

You may be eligible if:

• You were convicted of a crack offense whose penalties the Fair Sentencing Act changed. That mainly means 21 U.S.C. § 841(b)(1)(A) or (B), or simple possession of crack under 21 U.S.C. § 844(a). A crack conviction under § 841(b)(1)(C) does not qualify. Terry.
• The offense was committed before August 3, 2010.
• You did not already get the benefit of the Fair Sentencing Act.

Section 2 of the Fair Sentencing Act raised the amount of crack needed to trigger the 5- and 10-year mandatory minimums. Section 3 removed the mandatory minimum for simple possession of crack. Either change alone can lower a sentence a lot. A lawyer who handles federal sentencing, such as Brandon Sample, can review the judgment and the record to see whether you can get your sentence reduced.

Are there limits?

Yes. First, the judge does not have to reduce your sentence. First Step Act § 404(c). The judge must review the merits of each motion. A reduction is not automatic.

Second, you cannot use Section 404 if your sentence was already imposed or reduced under the Fair Sentencing Act.

Third, if you filed a Section 404 motion before and it was denied after a complete review on the merits, you cannot file another one. That makes your first motion important. If it is denied, talk to a lawyer right away: the notice of appeal in a criminal case is usually due within 14 days. Fed. R. App. P. 4(b)(1)(A).

Can a career offender get a reduction?

Often, yes. "Career offender" is a Guidelines label for people with certain prior convictions. Their guideline range depends on the statutory maximum. If the Fair Sentencing Act lowers your statutory maximum, your career offender range can go down too.

What does the judge consider?

The judge first recalculates your guideline range as if the Fair Sentencing Act had been in effect. Concepcion. The judge then looks at the factors in 18 U.S.C. § 3553(a), such as the facts of the crime, your history, and the need for deterrence.

Under Concepcion, the judge may also consider later changes in the law and what you have done since sentencing, such as classes, work, and your prison record. The judge must consider your arguments but does not have to agree with them.

Section 404 does not say the judge must hold a full resentencing hearing. The judge can choose to hold a full resentencing or a more limited proceeding. Either way, the Guidelines and the § 3553(a) factors still guide the decision.

Who can file the motion?

The person in prison does not have to start the process, though you can. So can the Director of the Bureau of Prisons or the prosecutor. The court can also act on its own. First Step Act § 404(b).

The original article said the Chief Judge of each district can get a list of people who may be eligible and can reduce their sentences on the court's own motion. Note (October 2026): That point is from the original 2019 article. Whether a list is available depends on each district's practice. The statute itself only says the court may act on its own motion.

What to do next

The First Step Act fixed part of an unfairness that lasted for decades in cocaine sentencing. If you or a loved one is serving an older crack sentence that was never reduced, it is worth checking whether Section 404 applies. Start by gathering the judgment, the docket number, the indictment or plea agreement showing the statute of conviction, and the presentence report if you have it. Our Fair Sentencing Act FAQ covers the details.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.