With the above in mind, let\u2019s talk about how one goes about applying for retroactive Fair Sentencing Act<\/strong> relief. I have assembled a series of Frequently Asked Questions about this, which are below.<\/p>\n Answer: No. There are a lot of individuals spouting on about 18 U.S.C. 3582(c)(1)(B) as being the proper basis to file a retro Fair Sentencing Act<\/strong> motion. Section 3582(c)(1)(B) provides:<\/p>\n (c) The court may not modify a term of imprisonment once it has been imposed except that<\/p>\n (1) in any case\u2014<\/p>\n (B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure<\/p>\n 18 U.S.C. 3582(c)(1)(B). The proponents of using 3582(c)(1)(B) have latched on to the statutory language about how a court can \u201cmodify an imposed term of imprisonment to the extent otherwise expressly permitted by statute\u201d to support their argument. But 3582(c)(1)(B), contrary to what some people may suggest, is a LIMITING statute. In other words, 3582(c)(1)(B) CONSTRAINS a courts ability to modify a sentence unless it is \u201cotherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.\u201d<\/p>\n The source for any motion seeking a sentence reduction pursuant to the Fair Sentencing Act<\/strong> of 2010 is the First Step Act of 2018, NOT 18 U.S.C. 3582(c)(1)(B).<\/p>\n Section 404 of the First Step Act of 2018 provides:<\/p>\n A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act<\/strong> of 2010 (Public Law 111\u2013220; 124 Stat. 2372) were in effect at the time the covered offense was committed.<\/p>\n Section 404 of the First Step Act of 2018 is the statutory basis upon which to seek retroactive application of the Fair Sentencing Act<\/strong> of 2010. And 3582(c)(1)(B) does not bar a reduction pursuant to the retroactivity provisions of the First Step Act of 2018 because that statute \u201cexpressly permits\u201d sentence modifications.<\/p>\n For the detractors, please keep in mind the following and ponder on the questions I have posed.<\/p>\n Answer: There are no set labels that you need to use. But as an example, you might simply call your motion: \u201cMotion for Reduction in Sentence Pursuant to First Step Act of 2018.\u201d At the beginning of your motion, you might write:<\/p>\n Defendant, JOHN DOE, respectfully moves for a reduction in his\/her sentence pursuant to Section 404 of the First Step Act of 2018 (\u201cFSA 2018\u201d). The FSA 2018 expressly makes the Fair Sentencing Act<\/strong> of 2010 retroactively applicable, and authorizes district courts to reduce a \u201csentence as if sections 2 and 3 of the Fair Sentencing Act of 2010<\/strong> (Public Law 111\u2013220; 124 Stat. 2372) were in effect at the time the covered offense was committed.\u201d Accordingly, for the reasons and arguments herein, the Court should reduce Doe\u2019s sentence to _________________.<\/p>\n Answer: First, you must be convicted for a crack cocaine, also known as \u201ccocaine base,\u201d offense. Second, you must have been sentenced before the Fair Sentencing Act<\/strong> of 2010 took effect or otherwise have not already received the benefits of the Fair Sentencing Act<\/strong> of 2010 (for example, in light of the Supreme Court\u2019s decision in Dorsey v. United States<\/em>, 567 U.S. 260 (2012). The Fair Sentencing Act<\/strong> of 2010 took effect on August 3, 2010. Thus, crack cocaine offenders sentenced BEFORE August 3, 2010, may be able to benefit from the change in law.<\/p>\n There is a big \u201cMAY\u201d to eligibility, though, because there are a lot of nuances to application of the FSA 2010 to individuals. To understand this nuance, we first need to discuss what the FSA 2010 actually did.<\/p>\n Before the FSA 2010, the amount of crack needed to trigger the higher statutory minimums and maximums was much lower than what it is needed today.<\/p>\n Title 21 U.S.C. 841 has three primary penalty sections, with different mandatory minimums and maximums.<\/p>\n 841(b)(1)(A) \u2013 10 to life (the minimum changes to 20 years with one qualifying prior conviction and becomes life with two qualifying priors, provided the Government files an 851 information notice)<\/p>\n ***The mandatory minimums for 851 enhancements have changed with the passage of the First Step Act. Since those provisions of the law are not retroactive, I refer to the prior minimums in discussing how application of the retroactivity provisions work***<\/p>\n 841(b)(1)(B) \u2013 5 to 40 years (the minimum changes to 10 years with a qualifying prior properly noticed under 851).<\/p>\n 841(b)(1)(C) \u2013 0 to 20 years (the maximum changes to 30 years with a qualifying prior properly noticed under 851).<\/p>\n The FSA 2010 made no changes to penalties under 841(b)(1)(C). Thus, we are really focused on 841(b)(1)(A) and 841(b)(1)(B).<\/p>\n A before and after look at the quantities of crack needed to trigger each penalty are as follows:<\/p>\n 841(b)(1)(A) \u2013 50 grams or more of crack needed<\/p>\n 841(b)(1)(B) \u2013 5 grams or more of crack needed<\/p>\n 841(b)(1)(A) \u2013 280 grams or more of crack needed<\/p>\n 841(b)(1)(B) \u2013 28 grams or more of crack needed<\/p>\n There are many different ways that defendants can potentially benefit. Here are three possible scenarios. These examples are not intended to be exhaustive of how the FSA 2018 applies.<\/p>\n Defendant pleaded guilty to an 841(a)(1) offense involving 5 or more grams of cocaine base in 2008. Defendant did not stipulate to a particular quantity at any point during the case other than the 5 grams needed to trigger the mandatory minimum. Defendant was not enhanced under 21 U.S.C. 851. In 2008, the statutory range of punishment was 5 to 40 years. But under the FSA 2010, the statutory range is 0 \u2013 20 years because 5 grams or more is less than the 28 grams needed to trigger the penalties under 841(b)(1)(B). The defendant will now be sentenced pursuant to 841(b)(1)(C).<\/p>\n Defendant proceeded to trial in 2004 and was found guilty of a 21 U.S.C. 846 crack conspiracy. The indictment charged 50 grams or more of crack. The Government filed an 851 information notice based on two qualifying priors. There was no special verdict about the quantities the defendant was responsible for. The defendant\u2019s sentencing range was mandatory life because of the 851 information notice and the 50 grams or more charged in the indictment. However, under the FSA 2010, the new range of punishment is 10 to life because 50 grams or more now falls under 841(b)(1)(B). The defendant can petition for a reduction in the life sentence down to the new mandatory minimum of ten years.<\/p>\n Defendant pleaded guilty in 2007 to one count of possession with intent to distribute crack under 841(a)(1) and (b)(1)(A). Indictment charged 50 grams or more of crack. Defendant did not stipulate to a higher quantity than 50 grams. The Government did not file an 851 information notice, but the defendant qualified as a career offender. The district court, over the defendant\u2019s objection, found by a preponderance of the evidence that the offense involved 100 grams of cocaine base. Because the career offender Guideline called for a higher base offense level of 37 compared to the base offense level for the crack by itself, the career offender Guideline controlled. Under the FSA 2010, the defendant\u2019s offense level is still controlled by the career offender guideline because the drug guideline produces a base offense level lower than career offender Guideline. But because the statutory maximum is now 40 years under (b)(1)(B) instead of life under (b)(1)(A), the base offense level is now 34 under the career offender provisions. The defendant should be able to petition for a sentence reduction pursuant to the FSA 2018.<\/p>\n Answer: No. The retroactivity provisions of the FSA 2018 as applied to the FSA 2010 are strictly limited to individuals who were convicted of crack offenses.<\/p>\n Answer: You might be eligible. Or you might not be. It really depends on how much drugs you were charged with for each drug type.<\/p>\n EXAMPLE: Defendant was charged in a drug conspiracy. The indictment alleged 50 grams or more of crack and 5 kilos or more of cocaine. Defendant pleaded guilty and was sentenced based on quantities in the Indictment. The FSA 2010 would not affect the defendant\u2019s sentence because the 5 kilos or more of cocaine would continue to trigger the higher minimum and maximum under 841(b)(1)(A).<\/p>\n Answer: If you stipulated to more than 280 grams of crack as part of a guilty plea, then you likely will be ineligible for the FSA 2010.<\/p>\n Facts admitted by a defendant as part of their guilty plea may be used to trigger higher mandatory minimum and maximums.<\/p>\nFREQUENTLY ASKED QUESTIONS – FAIR SENTENCING ACT RETROACTIVITY<\/strong><\/h2>\n
1) Someone told me that I should file an 18 U.S.C. 3582 motion when seeking retroactive application of the Fair Sentencing Act in light of the First Step Act of 2018. Is this the right way to proceed?<\/h3>\n
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2. So, if my motion is filed pursuant to the First Step Act of 2018, what should I call my motion?<\/h3>\n
3. How do I know if the retroactivity provision will affect me?<\/strong><\/h3>\n
BEFORE THE FSA 2010<\/h3>\n
AFTER THE FSA 2010<\/h3>\n
EXAMPLE ONE<\/h3>\n
EXAMPLE TWO<\/h3>\n
EXAMPLE THREE<\/h3>\n
4.\u00a0 I do not have a crack cocaine offense. Can I benefit from the Fair Sentencing Act?<\/h3>\n
5. But what if I have crack and another drug in my offense?<\/h3>\n
6. What if I stipulated to more than 280 grams of crack as part of my plea?<\/h3>\n
7. OK, but I did not stipulate to any drug amounts. All the drugs in my case are relevant conduct (\u201cghost dope\u201d). Can I benefit?<\/h3>\n
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