Wednesday, November 6, 2013

The Smarter Sentencing Act

On October 30, companion legislation to the Senate's Smarter Sentencing Act was introduced into the House of Representatives.  The National Journal lists the Act among its 7 bills that could actually pass.  "Busted by the Feds", the Bible of our clients, believes the legislation has a good chance of passing. (And who am I to argue with "Busted by the Feds"?) So, what does this most excellent piece of legislation actually do?

First, the bill would amend 18 U.S.C. 3553(f)(1) to extend the federal safety valve to defendants in criminal history category II.  That's something.

Second, the bill would make the Fair Sentencing Act of 2010 retroactive to most defendants.by permitting them to file a motion for the district court to apply the penalties of the FSA to their case.  This could be huge. There are about 12,000 defendants who would benefit from such an approach, especially those whose new guideline sentence after Sentencing Commission Guideline 750 is far below the mandatory minimum sentence they are serving under the old law.

Third, and most significantly, the bill would amend federal mandatory minimum sentences.  It would directly amend 21 U.S.C. 841 (b)(1)(A) to reduce the mandatory minimum penalty from ten to five years.  The bill would also change the penalty after an 851 information is filed from twenty years to ten years, though there is no language which would remove a life imprisonment penalty if two 851 informations are filed.

The bill also makes changes to the mandatory minimums under 841(b)(1)(B), reducing the mandatory minimum from five years to two years, and changing the effect of an 851 information to require a mandatory minimum of five years instead of ten.  The bill also makes identical changes to the penalties set out in 21 U.S.C. 960.  The long and short of things is that the bill cuts most mandatory minimums in half, with corresponding changes to the effect of 851 enhancements.

Finally, the bill directs the Sentencing Commission to issue emergency amendments within 120 days to "ensure that the guidelines and policy statements are consistent with the amendments made by sections 2 and 4 of this Act and reflect the intent of Congress that such penalties be decreased in accordance with the amendments made by section 4 of this Act."  Well.  That's rather something.

Cross your fingers, everybody.

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