Thursday, December 20, 2018

Changes in Drug and 924(c) Penalties: The First Step Act

The First Step Act passed Congress this week, and should be enacted by Friday. This Act lessens significant drug and firearm penalties and expands safety valve availability. It also has a “prison reform” section, which we will address in our next post.

Here, we highlight some of the penalty changes. More detailed analyses will follow, as it is more complicated than I describe below. This is just to introduce what you need to know today. Hold off on negotiations or sentencings until you know whether and how the Act may affect your case. These changes are not retroactive—you probably can’t fix this later.

851 enhancements. With one prior serious drug felony, the mandatory minimum is 15 years instead of 20. For two, the mandatory minimum is now 25 years instead of life. 
Note: Kansas USAO is one of the top ten districts in the nation for 851 filings.

And it is no longer any "felony drug offense.” A “serious drug felony” is:
  •   described in § 924(e)(2) (generally punishable by more than ten years in prison),* and
  •   client actually served more than 12 months' imprisonment, and
  •   client was released within 15 years of the commencement of the instant offense.

Unfortunately, 851s can now also be triggered by prior “serious violent felonies”, not just drug offenses. Those are:
  •   defined in § 3559(c)(2) (includes inchoate offenses but limits to force-against-person felonies), and 
  •  client served more than 12 months' imprisonment, but 
  •  no staleness limitation.

Safety Valve. Now allows up to 4 CHC points and still qualify, as long as none are 3-point offenses or 2-point violent offenses. Also, this counting “excludes any criminal history points resulting from 1-point offense.” Applies only to a conviction entered on or after the date of enactment.

Practice note: remember this implicates the 2-level reduction under § 2D1.1(b)(17); ask for the equivalent variance, because the change will not yet appear in the guidelines.

Multiple 924(c)s. Multiple 924(c) convictions can no longer be consecutively stacked within one case (5 years + 25 years + 25 years = 55 years). Now, the convictions must be successive, that is, the conviction of the first 924(c) must be final before the second 924(c) offense occurs. This applies to any offense committed before the enactment if the sentence has not yet been imposed.

Ex post facto. The general rule of thumb for offenses committed before the Act but not yet sentenced is this: If the changes help your client, they should apply. If they  hurt your client (increases the punishment), it should be barred by ex post facto  considerations.

Retroactive Provisions. The Act made the Fair Sentencing Act of 2010 (crack v. powder statutory revisions) retroactive. Questions?  Contact for answers.

-- Melody

*federal drug felony or state drug trafficking felony with a maximum term of imprisonment of ten years or more, see U.S. v. Romero-Leon, 622 Fed. Appx. 712 (10th Cir. 2007).

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