Wednesday, August 25, 2010
S. 1789, known as the Fair Sentencing Act of 2010, passed in Congress on July 28, 2010, and President Obama signed the bill into law on August 3, 2010.
In brief summary, the new law does four main things: FIRST, it changes the statutory 100:1 ratio in crack/powder cocaine quantities that trigger the mandatory minimum penalties under 21 U.S.C. § 841(b)(1); SECOND, it reduces the statutory 100:1 ratio to 18:1, by increasing the threshold amount of crack cocaine to 28 grams (for the 5-year mandatory minimum) and 280 grams (for the 10-year mandatory minimum); THIRD, it does away entirely with the 5-year mandatory minimum for simple possession of crack, and FOURTH, it directs the U.S. Sentencing Commission to amend the Sentencing Guidelines to reflect the statutory changes made by the new law.
What does this mean for people in the federal system? It means that those sentenced after November 1, 2010 will receive sentences under the new lower Guidelines.
What does it mean for those who have already been sentenced? Nobody is exactly certain.
We will have to wait to see whether the Sentencing Commission votes to make the Guidelines retroactive. Most believe that it will be November 1, 2011 before the Sentencing Commission can do so, but some believe it may be possible for it to happen as early as November 1, 2010. We will have to wait to see.
We will further have to wait to see whether, and to what extent, the changes to the Mandatory Minimums will be retroactive. There is a difference of opinion among those following this, as well. Some believe that it is already retroactive because the language of the bill doesn’t say that it is not retroactive. Some believe that it is not retroactive because the bill does not say that it is. Some believe that Congress will have to pass a separate bill to make it retroactive.
The bottom line is that we will have to wait, at least until November of 2010 to begin to unravel all of this and to begin to have more clarity.
In the meantime, what friends and relatives can do to prepare to try to help is to locate a copy of the defendant’s Presentence Investigation Report (sometimes referred to as the “PSI” or “PSR”). This is the document that I, or any other attorney, will need to review an individual’s case for eligibility under the new law when the time comes. Starting this November, I will begin reviewing individual cases for eligibility.
Those sentenced before November 1, 2007, may have additional options under the new law, even if the Fair Sentencing Act of 2010 is not made retroactive, which may be worth exploring in November.
Finally, I am finding still that there are individuals who may be eligible for relief under the 2007 retroactive crack amendment, but who have not filed a motion yet. Further, I have found that a number of inmates’ motions were improperly denied because the motion was filed before those involved had a thorough understanding of the applicability of the 2007 guideline amendment. So, for anyone sentenced before November 1, 2007, it may be worthwhile to read the article below on the 2007 Retroactive Crack Amendment.
For other resources that may be helpful to federal inmates and their families, please see my full website at: www.drugandgunlawyer.com .
Thursday, January 3, 2008
Introduction to the Retroactively-Applied "Crack" Cocaine Amendment to the U.S. Sentencing Guidelines of 2007
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If you know someone serving a sentence in federal prison for "crack" cocaine, then you will want to read this. The information you gain on this one page could set a friend or family member on the path to being released from prison YEARS sooner than expected!
Please scroll all the way to the bottom for an important update. Especially important is the last two paragraphs on this page, dealing with inmates who have been told that there is no hope because they were categorized as "Career Offenders" or who received a mandatory minimum sentence.
You may want to bookmark this page, add it to your "favorites" or print it out now! You may also wish to print out this blog and mail it to an inmate who could benefit from this important change in the law. For more information, see my website: http://www.drugandgunlawyer.com/
To get updates on changes in law regarding drugs, sentencing, and federal inmate issues, please follow me at http://twitter.com/drugandgunlaw .
I am a federal criminal defense attorney. I am publishing this blog to provide understandable information about the new "crack" provisions of the United States Sentencing Guidelines, as well as information about their retroactive applicability and what individuals can do to seek a reduction in their federal sentence.
In 2007, the United States Sentencing Commission began debating and taking public comment on proposed amendments to the U.S. Sentencing Guidelines. Among the amendments being considered was one to effectively reduce the length of sentences given to "crack" or cocaine base offenders. The proposed amendment essentially provided that any particular quantity of "relevant conduct" quantity of crack would fall two levels lower on the Sentencing Guideline Table than it did previously.
The amendment has some historical background. Back when the law was passed that established how long sentences were to be for various amounts of various substances, it was determined that "crack" cocaine or "cocaine base" was so much more insidious than regular "powder cocaine" that sentences in crack cases ought to be much higher than sentences in powder cocaine cases. As a result, the U.S. Sentencing Guidelines were established setting up a 1 to 100 ratio between crack and powder cocaine. What this meant was that someone responsible for 10 grams of "crack" would receive the same sentence as someone responsible for 1000 grams (1 Kilogram) of powder cocaine.
It quickly became obvious to everyone involved that there was a serious problem with this disparity in the treatment of crack and powder cocaine offenders. Namely, crack cases primarily involve black or african-american individuals, whereas powder cocaine cases primarily involve white individuals. From the very beginning, a clamor arose from various corners of society regarding the injustice of this disparity. Civil rights groups, sentencing advocacy groups, minority advocacy groups, and criminal defense attorney groups began to see that, across the board, black defendants with a particular quantity of crack were receiving much harsher sentences than their white counterparts sentenced for the same quantity of powder cocaine.
The result of years of such clamoring was the proposed amendment to the crack provisions of the U.S. Sentencing Guidelines.
The "Crack" Amendment and Retroactivity
On November 1, 2007, the amendments to the guidelines were passed, with the Sentencing Commission stating that this was a first step toward eliminating the racial disparity set up by the Sentencing Guidelines. As of November 1, 2007, defendants sentenced in crack cases began receiving the benefit of the new Sentencing Guideline provisions. Defendants previously sentenced, however, did not.
What followed was an additional period for comment and debate concerning whether to specifically make the "crack" amendment retroactive. Specifically, the question for the U.S. Sentencing Commission was, "Do we allow those previously sentenced under this unjust and inequitable guideline suffer the injustice, or do we allow this amendment to be applied retroactively so that defendants previously sentenced in federal crack cases can ask the sentencing judge to reduce the previously-imposed sentence to bring it in line with the amendment?"
After debate, public comment, and a public hearing in Washington, D.C., on December 11, 2007, the U.S. Sentencing Commission did vote in favor of making the amendment retroactively applicable with a statement that the amendment will not become retroactive until March 3, 2008.
Practical ImplicationsAll of this has several implications for those who were sentenced in federal "crack" cases before November 1, 2007.
First, the inmate may be eligible to request that his sentence be reduced. The U.S. Sentencing Commission estimates that 19,500 inmates currently incarcerated in federal prison are eligible for a reduction in their sentence. Additionally, the Commission estimates that the average eligible inmate will receive a 27 month reduction in his or her sentence. Those with longer sentences will receive more benefit from the amendment than those with shorter sentences.
Second, inmates who were sentenced before the U.S. Supreme Court's decision in U.S. vs. Booker on January 12, 2005, may request a further reduction in their sentence based on factors that sentencing Judges were unable to consider before Booker.
Who is Eligible and Who is Not?
There are some individuals who are ineligible for relief under this amendment: 1) those sentenced to a statutory mandatory minimum sentence; 2) those whose sentence was imposed pursuant to the Career Offender enhancement where the Career Offender or Armed Career Criminal enhancement increased the total offense level; and 3) those whose total offense level was less than 12 or more than 43. There is some authority that suggests that there my be exceptions to the above-limitations that must be handled on a case-by-case basis.
It should be noted that, although someone may be technically eligible to request a reduction in his or her sentence, it is ultimately within the sole discretion of the Judge whether to grant the request or not. (Consequently, do not trust anyone who claims they can guarantee you a favorable result.)
However, it appears that a very large number, and perhaps a majority, of those who were sentenced in crack cases are eligible. In fact, the Sentencing Commission estimates that 3,800 eligible inmates could be released during the first 12 months.
In short, for those to whom this amendment applies, this is an opportunity for meaningful relief.
Here is how it is likely to work out, using a hypothetical example. Let's say that an individual convicted in a crack possession or conspiracy case is sentenced based on "relevant conduct" quantity of 500 grams of crack, and he or she has 4 criminal history points. The sentence range corresponds to Offense Level 36 and Criminal History Category of III. And based on this, the individual, then, before November 1, 2007, receives a sentence of 240 months (20 years).
Under the "crack" amendment, the individual would then be eligible to ask the sentencing Judge to give him a new sentence based on the amendment, and the appropriate sentencing range would now be 188 - 235 months. This means that, should the Judge in his discretion, grant the motion the 240 month sentence could be reduced to 188 months, for a reduction of 52 months (over 4 years). This is a significant reduction.
Further, if this individual was sentenced before January 12, 2005, the sentence may even be reduced further based on new factors that the Judge would be allowed to consider under Booker.
What to Do Now?
Have the inmate's Presentence Investigation Report (PSI) reviewed by an attorney who is very familiar with this sentencing guideline amendment to see if he or she is eligible to request a sentence reduction.
An inmate who believes he may be eligible for a reduction in his or her sentence based on the "crack" amendment should find out for sure if the amendment is applicable to him or her. An attorney is the only one who can determine whether someone is technically eligible and whether arguments can be made in "hard" cases for application of the amendment despite a "technical" ineligibility. The inmate should contact an attorney who is very familiar with the "crack" amendment and who is familiar with procedures related to seeking this particular type of post-conviction relief. The attorney will need to review the inmate's Presentence Investigation Report (sometimes referred to as the "PSI" or "PSR") to determine eligibility.
Up until now, I had been reviewing PSIs for eligibility at no charge. However, because of the overwhelming response, I am no longer able to do it for free, but now charge $250.00 for the review. For this fee, I will provide a written evaluation of the case explaining whether I believe the individual is categorically eligible, arguably eligible in spite of some possibly disqualifying factor, and what the range of possibilities would be, and what other relelief may be sought in connection with the motion. I will also discuss with you options such as any potential free resources that may be available.
If a trusted friend or family member does not have a copy to forward to me, then the inmate should send a SHORT letter to the attorney who handled the sentencing requesting that the PSI be forwarded to me.
If the inmate is eligible, an a attorney should file a motion under 18 U.S.C. Section 3582, in which the attorney will set forth factual and legal arguments for granting a reduction in the inmate's sentence. Although the inmate may file such motions on his or her own behalf, I advise all inmates to hire competent legal counsel. A competent attorney will be aware of what the Judge is likely to consider most relevant in making his decision, and he or she will be aware of what pitfalls to avoid. Additionally, matters handled by attorneys are much more likely to be successful than matters handled pro se.
If you know someone who would like me to review their case to see whether any relief is available to him or her, please have a copy of the PSI sent to me to review. While I am reviewing the PSI, I will also review it for other issues which could mean additional years off of the sentence.
I can handle these cases in any Federal Court in the United States.
Feel free to contact me with any questions you may have. My mailing address is Chad Van Cleave, Attorney at Law, P.O. Box 999, Cameron, Texas 76520. My office phone number is (512) 497-0604.
Emailing me is easiest and it is my preferred method of communication early on in evaluation of the case! My email address is firstname.lastname@example.org .
(To email this information to a friend, click on the envelope with an arrow at the bottom of this page!)
In my continuing quest to stay on the cutting edge of this issue, I recently attended a law conference at which this topic was covered in detail by a number of experts from around the country. I was very encouraged about a number of things that seem to be developing around the country related to this quickly developing area of the law.
Among the encouraging developments is the fact that some Federal Public Defenders offices are intending to take up some of these cases as their time and resources permit. The general consensus is that, among those who will be doing so, they will first look at the cases that present no eligibility issues and that present the possibility of immediate release, and they will proceed to handle those first. Then they will begin with the "easy" cases whose release dates would be further out.
This is very encouraging for those whose funds to retain private counsel are very limited. However, what is unclear is how many Federal Public Defenders office will be handling these cases, how many cases each office will be able to handle given their already very high work load, how long it will take to get around to those they actually intend to handle, and whether they will even address any of the "hard" cases, meaning those that are not very clearly eligible. Additionally, some divisions have indicated that the Judges in their districts are considering re-appointing previous court-appointed counsel in some cases to handle these motions at no charge to the inmate.
Individuals and their families who are making decisions as to whether to hire a private attorney should consider such things as whether they want a public defender or court-appointed attorney to handle their case, whether they want to wait indefinitely to see whether there is a possibility that someone out there will eventually contact the inmate to handle the case for free, and whether it would be worth the expense of hiring private counsel to handle the matter in order to avoid the possibility of a long wait, representation of an unknown quality, and possibly getting passed over altogether.
The next encouraging piece of information pertains to the number of people who may actually be eligible to seek relief under the "crack" amendment. The U.S. Sentencing Commission published a report that indicated that 19,500 individuals are eligible to seek relief retroactively. Since then, the Commission has indicated that this number is both over-inclusive and under-inclusive. What this means is that some of the peple on the "list" are actually not eligible, and others who are eligible are not on the "list". (By the way, we are now told that there are a number of unofficial lists generated by different offices, all of which are admittedly both over-inclusive and under-inclusive.) Practically, it means that there are likely a large number (perhaps additional thousands) of people who may actually be legally eligible for relief under the Amendment in the Judge's discretion, who may appar to be technically ineligible under the language of the Amendment.
Next, we are seeing a potential "back door" approach to getting remarkable reductions for certain inmates who are technically ineligible for this sentence reduction because of a mandatory minimum sentence. Critical to this is the defendant's cooperation with the Government at any point in the prosecution of his or her case OR EVEN AFTER SENTENCING. For more information on this, please see my web page on this particular topic at http://chadvancleave.statelawyers.com/?Page=3 .
Finally, and perhaps most encouraging, is the fact that without exception, defense attorneys are being exhorted to file Section 3582 motions on behalf of their clients who were designated as Career Offenders regardless of whether the enhancement affected their base offense levels, and in spite of the language of the Amendment to the contrary. The arguments in favor of this are a bit complex, but suffice it to say that I will no longer be recommending to potential clients that they shelve their hopes of seeking relief under the "crack" amendment just because they received a Career Offender enhancement. The individual should know that motions in such cases will be vigorously opposed by both the U.S. Attorney's office and the U.S. Probation office, but a good attorney will be able to help the Judge understand that he has the discretion to grant relief in such cases, and will make every effort to give the Judge the information he needs about his client to make the Judge want to exercise such discretion.
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