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Stepping up Implementation of the First Step Act

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Stepping up Implementation of the First Step Act STEPPING UP IMPLEMENTATION OF THE FIRST STEP ACT Elizabeth Blackwood Counsel & Project Director, First Step Act Resource Direct, National Association of Criminal Defense Lawyers (202) 465-7665 | [email protected] Mary Price General Counsel, FAMM (202) 621-5040 | [email protected] Davina Chen National Sentencing Resource Counsel, Federal Public and Community Defenders (323) 474-6390 | [email protected] John Gleeson Partner, Debevoise & Plimpton LLP (212) 090-7281 | [email protected] NACDL’s 2020 Presidential Summit & Symposium “Prison Brake: Rethinking the Sentencing Status Quo” October 19-22, 2020 Stepping Up Implementation of the First Step Act NACDL’s 2020 Presidential Summit & Sentencing Symposium Prison Brake: Rethinking the Sentencing Status Quo Tuesday, October 20, 2020 The First Step Act (“FSA”) is a bipartisan federal criminal justice reform bill that was signed into law in December 2018. Pub. L. 115-391, 132 Stat. 5194 (2018). The law is expansive, touching on many aspects of federal sentencing. For this panel, we are focusing on sections of the FSA that may be particularly relevant for criminal defense practitioners today. We will first focus on the sentencing reform provisions of the FSA, section 401, which altered mandatory minimums for federal drug cases, and section 404, which made the Fair Sentencing Act retroactive. Other sentencing reform provisions of the FSA, which may also be discussed, include the change in the federal safety valve statute to increase eligibility for relief below mandatory minimum drug penalties (section 402) and the modification of the severe “stacking penalties” under 18 U.S.C. § 924(c) (section 403). This panel also will discuss section 603(b) of the FSA, which amended the compassionate release statute, 18 U.S.C. § 3582(c)(1)(a), to allow a defendant to file a motion for a sentence reduction directly with his or her sentencing court, where previously only the BOP could file such a motion. Sentencing Reform Provisions of the FSA: Drug Recidivism Penalties, section 401: The FSA reduces mandatory minimum penalties for federal drug offenses under 21 U.S.C. §§ 841(b)(1)(A), (b)(1)(b) and 21 U.S.C. §§ 960(b)(1) and (b)(2). The FSA also changes the definitions for prior convictions under 21 U.S.C. § 851 that enhance statutory drug penalties. The defendant’s prior convictions must now meet the new definitions of “serious drug felony” or “serious violent felony.” See First Step Act, Sections 401-404, Summary of Changes (“Summary”), at 1-3; see also SRC First Step Act Overview PowerPoint (“SRC Powerpoint”), slides 3-23. Safety Valve, section 402: The FSA expands the criteria for the federal drug safety valve under 18 U.S.C. § 3553(f), increasing eligibility for relief below mandatory minimum penalties for drug cases. Specifically, the FSA now applies not only to federal drug offenses but also to drug cases under the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503, 70506. The FSA also extended safety valve eligibility to defendants who have up to four criminal history points, excluding any criminal history points resulting from a 1-point offense. Defendants who have a 3-point or 2-point violent offense are excluded from eligibility, regardless of their criminal history score. But see United States v. Diaz, 18CR1550 1 (S.D. Cal.) (finding safety valve statute in the conjunctive rather than disjunctive; on government appeal); see also United States v. Garcon, 9:19CR80081 (S.D. Fla.); United States v. Lopez, 19CR261 (S.D. Cal.) (same). A “violent offense” is a “crime of violence, as defined by 18 U.S.C. § 16, that is punishable by imprisonment.” See Summary, at 5-6; SRC PowerPoint, slides 24-31. Notably, the FSA did not change the safety valve guideline under § 5C1.2 of the United States Sentencing Guidelines Manual, which previously mirrored the statutory language of section § 3553(f). If the defendant met the criteria in § 5C1.2, then §§ 2D1.1(b)(18) (Drug Trafficking) and 2D1.11(b)(6)(Listed Chemicals) provided for a two-level reduction in the guideline offense level. Because the FSA made no changes to this guideline, the two-level reduction can only apply if the defendant meets the old statutory safety valve criteria still listed at § 5C1.2. A defendant who meets only the post-FSA expanded safety valve criteria must ask the court for a 2-level variance to receive this reduction. Section 924(c) Stacking, section 403: Section 924(c) prohibits using or carrying a firearm during and in relation to, or possessing a firearm in furtherance of, a “crime of violence” or “drug trafficking crime. The statute prescribes a mandatory minimum penalty of at least five years of imprisonment, with increasingly longer penalties based on how the firearm was used (seven years if the firearm was brandished and ten years if the firearm was discharged). The FSA limits the “stacking” of the 25-year penalty imposed under 18 U.S.C. § 924(c) for multiple offenses that involve using, carrying, possessing, brandishing, or discharging a firearm in furtherance of a crime of violence or drug trafficking offense. The 25-year mandatory minimum sentence can still apply if a defendant is convicted of a § 924(c) offense after a prior § 924(c) conviction has become final. See Summary, at 7; SRC PowerPoint, slides 32-34. Crack Retroactivity, section 404: The Fair Sentencing Act, made effective on August 3, 2010, increased the quantity of crack cocaine that triggered mandatory minimum penalties under the federal drug statute. Prisoners sentenced before August 3, 2010, who did not otherwise receive the benefit of the statutory penalty changes made by the Act, are eligible under section 404 of the FSA for a sentence reduction. See Summary, at 8; SRC PowerPoint, slides at 35-36. In the year since the FSA was passed, sentences for 2,387 defendants were reduced by an average of six years due to motions filed under section 404. See USSG, The First Step Act of 2019: One Year of Implementation (“USSG One Year Update”) (Aug. 2020), https://bit.ly/33cvKKi. Federal Defender offices have generally been appointed on all section 404 matters in their district. Defendants seeking section 404 relief out of the SDGA 2 and the EDKY, which do not have Federal Defender offices, should contact NACDL to secure pro bono counsel ([email protected]). Compassionate release, section 603(b): Section 603(b) of the FSA significantly changed the process for a defendant to seek a reduction in sentence under 18 U.S.C. § 3582. Prior to the FSA, only the BOP could file a compassionate release motion on a prisoner’s behalf but rarely did so. From 2006 to 2011, an average of only 24 prisoners were released each year through BOP-filed motions. Dep’t of Justice, Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate Release Program (April 2013), at 1, https://bit.ly/2S3Apb3. To increase the use and transparency of compassionate release, Congress enacted section 603 of the FSA, to authorize courts to modify a term of imprisonment “upon motion of the defendant.” 18 U.S.C. § 3581(c)(1)(A). In the year since the FSA was enacted, 145 prisoners were granted release. See USSG One Year Update. As of September 28, 2020, that number had increased to 1,661 prisoners released, due in large part to the COVID-19 pandemic. See BOP, First Step Act, https://bit.ly/30wYJ9Z. Before filing a motion with the district court, the statute requires that the prisoner first make a compassionate release request to the warden of his or her prison. Under the statute, a sentencing court may reduce a defendant’s sentence upon their motion “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A). Most courts have interpreted this language to mean that, 30 days after the prisoner makes his request to the warden, the court can rule on the compassionate release motion. See, e.g, United States v. Alam, 960 F.3d 831, 834 (6th Cir. 2020) (“Prisoners who seek compassionate release have the option to take their claim to federal court within 30 days, no matter the appeals available to them.”); see also SRC 3 ½ pages on 3 ways to get into Court for Compassionate Release; NACDL Everything You Wanted To Know about Compassionate Release in the Age of COVID-19 (But Didn’t Know To Ask) PowerPoint (“NACDL Powerpoint”), slides 24-33. The statutory requirements for a sentence reduction under section 3582, as amended by FSA, are that the court find (1) “extraordinary and compelling reasons” for the reduction, (2) ensure any reduction is consistent with applicable policy statements, and (3) consider the relevant sentencing factors under section 3553(a). 18 U.S.C. § 3582(c)(1)(A). See NACDL PowerPoint, slides 7-9. Extraordinary and compelling reasons are not defined in the statute, but examples are given in the notes of the policy statement found in U.S.S.G. § 1B1.13. The examples fall into four categories based on a defendant’s (1) terminal illness, 3 (2) serious physical or mental health illness, (3) advanced age and deteriorating health, or (4) compelling family circumstances. See U.S.S.G. § 1B1.13 comment n.1(A)–(C). There is also a catch-all provision for “extraordinary and compelling reason[s] other than, or in combination with” the other reasons, as determined by the Director of the BOP.
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