Preparing Motions for Reduced Sentences and Early Release of Federal Drug Trafficking Offenders Where the New Guideline Range is Lower than the Actual Sentence

In July 2014 the United States Sentencing Commission decided to retroactively apply a reduction to the sentencing guideline levels for most federal drug trafficking offenders. The motivation for this was to reduce prison costs and populations which currently exceed capacity by more than 30%.

The Commission amended the Sentencing Guidelines to lower the base offense levels in the Drug Quantity Table, U.S.S.G. §2D1.1, by two levels which should lower sentences for most drug offenses. It is predicted that this will cause the review of over 46,000 convictions. Individual prisoners will be eligible for an average sentence reduction of more than 18%.

Reduced Sentences Eligibility Criteria

Eligibility criteria include that the defendant was sentenced under §2D for a drug offense; that the defendant’s guideline range changed as a result of the amendment; that the defendant’s actual sentence is higher than the new guideline; and that the defendant’s release date is after November 1, 2015.

Cases Excluded from Reduced Sentences

Cases excluded from reduction of sentence include:

1. Anyone who would stay at Offense Level 38 or Offense Level 12 (because range does not change);
2. Anyone whose actual sentence is lower than the new guideline range;
3. Anyone sentenced under Career Offender Guideline or another guideline that exceeds the §2D1.1 range;
4. Anyone stuck at the Mandatory Minimum Sentence because he did not get a reduction for substantial assistance;
5. Anyone who received a variance or departure for reasons other than §5K and who already received a sentence below the amended range;
6. Anyone for whom the Commission does not have full documentation.

This list does not account for people who received a sentence reduction pursuant to Criminal Rule 35.

Reduced Sentences Effective Date

Reduced sentences cannot take effect before November 2015. The time delay is to give Prosecutors a chance to review the cases and object to release where they believe a reduced sentence would pose too great a risk to public safety. It will also give the Probation Department time to prepare to supervise those released.

Judicial Review

A judge must review each case to determine whether reducing a sentence creates a risk to public safety or whether any other consideration should prevent a reduced sentence.

Preparing a Motion for Reduced Sentence

When preparing a motion for reduced sentence, first obtain the new guideline range by reducing the range two levels below the guideline range adopted by the court in the Statement of Reasons attachment to the Criminal Judgment. If the actual sentence imposed is greater than the new guideline range, the government may stipulate to a reduced sentence under the new range. If they still oppose reduction of sentence for public safety reasons, consult the Presentence Report and sentencing memos of the parties for factors under 18 U.S.C. §3553 that may be used to support release.

Citation

18 U.S.C. §3583(c)(2) and Sentencing Guidelines Amendment 782 and General Order 05-14 for the Ninth Circuit.

Contact James Feldman Law

Are you or a loved one in prison for a federal drug trafficking offense? Learn whether you or your loved one is eligible for a reduced sentence and early release. Call James Feldman Law today at (253) 759-4555.