Some people serving prison sentences for crack cocaine offenses may be eligible for a sentence reduction, due to retroactive changes to the Sentencing Guidelines for crack cocaine. The following information will explain who might be eligible for a sentence reduction and how the process works.
The sentences for crack cocaine offenses, like those for all federal drug offenses, are governed by two sets of rules. First are the drug laws themselves - the statutes enacted by Congress. Those laws fix two things: the maximum penalty, which is the highest sentence the Judge is permitted to give, and the minimum penalty, which is the lowest sentence that Judge is permitted to give. Depending on the quantity of crack cocaine involved in the case and the defendant’s criminal record, there may be no mandatory minimum, a minimum of five years’ imprisonment, minimum of ten years’ imprisonment, a minimum of twenty years’ imprisonment or, in some very rare cases, a minimum of life imprisonment.
The second aspect of a crack cocaine sentence is the sentencing range recommended by the Sentencing Guidelines. This range usually falls somewhere between the minimum and maximum term set by Congress, and the Judge has to consider that recommendation, along with other information about the defendant and the offense, in deciding what sentence to impose.
The government agency that writes the Sentencing Guidelines, which is called the United States Sentencing Commission, occasionally reviews the Guidelines, and has the ability to both lower any Guideline that it decides is too severe, and to make that change retroactive. Retroactive means that the change to the Guideline can be applied in cases in which the defendant has already been sentenced.
In 2010, Congress made the crack statutes less severe by increasing the quantities of crack necessary to trigger the mandatory minimums. For example, until this change, a case involving five or more grams of crack carried a mandatory minimum sentence of five years’ imprisonment. In 2010, that quantity was increased - it now takes 28 grams or more to trigger a five-year mandatory minimum.
After Congress acted, the Sentencing Commission reviewed the Guidelines for crack cocaine and decided to reduce them as well. The reduced crack Guidelines went into effect on November 10, 2010. After that, the Commission also decided, effective November 1, 2011, to make the reduction in the crack Guidelines retroactive.
Not everyone convicted of a crack cocaine offense is eligible for a sentence reduction. Defendants in the following situations are ineligible for a sentence reduction:
a. Sentenced on or after November 1, 2010. These defendants were already sentenced under the new Guidelines.
b. On supervised release. The reduction only applies to defendants still serving their prison sentence, or the “halfway house” portion of the prison sentence.
c. Sentenced to the mandatory minimum. The new, lower statutory penalties are not retroactive. This means that a defendant sentenced to the applicable mandatory minimum in or before 2010 cannot receive a lower sentence, even if the Guidelines that now apply to him have been reduced.
d. Sentenced as a “career offender.” The Sentencing Guidelines treat some defendants with long criminal records as “career offenders.” In those cases, the Guideline score is generated by a separate Guideline, called the Career Offender Guideline. Since the Sentencing Commission did not retroactively change the Career Offender Guideline, defendants whose sentence was based on that Guideline, even if sentenced in a crack cocaine case, are ineligible for a reduction.
e. Case involved 8.4 kilograms or more of crack. The Sentencing Commission did not lower the Guidelines for crack cocaine offenses involving 8.4 kilograms (about 18.5 pounds) of crack or more.
Some categories of defendants might or might not be eligible for a sentence reduction depending on the particular facts of their case:
a. Cases involving crack cocaine and another drug. When a defendant is convicted of an offense involving more than one drug, the Sentencing Guidelines use a complicated formula to combine the different drugs and arrive at a single sentencing recommendation. There are some cases - usually those involving very large quantities of the drug that is not crack - where the Guidelines have not changed. But there are others - usually those where there is not a very large quantity of the other drug - where application of the formula might still result in the possibility of a lower sentence.
b. Cases where the defendant received a sentence lower than that recommended by the Sentencing Guidelines. In most, but not all, cases where (1) the defendant originally received a sentence lower than the Guideline recommendation, and (2) that sentence is lower than the reduced sentence under the amended crack Guidelines, the defendant is ineligible for a further reduction. On the other hand, if the defendant received a below-Guideline sentence originally, but that sentence is still higher than the one recommended by the amended crack Guidelines, then he might be eligible for a further reduction.
c. Cases where the defendant was sentenced for a crack cocaine offense and another offense. No matter how many offenses a defendant was convicted of, the Guidelines recommend a single sentencing range. This means that some defendants convicted of both a crack cocaine offense and something else will be eligible for a sentence reduction, while some defendants in this situation will not be.
Cases like these are among the most complicated and need to be reviewed by an attorney before a final determination as to eligibility can be made.
There is one group of defendants who are definitely eligible for a sentence reduction - those who received, and are still serving, a prison sentence that is both longer than the applicable mandatory minimum and longer than the range recommended by the newly reduced crack Guidelines.
Even where a defendant is eligible for a sentence reduction, however, a sentence reduction is not guaranteed. Eligibility simply means that the Judge can reduce the sentence if she thinks a reduction is appropriate. The Judge has to consider, in addition to the new Guideline range, any public safety concerns and the defendant’s post-sentencing conduct. Thus, if the Judge concludes that the defendant had a long and violent criminal record, or has behaved badly in prison, she might still deny a sentence reduction, even if she agrees that the defendant is eligible for one.
Eligible defendants need to request a sentence reduction from the sentencing Judge or, if that Judge is no longer on the bench, from the Judge to whom the case has been reassigned. That request can come from an attorney, from the defendant himself, or even from the Director of the Bureau of Prisons, although this rarely happens. Typically, before the Judge decides whether to grant the motion, she will want to consider a revised report from the Probation Department, and will also give the prosecution a chance to express its views.
If the Judge grants the motion, she will send a copy to the Bureau of Prisons, which will recalculate the defendant’s release date.
If she denies the motion, she will let the parties know. A defendant whose motion is denied has the right to appeal that decision, but must act promptly. He must file a form called a Notice of Appeal within fourteen days of the Judge’s decision. The Notice of Appeal is not the appeal itself, just a one-page form that lets the Court know that the defendant wishes to appeal. But, if that form is not filed within fourteen days, the defendant can permanently lose the right to appeal.
If you think that you or someone you know might be eligible for a sentence reduction, you should contact the Federal Defenders of New York. We will try to locate the available information and do what we can to help determine the defendant’s eligibility. If we can, we will also assist in preparing and filing the motion.