Overview: In 2010, Congress passed the Fair Sentencing Act (FSA) which increased the amounts of crack cocaine that triggered the mandatory minimum sentences for federal crack cocaine crimes. The effect was to lower crack cocaine sentences. The FSA also narrowed the ratio between the powder and crack cocaine offenses from 100:1 to 18:1. Under the old law, a five (5) year mandatory minimum sentence was in place for possessing with the intent to distribute 5 grams of crack or 500 grams of powder cocaine. Under the new law, 28 grams of crack and 500 grams of cocaine triggers the five (5) year minimum mandatory sentence.
Q. Will the 2011 crack cocaine guideline amendment be retroactive?
A. Yes. On June 30th, the Commission voted unanimously to make the amendment retroactive. This means approximately 12,040 federal crack offenders sentenced under the sentencing guidelines (U.S.S.G.) before November 1, 2010, may be eligible for sentence reductions.
Q. When does the retroactive crack amendment go into effect?
A. November 1, 2011
Q. How can federal prisoners serving time for crack cocaine offenses benefit from the amendment?
A. No one gets a sentence reduction automatically. A motion under 18 U.S.C. 3582©(2) must be filed in the court that sentenced the prisoner. The court will likely give the prosecutor the opportunity to oppose the reduction. The court can give all, part or none of the requested sentence reduction. There is no guarantee that any prisoner will receive a sentence reduction.
Q. Who is eligible to seek a sentence reduction based on the retroactive crack guidelines:
A. Prisoners are eligible to seek a sentence reduction if they:
- were convicted in federal court – it will not benefit people convicted in state court for state violations of crack offenses
- were convicted of a crime involving crack cocaine – it will not benefit people convicted of crimes involving other types of drugs
- were sentenced before November 1, 2010
- are serving a guideline sentence for crack cocaine – it will not benefit those serving a mandatory minimum sentence of five or ten years without any additional time under the sentencing guidelines.
- are not on supervised release
- are not in a federal halfway house – if you are already in a half-way house, you are likely to be released before the retroactive amendment goes into effect.
Q. Are career offenders eligible for sentence reductions?
A. Most likely no. Career offender sentences depend largely on the charge the person faced and the statutory maximum penalty that charge carries. A separate guideline section USSG 4B1.1 controls career offender sentences and was not reduced by this amendment.
Federal prisoners convicted for crack offenses and sentenced prior to November 1, 2010 should contact a federal criminal defense attorneyin the district where they were sentenced to see legal representation to determine if they are eligible to see relief under this retroactive crack guideline amendment.