July 18, 2014: Retroactivity – Now the Hard Part Begins

prisoner140718The United States Sentencing Commission has decided its April 2014 amendment reducing the base offense level for drug offenses by an average of 2 levels should be made retroactive to all Federal prisoners now serving time for drug offenses.

The change could affect about 46,300 offenders, about one out of five inmates now serving Federal sentences.

 The reduction isn’t automatic.  Rather, the Commission’s designation of the amendment as retroactive triggers a prisoner’s right to file a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2).  If the inmate’s drug quantity is affected by the retroactive amendment – and that’s not always a given – the sentencing judge may (and we emphasize “may”) reduce the sentence to anywhere within the new sentencing range.

In deciding a § 3582(c)(2) motion, the court considers the inmate’s conduct since he or she was locked up, whether the public safety might be compromised if the inmate is released early, and all of the same factors on history, the nature of the offense, respect for law and order, and so on and so on listed in 18 U.S.C. § 3553(a).

Several notes of caution:

First, this is for drug defendants only.  You got 63 months for tax evasion?  Tough luck to you.

Second, if you have a nondrug count with a concurrent sentence of the same length, this doesn’t help you, either.  Let’s say you got 168 months for a marijuana grow operation and a concurrent 168 months for being a felon in possession of a firearm.  A § 3582(c)(2) motion won’t be much help, because while it might drop the drug sentence, you would still have 168 months to do on the gun charge.

Third, even if you are eligible for the reduction, the sentencing judge may decide to grant the motion or to deny the motion at his or her whim.  If the motion is granted, how much of a reduction to grant is equally at the judge’s caprice.  Whatever the judge decides is unappealable.  In other words, pro se prisoner filers, remember all those choice words you had about the judge’s lineage?  Oops …

Fourth, while we’re recalling our last visit to the judge’s courtroom, recall all of those complaints you had about the Guideline enhancements the Government was trying to hang around your neck?  You can’t use the § 3582(c)(2) motion to plow that ground again.  The Guidelines say that the court has to assume everything about your Guidelines is correct except for applying the retroactive reduction. 

Fifth, here’s another limitation.  If you have a statutory minimum sentence – such as five years minimum for a kilo of cocaine – the court cannot that minimum.  Say your Guidelines were 70-87 months, but the retroactive amendment drops those to 57-71 months.  If your mandatory minimum sentence is 60 months, the judge cannot drop you below 60 months, no matter what the floor of the new Guidelines range might be.

We’re not naysayers here.  Most of the eligible § 3582(c)(2) filers get relief from their judges, and – as an old law partner used to say – you never know what’s under the rock until you turn it over.  The one thing we know for sure: the worst a court can do is deny your § 3582(c)(2) motion.  You can’t get more time for filing it.

We recommend you hold on for a bit until matters are clarified as to when you may file.  We know that no sentence reduction will be effective before November 1, 2015, but no one has yet said how soon you may file.  Be warned: most courts don’t take the motions in the order in which they’re filed.  Instead, they consider the motions in the order in which inmates are likely to be released.  If your “out” date is January 2016, you’re going to get much faster service than the guy who – even with a time cut – won’t hit the streets until next decade.

One final caveat:  Congress could refuse to approve the retroactivity.  Those people can’t even agree on a new highway bill.  The likelihood that Majority Leader Harry “Vote-on-Nothing” Reid would bring the retroactivity amendment to a vote in the Senate is about the same as the chances President Obama will sent Sarah Palin a Christmas card.

Retroactivity is a win.  But there’s many a slip twixt cup and lip.  You only get one chance to do it right.

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