A brief overview of the Act’s impact on federal criminal defendants. The first step act A brief overview of the Act’s impact on federal criminal defendants.

Enacted with bipartisan support. Signed into law December 21, 2018

The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act

The FIRST STEP Act’s Purpose?

FIRST STEP ACT PROVISIONS: SIX PARTS Title I Recidivism Reduction Title II Lieutenant Osvaldo Albarati Correctional Officer Self-Protection Act of 2018 Title III Restraints on Pregnant Prisoners Prohibited Title IV Sentencing Reform Title V Second Chance Act of 2007 Reauthorized Title VI Miscellaneous

Title I: Recidivism reduction

Section 102: Affecting GOOD TIME Calculations 54 days per year. Retroactive.

Section 102: Creating EARNED TIME Credits Some prisoners can earn time toward early transfer to halfway house, home confinement, or supervised release. Rewards participation in rehabilitative programming and “productive activities.” Depending on their assessed risk levels, defendants can earn up to 15 days per 30 days of programming and activities completed. Many prisoners are not eligible: Depending on the offense of conviction. Non-citizens with immigration detainers.

Title iv: sentencing reforms

Section IV Resource: U.S.S.C. Insider Express

Section 401: Changes Some Enhanced Sentence LENGTHS Statute Enhanced Sentence Length BEFORE the FIRST STEP Act AFTER the FIRST STEP Act 21 U.S.C. § 841(b)(1)(A) 20-year mandatory minimum with one triggering offense Mandatory LIFE with two triggering offenses 15-year mandatory minimum with one triggering offense 25-year mandatory minimum with two triggering offenses § 960(b)(1)

Section 401: Alters OFFENSES That Trigger Enhancements Statute Triggering Offense BEFORE the FIRST STEP Act Triggering Offenses AFTER the FIRST STEP Act 21 U.S.C. § 841(b)(1)(A) FELONY DRUG OFFENSE SERIOUS DRUG FELONY Or SERIOUS VIOLENT FELONY 21 U.S.C. § 841(b)(1)(B) 21 U.S.C. § 960(b)(1) 21 U.S.C. § 960(b)(2)

Section 401: Alters OFFENSES That Trigger Enhancements SERIOUS DRUG FELONY An offense prohibited by 18 U.S.C. § 924(e)(2)(A). Defendant served term of imprisonment for more than 12 months. Released from that imprisonment within 15 years of the current federal offense. Offense’s maximum imprisonment is ≥ 10 years. SERIOUS VIOLENT FELONY An offense prohibited by 18 U.S.C. § 3559(c)(2) or 18 U.S.C. § 113. Defendant served term of imprisonment for more than 12 months. Released from that imprisonment within 15 years of the current federal offense. Offense’s maximum imprisonment is ≥ 10 years.

Section 402: Changes the Statutory Safety Valve Provision 18 U.S.C. § 3553(f): Removes statutory mandatory minimums for certain offenders. Old Provision New Provision Defendant could not have more than 1 criminal history point before applying § 4A1.3. Defendant does not have: More than 4 criminal history points (EXCLUDING 1-point offenses); Any prior 3-point offenses; or Any prior 2-point violent offenses.

Section 402: Changes the Statutory Safety Valve Provision The FIRST STEP Act changed the safety valve statute BUT… The Sentencing Guidelines remain the same in USSG § 5C1.2. Under the Guidelines, to get the 2-point reduction, 2D1.1(b)(18) still refers to 5C1.2 (and the old statutory language) The court can follow the new statutory language, but only as a variance.

Section 403: Clarifies the 924(c) Penalty In cases where multiple (first) 924(c) counts of conviction in the same indictment. 5-year mandatory minimums for each. 924(c) Counts in an Indictment BEFORE the FIRST STEP Act AFTER the FIRST STEP Act 1 count Mandatory minimum = 5 years Mandatory Minimum = 5 years 2 counts Mandatory minimum = 30 years (5 for first + 25 for second) Mandatory Minimum = 10 years (5 for first + 5 for second) 3 counts Mandatory minimum = 55 years (5 + 25 + 25) Mandatory Minimum = 15 years (5 + 5 + 5)

Section 404: Makes Retroactive the Fair Sentencing Act Key Changes under the Fair Sentencing Act: Changed the amounts triggering mandatory minimums/maximums for crack cocaine offenses under 21 U.S.C. § 841(b)(1) and 21 U.S.C. § 960(b). Removed the mandatory minimum for simple possession of crack cocaine under 21 U.S.C. § 844. Amounts triggering Mandatory minimums BEFORE Statutory Minimums AFTER 5 grams 50 grams 21 U.S.C. § 841 / § 960 5-year min – 40-year max 10-year min – Life max 28 grams 280 grams

Section 404: Makes Retroactive the Fair Sentencing Act Eligibility: Sentenced before the Fair Sentencing Act’s effective date—August 3, 2010. Sentenced under: 21 U.S.C. § 841(b)(1)(A)(iii) [50 grams or more] 21 U.S.C. § 841(b)(1)(B)(iii) [5 grams up to 50 grams] 21 U.S.C. § 844 [simple possession] Has not received the benefit of a sentence reduction under the Fair Sentencing Act. Has not previously been denied a prior motion under the FIRST STEP Act .

Section 404: Practice Tips In advocating for a new sentence under the FIRST STEP Act: Check eligibility carefully. Review prior motions for sentence reductions, including reasons for those motions being granted or denied. Advocate for the best sentence possible. Compare the changed perception of the offense over time. Note changes to the Sentencing Guidelines. Base offense level changes? Adjustments to CHC calculations? Address any beneficial statutory changes. Discuss relevant intervening case law.

NDTX First Step Act Questionnaire

Section I Additional Resources: FAMM Publications “Frequently Asked Questions on the First Step Act, S. 756” Published AFTER the law was signed into effect. GOOD TIME v. EARNED TIME discussion “Summary: First Step Act, S. 756 (115th Congress, 2018)” Published BEFORE enactment. Gives details about defendants who are INELIGIBLE for earned time credits.

Title VI: Miscellaneous

Section 603(b): Modifying Compassionate Release Key change: Allows a modification of a defendant’s term ON MOTION OF THE DEFENDANT Prerequisites: Motion permitted AFTER: The defendant has fully exhausted all administrative rights to appeal the BOP’s failure to bring a motion; OR the lapse of 30 days after the warden of the defendant’s facility receives such a request.

Section VI Resources: On Compassionate Release FAMM’s “Compassionate Release and the First Step: Then and Now” Published AFTER the FIRST STEP Act went into effect. Good overview of the Compassionate Release under both the Sentencing Guidelines and the BOP. See also: USSG § 1B1.13 BOP Program Statement 5050.50

First step act: resources

Looking for FIRST STEP Act Resources? Look at the CLE Page for links Email me: adam_nicholson@fd.org