RETROACTIVITY OF THE FSA CRACK GUIDELINE AMENDMENT Laura S. Wasco Research & Writing Attorney

Introduction  August 3, 2010 – Fair Sentencing Act of 2010 (FSA)  The FSA set the crack to powder ratio at approximately 18-to-1  FSA Statutory Penalty Changes  28 gm crack – 5 year mandatory minimum (instead of 5 gm)  280 gm crack – 10 year mandatory minimum (instead of 50 gm)  Note – Retroactivity of a Guideline Amendment does not affect the retroactivity of a statutory penalty.  November 1, FSA Guideline amendments became effective  The FSA Guideline Amendment becomes retroactive on November 1, 2011  FSA Amendment 750 – only parts A and C are retroactive  Part A – changes the drug quantity table for crack cocaine  Part B – adds aggravating and mitigating factors to the drug trafficking guideline  Part C - eliminates simple possession of crack cocaine cross reference in 2D2.1(b)

Amendments to Drug Quantity Table Offense LevelNew Crack Quantity (effective 11/1/10) Old Crack Quantity (pre-11/1/10) 38≥ 8.4 kg≥ 4.5 kg 36≥ 2.8 kg≥ 1.5 kg 34≥ 840 gm≥ 500 gm 32≥ 280 gm≥ 150 gm 30≥ 196 gm≥ 50 gm 28≥ 112 gm≥ 35 gm 26≥ 28 gm≥ 20 gm 24≥ 22.4 gm≥ 5 gm 22≥ 16.8 gm≥ 4 gm 20≥ 11.2 gm≥ 3 gm 18≥ 5.6 gm≥ 2 gm 16≥ 2.8 gm≥ 1 gm

Amendments to Drug Quantity Table (con’t)  Note that some base offense levels under the 2011 Guideline Amendments are the same as under the 2010 Guideline Amendments Base Offense LevelCrack Quantities with no Changes to BOL kg or more kg to 4.49 kg gm to 1.49 kg gm to gm 2628 gm to 34.9 gm

Standing Order  On September 26, 2011, a Standing Order was issued that appoints the Federal Public Defender to represent those who may be eligible  “Pursuant to the provisions of the Criminal Justice Act, Title 18, USC §§ 3006A(a)(1) and (c), the Office of Federal Public Defender for the Eastern District of North Carolina is hereby appointed to represent any defendant previously determined to have been entitled to appointment of counsel or who is now indigent or files a motion seeking relief, or whose name appears on lists supplied by the United States Sentencing Commission or the Administrative Office of the U.S. Courts, to determine whether that defendant may qualify to seek reduction of sentence and to present any motions or applications for reduction of sentence in accordance with the revised base offense levels for crack cocaine, USSG §§ 2D1.1, and 18 U.S.C. § 3582(c)(2). This appointment is limited to cases affected or potentially affected by this retroactive amendment and, except upon motion of counsel and approval by the court, will terminate upon the district court's ruling on the merits of the defendant's § 3582(c) motion or, if this ruling is appealed, upon completion of the appellate process.”  The FPD will attempt to keep as many cases as possible; however, some cases will likely have to be sent to the panel

The Plan for EDNC  FPD is appointed pursuant to Standing Order  Cases reviewed and processed with priority given to earliest projected release dates  PSR, Judgment, and SOR provided to FPD and USA, upon request. Exception - documents previously provided are to be retrieved from each counsel’s internal document storage systems.  FPD provides notice to USA, Clerk’s Office, and USPO when panel counsel is appointed. Panel counsel must immediately file a Notice of Appearance.  If defendant is eligible, motion is filed under the event “Reduce Sentence re: Crack Cocaine Offense - 18 to 1.” A supplemental motion is filed if the defendant previously filed a pro se motion. If the USPO determines that the defendant is eligible, USPO sends a Resentencing Report and Acknowledgment form to counsel within 7 days of motion being filed.

The Plan for EDNC (con’t)  If the defendant is not eligible, and has not filed a pro se motion, a motion to withdraw under the event “Withdraw as Attorney – Crack Retro” is filed. If no pro se motion is filed, no further action is taken.  If the defendant is not eligible, and has filed a pro se motion, FPD or panel attorney must notify Dee Davis that the client’s pro se case is ripe for review. This will provide USPO time to process the case and issue notice of reason for ineligibility with an Acknowledgment form. After the Acknowledgment form is sent back to the USPO, a motion to withdraw under the event “Withdraw as Attorney – Crack Retro” is filed.  Within 7 days of receipt of Acknowledgment form, counsel responds by returning completed Acknowledgment, with copy to opposing counsel.  Signed Acknowledgments, Resentencing Report (if eligible), and proposed Judgment (with reason for denial if recommended) are forwarded to Court.  If a hearing is desired, counsel must include a request in the Acknowledgment. Defendant’s presence is not required, with or without hearing.  If additional time is needed by either party or the USPO, notice is sent to opposing counsel and USPO stating reason and anticipated completion time.

Overview of Case Load  EDNC has 4 th highest case load for FSA Crack Retro cases  2011 USSC list has 374 potentially eligible offenders  Compare: 2008 USSC list had 378 potentially eligible offenders – FPD reviewed over 1200 cases (filed 603 motions with the court were granted)  USPO estimates over 600 additional crack cases between March 3, 2008 and August 3, 2010

Relevant Statutes, Guidelines, Case Law, and Rules Applicable to Retroactivity  28 U.S.C. § 994(u)  18 U.S.C. § 3582(c)(2)  U.S.S.C. § 1B1.10  Dillon v. United States, 130 S.Ct (2010)  Fed. R. Crim. P. 43(b)(4)

Statutes  28 U.S.C. § 994(u)  “If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.”  18 U.S.C. § 3582(c)(2)  “[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant…the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”

U.S.S.C. § 1B1.10 (policy statement)  The policy statement  Implements 28 U.S.C. § 994(u)  Provides guidance and limitations for the court when considering a motion under § 3582(c)(2)  Adds Amendment 750 (Parts A and C)  Addresses an application issue about what constitutes the “applicable guidelines range” for § 1B1.10  Notes that a court must use the version of § 1B1.10 in effect on the date it reduces the term of imprisonment pursuant to § 3582(c)(2)  Incorporates Supreme Court case law

Changes to 1B1.10  Two major adverse changes to note:  1 – The court may not reduce a defendant’s term of imprisonment to a term that is less than the minimum of the amended guidelines range except for a substantial assistance departure (i.e. no longer eligible if received variance or other departure)  2 – Definition of “applicable guideline range” prevents rare career offenders who received departure or variance from obtaining relief  One beneficial change to note:  Definition of “applicable guideline range” is defined as “offense level and criminal history category determined pursuant to § 1B1.1(a), which is determined before any departure provision in the Guidelines Manual or any variance”  Under 1B1.1(a), the “offense level” and “criminal history category” are determined in steps 1 through 6 (not at step 8, when § 5G1.1 applies)  If a defendant was sentenced “based on” that “applicable guideline range” by way of a § 3553(e) departure from a mandatory minimum, he is eligible

Supreme Court Law & Federal Rules  Dillon v. United States, 130 S.Ct (2010)  Given the limited scope and purpose of hearings under § 3582(c)(2), the interests identified in Booker are not implicated  Courts are bound by the § 1B1.10 policy statement  “18 U.S.C. § 3582(c)(2) does not authorize a resentencing. Instead, it permits a sentence reduction within the narrow bounds established by the U.S. Sentencing Commission.”  Fed. R. Crim. P. 43(b)(4)  “A defendant need not be present under any of the following circumstances…(4) Sentence Correction. The proceeding involves the correction or reduction of sentence under …18 U.S.C. § 3582(c).”

General Eligibility  U.S.S.G. § 1B1.10(a)(1) and App. Note 1(A)  1. Defendant is serving the term of imprisonment  The term of imprisonment must be imposed as part of the original sentence, not a term of imprisonment being served upon revocation of supervised release (App. Note 5(A)).  2. The guideline range applicable to the defendant has subsequently been lowered as a result of a listed amendment  3. The amendment is listed in § 1B1.10(c)

General Ineligibility  A listed amendment may not always lower the defendant’s applicable guideline range  Statutory provision (mandatory minimum in excess of applicable guideline range - § 5G1.1(b))  Override by another guideline (CO* or ACC)  * We continue to research this issue to see if there is any plausible argument to be made for eligibility  Quantity of crack is 8.4 kg or greater  Quantity of crack results in the same BOL  Original BOL was 12

Extent of Permissible Reduction  U.S.S.G. § 1B1.10(b)(2)(C)  “In no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served.”  U.S.S.G. § § 1B1.10(b)(2)(A) & (B)  “[T]he court shall not reduce the defendant’s term of imprisonment…to a term that is less than the minimum of the amended guideline range….”  EXCEPTION – “If the term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the defendant’s substantial assistance to authorities, a reduction comparably less than the amended guideline range…may be appropriate.”  This exception does not include a previous sentence pursuant to a departure or variance other than substantial assistance. U.S.S.G. § § 1B1.10 App. Notes (1)(A) & (3)  BUT, remember, because of the new definition of “applicable guideline range,” a defendant who was sentenced “based on” that “applicable guideline range” by way of a § 3553(e) departure from a mandatory minimum is eligible

Factors the Court Considers in Determining if a Reduction is Warranted  Under § 1B1.10 App. Note (B)  Court shall consider 18 U.S.C. § 3553(a) factors  Court shall consider the nature and seriousness of the danger that may be posed to any person or community  Court may consider post-sentencing conduct of the defendant

For More Information  Main Contact:  Laura S. Wasco –  Vidalia V. Patterson – (through  Phone:  Updates may be provided through the Zealous Advocate newsletter (on our website) as well as s sent by Donna Stiles  FPD EDNC website – nce.fd.org  U.S.S.C. website –  Helpline –