1. 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.

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

3. The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act

4. The FIRST STEP Act’s Purpose?

5. 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

6. Title I: Recidivism reduction

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

8. 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.

9. Title iv: sentencing reforms

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

11. 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)

12. 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)

13. Section 401: Alters OFFENSES That Trigger Enhancements
SERIOUS DRUG FELONY
An offense prohibited by 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 U.S.C. § 3559(c)(2) or 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.

14. 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 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.

15. 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.

16. 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
( )
Mandatory Minimum = 15 years
( )

17. 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

18. 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 .

19. 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.

20. NDTX First Step Act Questionnaire

21. 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.

22. Title VI: Miscellaneous

23. 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.

24. 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

25. First step act: resources

26. Looking for FIRST STEP Act Resources?
Look at the CLE Page for links me: