A sentencing reform bill was introduced last night to provide for programs to help reduce the risk that prisoners will recidivate upon release from prison, and for other purposes. It’s limited, but will affect some clients. Trump has agreed to sign it, and there appear to be more than enough votes to pass it, but it depends on whether McConnell brings it to a vote.
The bill also includes great compassionate release section, and an improved but still problematic prison reform section, among other things. The bill is attached.
It may pass during the lame duck session, which ends sometime in January. If it doesn’t, anything could happen thereafter.
I want to alert you just to the sentencing changes so you can delay sentencing and plea bargains for affected clients at least until late January.
1) 851s
Reduces MM under 841(b)(1)(A) and 960(b)(1) for one “serious drug felony” from 20 to 15 years. Reduces MM under 841(b)(1)(A) for two “serious drug felonies” from life to 25 years. (not retroactive)
New penalty: same penalties apply to one or two prior “serious violent felonies.” Nothing about “serious violent felonies” is added to 841(b)(1)(B) or 960(b)(2).
“Serious drug felony” = offense described in 924(e)(2) + served term of imprisonment more than 12 months + was released from that term within 15 years of commencement of instant offense
“Serious violent felony” = offense described in 3559(c)(2)–which includes a residual clause and you should try to read in the limitations/affirmative defenses on robbery and arson in (c)(3)–or any assault that would be a felony violation of 18 USC 113 if committed in the special maritime and territorial jurisdiction + served term of imprisonment more than 12 months (no staleness limit)
2) 924(c)s
Eliminates stacking by requiring a prior conviction. (not retroactive)
3) Fair Sentencing Act
Makes it retroactive
4) Safety Valve
Would now look like this with changes struck and underlined, and would apply only to a conviction entered on or after the date of enactment:
(f) Limitation on applicability of statutory minimums in certain cases.–Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846), or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963, or section 70503 or 70506 of title 46), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that–
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, s determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines;
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.
(g) Inadequacy of Criminal History.―
(1) IN GENERAL.—If subsection (f) does not apply to a defendant because the defendant does not meet the requirements described in subsection (f)(1) (relating to criminal history), the court may, upon prior notice to the Government, Iit’s subsection (f)(1) if the court specifies in writing the specific reasons why reliable information indicates that excluding the defendant pursuant to subsection (f)(1) substantially overrepresents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.
(2) PROHIBITION.—This subsection shall not apply to any defendant who has been convicted of a serious drug felony or a serious violent felony, as those terms are defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).
(h) DEFINITION OF VIOLENT OFFENSE.—As used in this section, the term ‘violent offense’ means a crime of violence, as defined in section 16, that is punishable by imprisonment.