Transcript The Plan for EDNC (con’t)

RETROACTIVITY OF THE FSA
CRACK GUIDELINE AMENDMENT
Laura S. Wasco
Research & Writing Attorney
Introduction
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August 3, 2010 – Fair Sentencing Act of 2010 (FSA)
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The FSA set the crack to powder ratio at approximately 18-to-1
FSA Statutory Penalty Changes
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28 gm crack – 5 year mandatory minimum (instead of 5 gm)
280 gm crack – 10 year mandatory minimum (instead of 50 gm)
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November 1, 2010 - FSA Guideline amendments became effective
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Note – Retroactivity of a Guideline Amendment does not affect the retroactivity of a statutory
penalty.
The FSA Guideline Amendment becomes retroactive on November 1, 2011
FSA Amendment 750 – only parts A and C are retroactive
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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 Level
New 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)
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Note that some base offense levels under the 2011
Guideline Amendments are the same as under the 2010
Guideline Amendments
Base Offense Level
Crack Quantities with no
Changes to BOL
38
8.4 kg or more
36
2.8 kg to 4.49 kg
34
840 gm to 1.49 kg
32
280 gm to 499.9 gm
26
28 gm to 34.9 gm
Standing Order
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On September 26, 2011, a Standing Order was issued that appoints
the Federal Public Defender to represent those who may be eligible
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“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
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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)
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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
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EDNC has 4th highest case load for FSA Crack Retro cases
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2011 USSC list has 374 potentially eligible offenders
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Compare: 2008 USSC list had 378 potentially eligible offenders
– FPD reviewed over 1200 cases (filed 603 motions with the
court - 432 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
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28 U.S.C. § 994(u)
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18 U.S.C. § 3582(c)(2)
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U.S.S.C. § 1B1.10
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Dillon v. United States, 130
S.Ct. 2683 (2010)
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Fed. R. Crim. P. 43(b)(4)
Statutes
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28 U.S.C. § 994(u)
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“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)
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“[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)
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The policy statement
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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
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Two major adverse changes to note:
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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:
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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”
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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
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Dillon v. United States, 130 S.Ct. 2683 (2010)
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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
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“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)
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“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
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U.S.S.G. § 1B1.10(a)(1) and App. Note 1(A)
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1. Defendant is serving the term of imprisonment
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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
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A listed amendment may not always lower the defendant’s
applicable guideline range
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Statutory provision (mandatory minimum in excess of
applicable guideline range - § 5G1.1(b))
Override by another guideline (CO* or ACC)
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* 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
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U.S.S.G. § 1B1.10(b)(2)(C)
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“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)
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“[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.”
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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
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Under § 1B1.10 App. Note (B)
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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
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Main Contact:
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Updates may be provided through the Zealous Advocate
newsletter (on our website) as well as emails sent by
Donna Stiles
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Laura S. Wasco – [email protected]
Vidalia V. Patterson – [email protected] (through
December)
Phone: 919-856-4236
FPD EDNC website – nce.fd.org
U.S.S.C. website – www.ussc.gov
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Helpline – 202-502-4545