How the FIRST STEP Act changes Federal Criminal Sentencing

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Quick Summary of the FIRST STEP Act

I. Proposed Changes to 21 U.S.C. § 851

Effective Date: This proposed legislation is NOT retroactive. It will apply to persons who are sentenced AFTER the date of
enactment. Thus, a motion to continue the sentencing would benefit a client who is sentenced AFTER the bill is enacted.

Enhanced Penalties Reduced: The penalty for violating 21 U.S.C. § 841(b)(1)(A) is 10 years to Life, unless the government files a notice
under 21 U.S.C. § 851 based on 1 or more qualifying prior convictions. The proposed legislation will reduce the enhanced penalties under
§ 841(b)(1)(A).

  • The enhanced mandatory minimum will be reduced to 25 years (currently it is mandatory Life) if a § 851 notice listing 2 prior predicate convictions is filed.
  • The enhanced mandatory minimum will be reduced to 15 years (currently it is 20 years) if a § 851 notice listing 1 prior predicate conviction is filed.
  • There are NO changes to the enhanced penalties for § 841(b)(1)(B) or (b)(1)(C).

Prior Drug Convictions Redefined:

The proposed legislation will limit the types of prior drug convictions that qualify as § 851 predicates,
in that the prior drug offense must meet certain criteria.  

  • Instead of allowing enhancement based on any prior “felony drug offense,” the prior offense must be a “serious drug felony” — which has the same definition as “serious drug offense” under the ACCA, i.e., the prior drug offense must have had a maximum statutory penalty of 10 years of more. So Florida’s third degree drug felonies will no longer qualify as § 851 predicates.
  • The prior “serious drug felony” must involve more than mere possessionor purchase of drugs.
  • The defendant must have served more than one year of incarceration on the prior “serious drug felony” conviction.
  • The defendant must have been released from incarceration on the prior “serious drug felony” conviction within 15 years of the commission of the instant offense. (Under current law, there is no time limit for counting a prior felony drug conviction.).

Prior Violent Felony Convictions:

The downside to the proposed § 851 legislation is that prior violent felony convictions would count as prior predicates. (Under current law, only prior felony drug convictions count). A defendant currently charged will have a likely successful ex post facto claim, which would prohibit the government from filing a § 851 notice based on a prior “violent felony” conviction to enhance the penalty for the current
§ 841(b)(1)(A) offense that is committed before the effective date of the new legislation.

II. Proposed Changes to 18 USC § 924(c)

Effective Date: This proposed legislation is NOT retroactive. It will, however, apply to persons who are sentenced AFTER the date
of enactment. A motion to continue the sentencing, therefore, would benefit a client who is sentenced AFTER the bill is enacted.

Stacking: This proposed legislation will totally eliminate the 25-year consecutive provision of § 924(c), UNLESS the defendant has a final
prior § 924(c) conviction, i.e., a defendant has a § 924(c) conviction that has become final, then commits a second or subsequent § 924(c) offense,
only then would he qualify for a 25-year consecutive sentence.

III. Proposed Changes to Safety Valve

Effective Date: This proposed legislation is NOT retroactive. Unlike the proposed § 851 and § 924(c) provisions, the proposed safety valve provision will NOT apply to cases pending sentencing. Rather, this new safety valve provision will only apply if the conviction is entered on or after the date of enactment. This language is different from the Effective Date language for the § 851 and § 924(c) changes, but it is not explained. It likely will be disputed whether a “conviction is entered” refers to the entry of the final judgment after sentencing, or whether it refers to the adjudication of guilt following a trial or guilty plea. 

Boat Cases: The statute would be amended so that those convicted of “boat cases,” pursuant to 46 U.S.C. §§ 70503 and 70506, would now be eligible for a statutory safety valve reduction below the mandatory minimum, pursuant to 18 U.S.C. § 3553(f).

Criminal History Points:

Eligibility for safety valve under the proposed legislation be expanded to defendants with up to 4 four criminal history points, with the following exclusions:

  • Any person with a prior conviction that is scored with three criminal history points, pursuant to USSG § 4A1.1(a), would not be eligible for safety valve; and
  • Any person with a prior conviction that is scored with two criminal history points, which is determined to be a “violent offense,” would not be eligible for safety valve. “Violent offense” will have the same definition as a “crime of violence” under 18 U.S.C. § 16 

***READ THE FIRST STEP ACT

If You Have Questions About A Jacksonville, Florida Federal Criminal Case

Please contact Clifton Law Office, you can reach me at my contact page online or call me directly at 904-209-4883.

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