What is the “Minus 2”? Sentencing Commission dropped the Drug Guidelines by two levels for all drugs. Not just crack. Doesn’t affect very top or bottom of table. BOL range floors no longer pegged to mandatory minimums. So, ranges after acceptance may be lower than mandatory minimum.
How Does it Affect Defendants Who Haven’t Been Sentenced Yet? Will apply to all Defendants sentenced after November 1, 2014. What about Defendants who are scheduled to be sentenced between now and November 1? DOJ says Gov’t will not oppose a two-level reduction in certain cases sentenced before November 1, 2014.
What About Defendants Who’ve Already Been Sentenced? Last Friday, the Sentence Commission voted to make the “minus 2” amendment retroactive. Applies to all eligible Defendants. Rejected DOJ proposals to limit relief to Defendants in Criminal History Categories I and II. Courts can start processing and ordering retroactive sentence reductions on November 1, 2014. But……
Delayed Release in Retroactive Cases No immediate release in retroactive cases. While courts can start entering orders on November 1, 2014, no order retroactively reducing a defendant’s sentence can take effect before November 1, 2015. Effectively, there is a one year delay before anyone can be released. Any defendant with a release date before November 1, 2015 gets no relief.
Retroactive Cases: How Many Are Eligible? Nationwide : 51,141* Eastern NC:1178 (10 th in U.S.) Middle NC:456 (36 th in U.S.) Western NC:699 (20 th in U.S.) * All numbers from the Sentencing Commission, May 2014.
What is the Average Cut? Average Reduction: 18.4% 35% of Defendants will receive cut of one year of less. 4.9% of Defendants will receive cut of more than 60 months.
What is the Effect of the Delay? Basically some Defendants get hosed.
OK, Who Gets Hosed in My District? EDNC : o Immediate Release: 7.4% of those eligible for relief (86 Defs) o Release within one year: 9.1% (106 Defs) MDNC : o Immediate Release: 10.6% of those eligible for relief (48 Defs) o Release within one year: 14% (63 Defs) WDNC : o Immediate Release: 13.2% of those eligible for relief (90 Defs) o Release within one year: 13.6% (93 Defs) Bottom line : the closer you are to release, the more likely you are to get screwed.
How About Some Examples? Defendant Joe Blow: o Files motion on November 1, 2014. o Due for release August 15, 2015. o Eligible for 12-month cut under new guidelines. o No Relief! Joe will be out be for any order cutting his sentence can take effect. Defendant Jon Snow: o Files motion on November 1, 2014. o Due for release December 25, 2016 o Eligible for 24-month cut under new guidelines o Partial Relief! Reduction would call for out date in December 2014 but order can not take effect until November 1, 2015 so Jon could be released that day but no sooner.
What Do I Need to Do? This is just like the Crack Amendment and FSA retroactive reductions. Nothing in 18 U.S.C. § 3582(c) has changed. Nothing in U.S.S.G. §1B1.10 has changed except the one year delay. Same eligibility requirements, same limitations on relief. Each district will develop its own procedures.
So, What Else Is New? Amendments to the Felon-in-Possession cross- reference: Limited to guns listed in indictment. Failure to register as sex offender is not a sex offense. Courts can run sentences concurrent to related state sentences that have not yet been imposed.
What’s Next? Nothing huge on the horizon. May take a look at mitigating role. Continue various studies. Some promising legislation but not much happening.