LOWERING THE DRUG GUIDELINES AND RETROACTIVE APPLICATION
1. What is this?
On April 30, 2014, the U.S. Sentencing Commission voted to lower the drug quantity table by two offense levels, which will lower drug sentences imposed after November 1, 2014. This is known as Amendment 782.
2. What does retroactive application mean?
On July 18, 2014, the Commission voted to make this change (Amendment 782) apply to all those offenders currently serving time for federal drug offenses. The Commission estimates that nearly over 46,000 offenders will benefit from the retroactive application of Amendment 782 and thereby also have their sentences reduced on average by 25 months. In some cases, it could result in an even larger reduction.
3. How does one get the adjustment to his sentence?
A defendant must petition a court under 18 U.S.C § 3582(c) in order to obtain the adjustment.
4. Is it automatic?
No. A qualified defendant must petition the court that imposed the original sentence to adjust the sentence downward. Even then the court has discretion to decline the petition, or only give some relief.
5. Who is qualified?
First, a defendant must have been convicted and sentenced for a federal drug offense. Second, if a defendant already received a downward variance of more than two levels, he likely will be ineligible to receive any more adjustment to his sentence unless the adjustment was the result of a 5K1.1 substantial assistance motion. Third, even if qualified, the court still has the discretion to deny the petition, or only grant it in part for a variety of reasons.
6. What is a 5K1.1 substantial assistance motion?
The guidelines allow courts to depart below the guidelines (and in some cases, the mandatory minimum if applicable) if the government asks the court to do so as a result of a defendant’s cooperation with the government. If a defendant received a downward departure as a result of a 5K1.1 motion, then he could receive up to the same proportional reduction even if the original reduction was in excess of two offense levels.
7. Can I get more than a 2-level reduction if I did not receive a 5K1.1 motion?
No. The U.S. Supreme Court ruled in Dillon v. United States, 130 S. Ct. 2683 (2010) that courts cannot give downward variances or “Booker variances” when adjusting sentences pursuant to 18 U.S.C. § 3582(c). The only exception is in the case of 5K1.1 motions as noted above.
8. How soon can an eligible defendant be released?
The Commission decided that no eligible prisoners are to be released before November 1, 2015 in order that the courts and district probation offices can become ready for the thousands of petitions that will be filed, as well as build-up their respective re-entry programs.
9. What should a defendant do if he believes he might benefit from the retroactive application of Amendment 782?
Contact our office immediately. Our knowledgeable attorneys are experts on the U.S. Sentencing Guidelines and this amendment in particular. We will analyze your case to determine your eligibility, and if eligible, can then petition the court for you to maximize the chance that not only your petition will be granted, but that you receive as much of a reduction as possible.
