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Criminal Litigation

The U.S. Sentencing Commission's War on Drugs

By Vadim A. Glozman – August 14, 2014


Editor’s Note: We are pleased to present two excellent articles below regarding the recent amendments to the Federal Sentencing Guidelines by the U.S. Sentencing Commission. Our first article, by Vadim A. Glozman, discusses how the amendments are consistent with Department of Justice policy under Attorney General Eric Holder, and examines the potential impact on the sentencing courts. Dillon Malar’s article focuses on the consequences of the guidelines being applied retroactively, and touches on the logistics of how this will be accomplished. We hope you enjoy both of these excellent articles on this important subject.


Earlier in 2014, the U.S. Sentencing Commission voted unanimously to amend base offense levels associated with the Drug Quantity Table in guideline section 2D1.1. Essentially, the amendment reduces the base offense levels for all drug types by two, while remaining consistent with the mandated five- and ten-year statutory minimums. The amendments would make parallel changes to the section 2D1.11 quantity tables, which apply to offenses involving chemical precursors of controlled substances.


The commission estimates that the amendment would decrease sentences for nearly 70 percent of federal drug-trafficking defendants by an average of 11 months, or 17 percent. This “modest reduction” in drug penalties is an attempt by the commission to reduce the federal prison population by what they expect to be more than 6,500 inmates in five years, with hopes of a considerably greater long-term impact.


Uniformity with Attorney General Holder’s Agenda
Last August, Attorney General Eric Holder introduced his “Smart on Crime” initiative, changing the Justice Department’s policy on charging drug offenders by reserving mandatory minimum sentences for high-level and violent drug traffickers. Holder urged prosecutors to continue charging the most serious offense consistent with the defendant’s conduct, as long as the charges reflect an individualized assessment and fair representation of the defendant’s conduct.


In his memorandum, Holder provided a framework under which prosecutors should decline to charge a defendant with a drug quantity that would trigger a mandatory minimum sentence. Effectively, defendants with nonviolent relevant conduct, minimal roles within criminal organizations, no significant ties to large-scale drug-trafficking organizations, and no significant criminal history become eligible for relief under Holder’s initiative.


Since then, Holder has testified before the commission, endorsing the proposed amendments to the Federal Sentencing Guidelines that would reduce the average sentence for low-level offenders. In his testimony, Holder proclaimed that his “Smart on Crime” initiative has already allowed the department to make critical improvements by conserving precious resources, improving outcomes, and disrupting the “destructive cycle of poverty, incarceration, and crime that traps too many Americans and weakens entire communities.” Holder confidently assured the commission that the proposed amendments to the Federal Sentencing Guidelines will undoubtedly further advance and institutionalize his initiative of ensuring that people convicted of certain low-level, non-violent drug crimes will face appropriate sentences and help control federal prison populations.


Possibility of Retroactivity
The implementation of the proposed amendments to the “draconian” drug guidelines begs the question as to their retroactivity. For previously convicted defendants to realize the benefit of the amendment, the commission must first vote to make the amendment retroactive and modify section 1B1.10(c) of the guidelines to include the amendment.


In deciding whether the proposed amendments should be retroactive, the commission must consider the purpose of the amendment, the magnitude of the change in the guideline range, and the difficulty in applying the amendment retroactively. Although very few guideline amendments are made retroactive, it would seem as if the commission’s ultimate goal of reducing the prison-overcrowding problem would be directly benefited by retroactivity of the amendment.


The commission’s Office of Research and Data estimates that 51,141 offenders sentenced before October 31, 2014, would be eligible to receive a reduction in their current sentence should the amendments be made retroactive. In the unlikely event that courts were to grant the full reduction possible in each sentence, there would be an average reduction of 18.4 percent, resulting in the immediate release of approximately 4,600 inmates.


Potential Impact on Sentencing Courts and Litigation
Should the amendments be made retroactive, 18 U.S.C. § 3582(c) provides defense attorneys with a procedural vehicle to ask sentencing courts to apply the new guideline amendments to their client’s case and reduce the client’s sentence. Specifically, section 3582(c)(2) allows courts to modify a defendant’s sentence in cases where the defendant was sentenced to a term of imprisonment based on a sentencing range that was subsequently lowered by the commission.


Notwithstanding the government’s agreement or opposition, it is entirely within the court’s discretion to grant the reduction. In his testimony to the commission, Holder acknowledged that adopting the proposed amendment to the Federal Sentencing Guidelines would be an important step in allowing judges to make commonsense determinations.


In 2005, the now-seminal decision in United States v. Booker first gave sentencing courts the ability to exercise much greater discretion in crafting a sentence that is sufficient but not greater than necessary by effectively making the Federal Sentencing Guidelines advisory rather than mandatory. As such, if the commission alters the guidelines—as would happen in November 2014 when the amendments can come into effect—courts should be given the chance to reconsider both the guidelines and the resulting sentence.


When fashioning a post-amendment sentence subject to section 3582(c) relief, the sentencing court must again consider the factors set forth in section 3553(a) and make a determination that is consistent with the applicable policy statements issued by the commission. (The commission’s guideline section 1B1.10 application notes instruct sentencing courts to consider public safety and post-sentencing conduct when imposing a reduced sentence.) What’s more, in determining the amended guideline range for eligible defendants, the court must do so as if the amendments to the guidelines had been in effect at the time the defendant was sentenced, while leaving all other guideline-applicable decisions unaffected.


There is not much to suggest the courts will be reluctant in granting reductions. The U.S. Supreme Court previously asserted in Freeman v. United States that there is no reason to deny section 3582(c)(2) relief to defendants who “linger in prison” because of sentences that would have not been imposed “but for a since-rejected, excessive range.” The commission has made a determination that drug-quantity guidelines were excessive, in part because the guidelines already include enhancements for violence, firearms, and a “whole host of other factors.” Accordingly, there is no sense to preclude defendants who were subject to those enhancements from obtaining a benefit from the amendments.


Keywords: criminal litigation, U.S. Sentencing Commission, Federal Sentencing Guidelines, drug penalties, Eric Holder, retroactive


Vadim A. Glozman is an associate with Edward M. Genson & Associates, Chicago, Illinois.


 
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