What is “Drug Minus Two” (Also called “All Drugs Minus Two”)?
In short, it is a plan to reduce the United States Sentencing Guidelines by two levels for ALL substances, across the board. All of this officially began in 2011, when the U.S. Sentencing Commission announced that they would like public comment on whether such a reduction should be considered. Public comment followed that suggested that the public was generally in favor of the idea. The next official announcement was in August, 2013, when the Commission announced that it does intend to consider revising the guidelines, and indicated it would put it on its agenda for the 2014 Guideline amendment cycle.
Who Will “Drug Minus Two” Affect?
The upcoming amendment to the U.S. Sentencing Guidelines will affect inmates whose guideline sentence was based on some quantity of ANY controlled substance. The wording of the last sentence is critical. If the inmate’s sentence was based on the GUIDELINE QUANTITY CALCULATION, rather than on a STATUTORY MANDATORY MINIMUM, then it may lower the inmate’s guideline range. As we have seen with the two “crack” sentencing guideline amendments, those whose sentences were imposed based on a mandatory minimum, or based on a statutory or guideline enhancement, generally are not affected.
PLEASE NOTE, THERE ARE EXCEPTIONS TO THIS, AND THERE ARE CREATIVE ARGUMENTS THAT CAN BE MADE BY AGGRESSIVE ATTORNEYS WHICH COULD INFLUENCE A JUDGE TO RULE IN THE INMATE’S FAVOR. CONSEQUENTLY, IT IS WISE TO HAVE AN EXPERIENCED ATTORNEY CONDUCT A CAREFUL REVIEW OF THE CASE.
Additionally, if there is a mandatory minimum sentence rendering the inmate ineligible, there is another way to remedy this. For more information on this, please click on this link to see the article I wrote on this topic: Sentence Reductions
Why is the Commission doing this?
As time passes since the passage of the Sentencing Reform Act of 1984 (nearly 30 years now), the public and those involved in setting policy on drug sentencing issues are finally recognizing that the current guidelines for sentencing in drug cases are excessive, and that they are not accomplishing their intended purpose of curtailing drug distribution and sales.
For years, those on the defense side have bemoaned the draconian disparity between state and federal sentencing for identical conduct and quantities. For example, for the exact same activity and quantity, a state sentence might be six months, whereas a federal sentence would be ten years, or more.
However, the “tough on crime” crowd refused to acknowledge that the state-versus-federal disparity did not make sense. In the last decade, however, enough data has been gathered on the first two decades of the Sentencing Reform Act of 1984 to show that, despite the draconian federal sentencing guidelines and the outrageously long federal prison sentences being handed out, the drug problem of drug distribution has grown worse, not better. So, after nearly 30 years, it is finally dawning on them that this is not working, and the Sentencing Commission has stepped up to the plate, once again to take us one more step in the right direction.
What Will Happen Next?
Over the next several months, the U.S. Sentencing Commission will begin drafting proposed Guideline Amendments. There will likely also be discussion, public comment, and consideration of whether to make the proposed Amendment retroactive.
If this process follows the track of similar Guideline amendments in the past, I expect that the Sentencing Commission will publish the proposed Guideline Amendment in early 2014, and then, after a public comment period, submit the proposed amendment to Congress by their May 1, 2014 deadline. Congress will then have a period during which they may formally disapprove the Amendment. If they do not disapprove the Amendment, it will become effective on November 1, 2014. That means those who have not yet been sentenced as of November 1, 2014, will get the benefit of the newly reduced Sentencing Guidelines, if they apply (meaning they are not disqualified by a Mandatory Minimum or an enhancement like the Career Offender Enhancement).
Some time during this process, the Commission is likely to consider whether to make the Amendment retroactive. If they do, they will pass another amendment that lists the “Drug Minus Two” amendment among those that it intends to be applied to those who have already been sentenced under the old law.
Will Sentences for Eligible Inmates Be Reduced Automatically?
Probably not. As with the last two Amendments to the “crack” cocaine sentencing guidelines, most inmates had to have an attorney file a motion for them under 18 U.S.C. Section 3582(c)(2). In a very few districts, Judges directed the U.S. Probation Office, or their local Federal Defender’s office to take the initiative to seek sentence reductions for clearly eligible inmates. However, most did not, and even in those who did, if someone was arguably eligible, but not clearly eligible, no action was taken, or the Judge simply denied the inmate without ever even notifying the inmate. In most federal districts, the inmate was simply left on his or her own to take action for themselves, either to file their own motion (many of which were denied) or to hire an attorney to prepare and file their motion (in which they were more likely to have their sentences reduced). I have every reason to expect that this Amendment, if it is made retroactive, will be handled much the same way.
What Will Inmates and Their Families Need to Do?
The best advice, once the Amendment becomes effective and becomes retroactive, is to hire an attorney with significant experience handling Section 3582(c)(2) motions to conduct a careful review of the case to determine whether the inmate is eligible and what the attorney believes the likelihood of success will be. What is needed for this review is a copy of the inmate’s Presentence Investigation Report. The inmate may refer to this document as their “PSI,” their “PSR,” or their “PIR.” Often, the hardest part of the review is getting a copy of this Report to the attorney.
The Presentence Investigation Report is a sealed document containing very sensitive and personal information about the inmate, his case, and his family members. As a result, the Court will not release a copy to anyone but an attorney, and often, the Court will not even release it to an attorney without a Court Order. Additionally, the Presentence Investigation Report is so sensitive that it is considered contraband in the Federal Bureau of Prisons, and so the inmate is not allowed to have a copy in the prison. Ideally, the inmate will have forwarded a copy to a trusted friend or family member for safekeeping before being transferred into the BOP, and that friend or family member can provide it.
Because of the difficulty in obtaining the PSI, it would be a good idea to start trying to locate it now. Ask the inmate if they sent a copy to anyone for safekeeping. Ask them to write their former attorney and tell them (if they haven’t shredded it already) to send a copy to a trusted family member now. Then, when you have it on hand, when the time comes, send a COPY to the reviewing attorney, and keep a copy for future use, recalling how much trouble it was to track it down.
What Does a Case Review Cost?
Different attorneys charge different rates, of course, and attorneys’ fee scales vary considerably. I charge a flat fee of $500.00 to conduct the review and provide a consultation on my findings, IF the family is able to provide me with the Presentence Investigation Report. If I have to obtain it myself, I have to charge considerably more, because, again, it often requires me to file a motion and get an Order from the Judge authorizing the release of the report to me.
What Does it Cost to Have an Attorney File the Motion If the Inmate Is Eligible?
Again, different attorneys have different fees, that is usually based on the amount of experience they have with the particular kind of case, as well as the complexity of the issues involved in the case. My fees for Section 3582(c)(2) ranges from $6,500.00 to $9,500.00 in most cases. If the case is very straight forward, then the fee will be on the lower end. If it is a “hard” case, then it will be on the higher end.
Because these cases are in Federal Court, the attorney need not be from the state where the case is located. If they are not already admitted to the District Court in which the case was filed, they can move for admission, either full admission or “pro hac vice,” which means admitted only for that case.
What is most important is having an attorney who has extensive experience with Section 3582(c)(2) motions. If you have any questions, you can call me at (512) 693-9LAW or email me. Just click on the “Contact Us” link here or at the top of the page, and I would be glad to talk to you about your matter.
by Chad Van Cleave