What is “Drug Minus Two” (also called “All Drugs Minus Two” or Amendment 782)?
Now officially known as Amendment 782, it reduces 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 proposed Guidelines, officially referred to as Amendment 782, were published in January 2014 for a sixty-day period of public comment. In April 2014, the U.S. Sentencing Commission approved the amended Guidelines, and in July 2014 the Commission voted that the amended Guidelines would be retroactive. Here is a downloadable copy of the drug quantity table effective November 1, 2014. Those who are sentenced on November 1, 2014, or later get the benefit of the new reduction. Concerning those who have already been sentenced, read on.
Who Will “Drug Minus Two” Affect?
Amendment 782 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 see the article I wrote on this topic: Sentence Reductions (full version) or Sentence Reductions (condensed for mobile devices).
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 problem of drug distribution has grown worse, not better. So, after 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.
When Does It Take Effect?
The U.S. Sentencing Commission spent the first few months of 2014 working on the proposed Guideline Amendments. In April 2014, they approved them for submission to Congress. Congress had the period from May 1, 2014 to November 1, 2014 to formally disapprove the Amendment. They did not disapprove the Amendment, so it became 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).
ON RETROACTIVITY: On July 18, 2014, the Commission voted unanimously to make the Amendment retroactive without restriction (that is, they did not restrict retroactivity to a narrower group than the language of the amendment itself). Inmates may begin filing motions on November 1, 2014. However, the Commission did make the rule that any sentence reduction granted will not be effective any earlier than November 1, 2015, in order to give courts and probation offices time to prepare for the wave of released inmates.
Will Sentences for Eligible Inmates Be Reduced Automatically?
No. Somebody is going to have to do something to make the reduction happen. (See next paragraph.)
Do I Need to Hire an Attorney for This?
Unless the case is an easy case and there are no complicating factors, you should seriously consider hiring your own attorney. See our blog post with a fuller discussion of whether you should consider hiring an attorney to file your motion.
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What Will Inmates and Their Families Need to Do?
The best advice 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, and these are 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. I usually find that a straightforward Section 3582(c)(2) motion takes 20 hours of my time and a complicated case takes about 30 hours of my time. Thus my fees range from $6,500.00 to $9,500.00 in most cases. If an attorney is quoting you $1,500.00 to $3,000.00, that probably also reflects how much time they intend to put into the case. That probably means that they don’t have much experience, aren’t intending to put much time into your case, or both. Thus you want to hire an attorney who will give your case the attention it deserves.
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