Waking Up to Reality and Coming Back Down to Earth.

October 13, 2015
By Hanging Out with Carl Gunn


  • A more limited bill including just a few of the ameliorative provisions of the SAFE Act I blogged about a couple of months ago has been introduced in Congress.
  • The bill would (1) narrow the category of drug priors that can support enhanced mandatory minimums but add violent crime priors; (2) relax the criminal history limitations on safety valve relief; (3) require “second or subsequent” 924(c) convictions to be sustained prior to the new 924(c) offense but include state violent crime convictions as prior convictions; (4) reduce the Armed Career Criminal Act mandatory minimum but increase the maximum sentence for other felon in possession of a firearm convictions; (5) make the Fair Sentencing Act retroactive; and (6) add time credit provisions, though those would probably be biased against indigent defender clients.
  • The new bill’s provisions apply to any “sentence imposed” and/or “conviction entered” after the bill’s effective date, regardless of when the offense was committed, so you may want to try to delay sentencings, and possibly even pleas, in case the bill’s passed.



A couple months back, I put up two posts about a wonderful new bill that had been introduced in Congress called the “Safe, Accountable, Fair, and Effective (SAFE) Justice Act of 2015.”  The bill would have made some amazing changes in sentencing law – to mandatory minimums, the safety valve, 924(c) sentencing, and other provisions as well – and to procedural law – on things like Brady, other discovery, and the use of informants and the taping of interrogations.  (See the “If You Really Want to Dream . . .” post in the July 2015 link at the right and the “If You Want to Do Even More Dreaming . . .” post in the August 2015 link.)

Unfortunately, less sympathetic senators got involved – including a past nemesis of sentencing reform, Senator Grassley – and they’ve offered an alternative bill they call the “Criminal Justice Reform and Corrections Act of 2015,” which eliminates and/or cuts back most of the SAFE Act’s provisions and actually makes some sentencing provisions worse.  Still, it’s worth knowing about because there are some favorable changes left.  It’s also worth keeping in mind as you schedule pleas and/or sentencings in your cases down the line, because the Act’s favorable provisions can apply to pre-Act offense conduct.

The full text of the Senate bill is linked here, but some of the highlights are:

1. The bill makes multiple changes, two favorable but one unfavorable, to the sentence enhancements for prior convictions in drug cases.  (See section 101 of the linked full text bill.)

a. It narrows the prior drug convictions that support the enhancements to “serious drug felonies,” which are defined by reference to the definition of “serious drug offense” in the Armed Career Criminal Act, at 18 U.S.C. § 924(e)(2)(A).  This has the benefit of (i) excluding simple possession convictions and (ii) including only more serious drug trafficking convictions, by requiring that the drug trafficking offense carry a maximum sentence of 10 years or more.

b. It reduces the increase in the 10-year mandatory minimum for a defendant with one prior conviction from 20 years to 15 years and the increase for a defendant with two prior convictions from life to 25 years.

c. On the negative side, the bill expands the convictions that support the enhancement to include non-drug convictions, by adding convictions for a “serious violent felony” as defined in 18 U.S.C. § 3559(c)(2)(F) if the sentence was more than 12 months imprisonment.  The 18 U.S.C. § 3559(c)(2)(F) definition includes, among other offenses,  any offense having force as an element and carrying a maximum sentence of 10 years or more and includes robbery and “firearms use” no matter what the maximum sentence is.  The bill also separately includes prior convictions with a sentence of more than 12 months of imprisonment for any offense that would have constituted felony assault under 18 U.S.C. § 113 if it were committed in a federal jurisdiction.

2. This new bill does retain some favorable modifications to the safety valve statute, though they’re not as broad as the modifications proposed in the original SAFE Act.  (See section 102 of the linked full text bill.)

a. It modifies the criminal history prong of the safety valve requirements to allow up to 4 criminal history points, so long as the defendant has no prior “3-point offense” and no “prior 2-point drug trafficking or violent offense.”

b. It allows safety valve relief even when the defendant doesn’t satisfy this criminal history requirement if (i) the court “specifies in writing” that “excluding the defendant pursuant to subsection (f)(1)” substantially over-represents the seriousness of his criminal history or the likelihood that the defendant will commit other crimes and (ii) the defendant has no prior convictions for a “serious drug felony” or “serious violent felony” as those terms are defined in the prior section modifying the prior conviction enhancements in drug cases.

3. As a sort of half-step toward relief for defendants who still don’t qualify for safety valve relief, the bill allows sentencing with a 5-year mandatory minimum rather than a 10-year mandatory minimum regardless of the criminal history points if the defendant satisfies a list of requirements that include the other requirements in the original safety valve statute and additional requirements that the defendant (a) does not have a prior conviction for a “serious drug felony” or “serious violent felony,” (b) did not “exercise substantial authority or control over the criminal activity of a criminal organization, regardless of whether the defendant was a member of such organization,” (c) did not distribute a controlled substance to a minor, and (d) “did not act as an importer, exporter, high-level distributor or supplier, wholesaler, or manufacturer of the controlled substance involved in the offense or engage in a continuing criminal enterprise.” (See section 103 of the linked full text bill.)  “Importer” is defined to exclude defendants whose role was limited to transporting drugs or money at the direction of others.  “Wholesaler” is defined as “a defendant who sold non-retail quantities of a controlled substance to other dealers or distributors,” which will probably include many, perhaps even most, federal defendants.  But note that the definition does focus on “the controlled substance involved in the offense,” presumably meaning the offense of conviction.  Query whether an undercover agent or informant merely pretending to be another dealer or distributor is sufficient under this provision.

4. The new bill also retains one of the SAFE Act’s favorable modifications of 18 U.S.C. § 924(c) and even adds another, but it also expands § 924(c) in an unfavorable way.  (See section 104 of the linked full text bill.)

a. The bill reduces the mandatory minimum for a second or subsequent 924(c) conviction from 25 years to 15 years.

b. The bill applies the mandatory minimum for second or subsequent convictions to only those convictions that precede commission of the new offense, so the enhanced mandatory minimum for second or subsequent convictions won’t apply to multiple 924(c) convictions in the same case.

c. On the negative side, the bill expands the prior convictions that can support the enhanced sentence for a second or subsequent conviction to include any state conviction for “a crime of violence that contains as an element of the offense the carrying, brandishing, or use of a firearm.”

5. The new bill also amends the Armed Career Criminal Act to decrease the mandatory minimum under that Act from 15 years to 10 years, though it increases the maximum for certain other firearms offenses, including ordinary felon in possession, from 10 years to 15 years.  (See section 105 of the linked full text bill.)

6. The bill makes the Fair Sentencing Act mandatory minimums retroactive by allowing defendants who have already been sentenced to seek a reduced sentence based on the new Fair Sentencing Act mandatory minimums.  (See section 105 of the linked full text bill.)  The bill bars such a motion “if the sentence was . . . previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 or if a motion made under this section was previously denied,” but this may not be as problematic as it seems.  My first reaction was that this would preclude relief for defendants who made an 18 U.S.C. § 3582(c)(2) sentence reduction motion after the Fair Sentencing Act and were either completely denied or got only limited relief in the form of a reduction to just the old mandatory minimum rather than all the way to the new guideline range.  But the bar wouldn’t apply to those defendants who were completely denied because they made their motions under already existing 18 U.S.C. § 3582(c)(2), not “under this section” of this new bill.  (See the language I quote above.)  And those defendants who weren’t completely denied but had their reductions limited got their reductions based solely on the new guidelines amendments that paralleled the Fair Sentencing Act, not the Fair Sentencing Act itself.  In the vast majority of cases, judges refused to apply the statutory Fair Sentencing Act amendments, so the limited sentence reductions weren’t under “sections 2 and 3 of the Fair Sentencing Act of 2010” (again, see the language I quote above), but under the guidelines amendments which happened to parallel those statutory amendments.  While those amendments were suggested by the Fair Sentencing Act, that suggestion was made not in sections 2 and 3 of the Act, but in section 8 of the Act, which directed the Sentencing Commission to “make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guidelines provisions and applicable law.”

     One note on applicability of these provisions to sentencings for offenses committed prior to the bill’s enactment (if it’s enacted).  Perhaps recalling the fight over the issue with the Fair Sentencing Act (see Dorsey v. United States, 132 S. Ct. 2321 (2012)), this bill’s provisions specifically address the question of applicability to offenses committed before the bill’s enactment.  The provisions modifying the drug sentence enhancement statutes, modifying 18 U.S.C. § 924(c), and modifying the Armed Career Criminal Act – sections 101, 104, and 105 – expressly state they apply “if a sentence for the offense has not been imposed as of [the] date of enactment” and also allow defendants who have already been sentenced to make motions for reduced sentences consistent with the amendments.  (See sections 101(c), 104(b), and 105(b) of the linked full text bill.)  The provisions modifying the safety valve statute – sections 102 and 103 – “apply only to a conviction entered on or after the date of enactment.”  (See sections 102(b) and 103(b) of the linked full text bill.)  These provisions mean you’ll want to seriously consider delaying at least sentencings.  And in safety valve cases, you may want to delay pleas as well as sentencings, or at least include an agreement that the plea can be withdrawn and reentered if the bill passes after the plea but before sentencing.  That’s because it may be debatable when a “conviction” is “entered.”  We could argue a “conviction” isn’t “entered” until formal entry of judgment at the time of sentencing, but the government might argue it’s “entered” at the time of the plea.

The new bill also has some provisions creating an opportunity for increased time credits that allow early release for certain “recidivism reduction programming and productive activities.”  These provisions may help some of our clients but many analysts think they’re strongly skewed against defender clients, who are more often poor and minority, and in favor of more well off, white collar defendants.  This part of the bill is too complicated to address in a short blog post, so I’ll leave that to other commentators.  You should also be aware that a more limited companion bill has been introduced in the House of Representatives, linked here, which doesn’t include these time credit provisions and limits the group of already sentenced defendants who can seek retroactive relief.  This House bill is otherwise very similar to the Senate bill.