In recent years, a growing number of people inside and outside of government have recognized that the Federal Sentencing Guidelines for drug offenses were patently unfair. Things like mandatory minimums tied the hands of judges in sentencing drug offenders. At the same time, the differential between powder and crack cocaine led to a disparate impact on poor and minority defendants. This has culminated in a series of reforms that address the Federal Sentencing Guidelines as they apply to drug convictions, incorporating the First Step Act to help provide greater fairness in sentencing.
First Time Offenders
A person who has a clean record is referred to as a “zero-point” offender. This means that he or she has no points on the Federal Sentencing Guidelines chart for criminal history since he or she has no prior convictions. There are a number of other criteria in determining criminal history, such as the offense does not involve violence or use of a firearm, is not a hate or sex crime, and did not cause substantial financial harm. Being a “zero-point” offender moves you to the far left on the chart. The reform involves an automatic two-point sentence reduction on the offense level scale for such “zero-point” offender for convictions related to offenses committed on or after February 1, 2024. To qualify, a drug-related offense cannot involve a crime of violence.
Youthful Offenders
There has been a growing recognition that a drug conviction can destroy the future of a youthful offender. These defendants are more likely to engage in substance abuse and similar conduct due to peer pressure and other issues associated with youthful conduct. As a result, judges are now being counseled by the Federal Sentencing Guidelines Commission to take this into account when sentencing an individual under 25 years of age. This is geared to provide more lenient sentences for young offenders, especially those who have no prior convictions.
Alternative Sentencing Options and Diversion Programs
Judges are also encouraged to provide rehabilitation or other diversion programs for drug offenders. This is because the crimes committed by those with substance abuse problems are often tied to their addictions. Placing them in rehabilitation tied to a diversion program will often break the cycle of recidivism. Once they complete their drug rehabilitation together with other terms and conditions of the diversion program, they can get on with their lives without the stigma attached to a felony drug conviction. This is especially important for younger defendants.
The Federal Safety Valve and the First Step Act
Mandatory minimum sentences have harmed the public more than at first expected. Judges are not allowed to take into consideration mitigating factors that might militate towards a more lenient sentence, such as mental health problems, a history of addiction, and public service that the defendant may have done, such as being a military veteran. The Smarter Sentencing Act of 2023 reduced the mandatory minimum sentences for many drug offenses. It allowed the judge to take into account a number of different factors in setting a sentence for someone convicted of a drug-related offense.
The Federal Safety Valve dovetails with the First Step Act by creating a criteria that allows a judge to make a downward departure from the mandatory minimum term of imprisonment for certain drug-trafficking offenses. These mirror the ones in the First Step Act, as codified at 18 USC 3553. Now, a judge has the power to sentence a defendant below the mandatory minimum if the defendant does not have more than four criminal history points (excluding those that resulted in a one-point offense), a prior three-point offense, and a prior two-point offense for a violent crime.
Petitions for Resentencing
Defendants who received a mandatory minimum term of incarceration for certain drug offenses, such as those involving crack cocaine or owning live marijuana plants, can petition for resentencing under the Federal Sentencing Guidelines reforms. This is because the reduction in the Guidelines for certain offenses allows those sentenced to a longer term, such as a mandatory minimum, to file a motion for resentencing with the court. The defendant will have to show that the new Guidelines warrant a lower sentence than the one originally imposed. In the case of a mandatory minimum, this should not be difficult to prove.
Amendments to the Calculation of Loss
The amendments to the Federal Sentencing Guidelines also affect the calculation of loss. The court will have to take into consideration the actual loss suffered by victims, as well as the intended loss that the defendant intended to inflict. If the actual loss is higher than the intended loss, then the court will use the intended loss in determining the offense level for the sentence. Certain things like interest and finance charges are excluded from the determination of actual loss. In addition, any money or property returned by the defendant to his or her victims will reduce the amount of the loss.
The loss amount is calculated by the prosecutor and the probation agent on the case, and will appear in the Presentence Report (PSR). If the defendant believes the numbers are wrong, it can contest the PSR, leaving it up to the judge to make the determination. Allowing the judge to use a lower number at sentencing, the intended loss number, could result in a drug offender getting a lower sentence for his or her crime.
If You or a Love One Have Been Charged with a Federal Drug Offense, Our Firm Can Help You
The Federal Sentencing Guidelines reforms will help to reduce the amount of time a drug offender may have to serve in federal prison, especially one with a first-time offense. Nevertheless, a federal drug conviction can have a major impact on your life. The experienced criminal defense attorneys at Federal Criminal Attorneys of Michigan will provide you with the representation you need to protect your rights and defend against these charges.
