The Essentials of “Drug Minus Two”

In April 2014, the United States Congress approved Amendment 782 to the Federal Sentencing Guidelines. Under the amendment, given the nickname “Drugs Minus Two”, the transgression levels for nearly all federal drug offenses will be reduced by two levels. On July 18, 2014,  Sentencing Commission voted to make the two-level sentence reduction retroactive. The Commission’s decision to give retroactive effect to the amendment indicates that eligible offenders who’ve already been sentenced for federal drug offenses and are also currently incarcerated can ask the courts to reduce their sentences in accordance with the latest guidelines.

When Will the Reduction go into Effect?

Approximately 46,000 people sentenced for federal drug offenses between 1991 and 2014 will be qualified to request retroactive sentence reductions. While courts may begin reviewing motions regarding the sentence reductions as soon as November 1, 2014, no offender whose sentence is affected by the reduction will be released before November 1, 2015. This one-year delay in releasing eligible offenders is likely due to the need for courts to evaluate, on a case-by-case basis, whether an eligible individual should receive the decreased sentence.

Who Qualifies for the Sentence Reduction Retroactively?

Criminal offenders who will be given a reduced sentence retroactively must currently be serving a term of imprisonment, the sentencing guideline range applicable to the individual must have been lowered under the amendment, and the individual mustn’t already be scheduled November 1, 2015. Under some considerations, an individual who waived his/her right to seek a sentence reduction as part of a plea agreement  still be eligible for the sentence reduction at the discernment of the court. Someone initially sentenced in accordance with mandatory minimums may be eligible for the reduction the reduced sentence doesn’t fall below the current mandatory minimum required by Congress. Offenders who’ve already received a sentence reduction using the “safety valve” may also be eligible for the two-level reduction. These types of cases may be complex, making it  to assess whether or not someone is qualified to receive the reduction retroactively. Using the advice of private counsel may be extremely advantageous in navigating these issues.

Who is Not Eligible for the Sentence Reduction Retroactively?

Persons eligible to have their sentences reduced retroactively include those whose sentences would be below the guideline range if the two-level reduction were granted. As a result, an individual may meet all the requirements to be eligible for a sentence reduction, the court won’t reduce the sentence if such a decrease places the individual outside of the federal sentencing guideline range. Similarly, if applying the two-level reduction retroactively doesn’t reduce an individual’s base offense level, he/she would not  reduction. In that type of situation, since the reduced sentence would be calculated by using the same base offense level as the originally imposed sentence, there would be no change in the overall calculated sentence. Other individuals who will be unable to seek the reduction retroactively include those who were sentenced in compliance with the career criminal sentencing guidelines. Those guidelines are from the sentencing guidelines that were affected by this amendment, so they don’t receive the two-level reduction.