The federal government's focus on criminal justice reform has resulted in Congress passing the First Step Act, which has made substantial changes to several aspects of federal criminal laws. A notable change is the application of sentencing guidelines to federal offenses.

A highly significant change in sentencing applies to a second and subsequent convictions for drug-related crime. Under the previous law, if you were convicted of a third drug offense under 21 U.S.C. §§ 841/851, you could be facing a mandatory life sentence.  The First Step Act has reduced this sentencing provision to a 25-year mandatory minimum.

Clearly, this recent deduction still represents a significant sentence, but still much less than life in a federal prison. Another significant change is the legal definition of drug crime that would trigger a mandatory minimum sentence has been redefined.

Before, the third drug-related crime could include even a low-level state drug crime. Now, under the First Step Act, qualifying, previous drug offenses must be a felony drug crime or a serious violent felony offense. 21 U.S. Code § 848 defines the crime of continuing criminal enterprise.

Whenever there are new laws that affect sentencing, it's common to expect future litigation designed to clear up any confusion on exactly which State and federal prior convictions will fall into the new categories.

Another reform deals with the previous 20-year mandatory minimum for a second drug offense under 21 U.S.C. § 841/851. Under the First Step Act, it has now been reduced to a 15-year mandatory minimum.

Just like the first reform discussed above, the category of a qualifying prior offense has also been changed to felony drug crime or a serious violent felony. It should be noted these reforms to drug crime sentencing only apply to future cases. In other words, they are not retroactive re-sentencing provisions.

Stacking Allegations Eliminated

A substantial reform under the First Step Act is the elimination of 18 USC § 924 stacking.  In federal sentencing, 924 stacking is referring to using multiple 18 U.S.C. § 924(c) allegations – which is considered a serious firearm-related offense – in the same case.

Before, multiple § 924 convictions in the same case – even if it was a first offense – could trigger a 25-year mandatory minimum prison sentence.

Now, under the First Step Act, it prevents this type of “stacking,” and ensures a mandatory minimum is only triggered in a situation of § 924 convictions in a second or subsequent case.  Also, a first-offender is not exposed to a 25-year mandatory minimum sentence.

Again, just like the other drug crime reforms discussed above, the § 924 stacking reform is not retroactive for anyone with prior convictions. This means the recent change in law will not provide any type of relief for anyone currently serving 25-year mandatory minimum prison sentences that were based on a first offense conviction involving multiple § 924(c) counts.

Crack Cocaine Resentencing

One significant reform under the First Step Act which is retroactive is the changes to crack cocaine guidelines calculations that were enacted in 2010. They can now be raised in a resentencing position by a defendant who was sentenced in a crack case before 2010.

In other words, this reform has the potential to provide major relief for those whose guideline sentences were compared to a defendant in possession or selling a similar amount of powder cocaine.

Many people are very familiar with the infamous controversy over the disparate treatment of crack and powder cocaine offenders. There have been many claims for decades they were based on racial animus and had a disproportionate impact on defendants of color.

Under the First Step Act, it expands the relief first enacted in 2010 because it allows retroactive application. This means it opens a major avenue of relief for any defendant still serving long crack cocaine-related sentences from before 2010.

Expands Elder and Compassionate Release

The First Step Act also substantially expands the opportunity for elder and compassionate release, which had long existed under federal law.

However, Congressional lawmakers decided the current guidelines needed to be expanded in order to provide additional opportunities for early release for elderly and disabled inmate, and for anyone who is suffering from a terminal or serious illness.

It should be noted that whether or not an inmate would qualify for this type of release is a fact-based determination that will always depend on detailed facts and circumstances of their situation.

This will include their conduct while in custody, length of the sentence, and the exact nature of the illness. Typically, however, a non-violent offender who is over 60 years old that has completed around two-thirds of their federal prison sentence will qualify to submit a petition for early release.

Federal Criminal Defense Attorney

As you can see from the reforms listed above, the First Step Act is a primary component of the federal government's effort for criminal justice reform. It provides a significant relief opportunity for federal criminal defendants, and also provides opportunities for retroactive relief for anyone who is already serving a federal prison sentence.

If you or a family member is currently facing federal criminal charges or is already serving time in federal prison, contact our federal criminal defense attorneys for a consultation to review potential application of the First Step Act to the federal case.

Eisner Gorin LLP
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Los Angeles, CA 90067
310-328-3776

Related Content:

• Federal Prison Inmate Counts
• Presentence Report
• First Step Act
• Amendment 821
• Updates to the Sentencing Guidelines for 2023