Under the First Step Act of 2018, some federal offenders incarcerated for crack cocaine offenses became eligible for a sentence reduction. Before this week, eligible offenders were:
(1) convicted before August 3, 2010,
(2) of an offense involving cocaine base (crack), and
(3) the quantity of crack cocaine was greater than 5 grams.
The Department of Justice originally took the position that offenders convicted of a crack cocaine offense involving less than 5 grams were not eligible for a sentence reduction, and could not file a petition for sentence reduction pursuant to the First Step Act of 2018.
However, the Department of Justice reversed this position on Monday, March 15, 2021, in a pending appeal in the United States Supreme Court. The DOJ now states that it considers low-level crack offenders to be eligible for sentence reduction under the First Step Act of 2018.
This means that if you or someone you know is serving a sentence for a federal offense committed before August 3, 2010, involving 5 grams or less of crack cocaine, you may be able to petition the district court for a sentence reduction.
The details of the policy change are a bit complicated. There are three sentencing tiers under 21 U.S.C. § 841(b)(1). Prior to August 2010, an individual convicted of a federal offense involving cocaine base (crack) faced a sentencing range of ten years-to-life if the amount involved 50 grams of crack or more. 21 U.S.C. § 841(b)(1)(A). An individual convicted of a federal crack offense involving between 5 grams and 50 grams faced a sentencing range of 5-to-40 years. 21 U.S.C. § 841(b)(1)(B).
After the enactment of the Fair Sentencing Act of 2010, the 10-to-life sentencing range applied to offenses involving 280 grams or more of crack (rather than 50g or more). And the 5-to-40 sentencing range applied to offenses involving 28g to 280g of crack (rather than 5g to 50g). However, individuals who were sentenced before August 2010 could not petition for re-sentencing under the Fair Sentencing Act because the law did not apply retroactively.
The three sentencing tiers looked a little like this:
| Tier | Before the Fair Sentencing Act of 2010 | After the Fair Sentencing Act of 2010 |
| Tier 1
§ 841(b)(1)(A) Sentence range: 10-to-life |
≥ 50 grams crack cocaine | ≥ 280 grams crack cocaine |
| Tier 2
§ 841(b)(1)(B) Sentence range: 5-to-40 yrs |
5-50 gramscrack cocaine | 28-280 gramscrack cocaine |
| Tier 3
§ 841(b)(1)(C) Sentence range: 0-to-20 yrs |
0-5 gramscrack cocaine | 0-28 gramscrack cocaine |
Yet, in December 2018, Section 404 of the First Step Act made the Fair Sentencing Act of 2010 retroactive. This meant that an individual who was serving time for a pre-August 3, 2010 crack offense involving 50 grams (and who was sentenced pursuant to § 841(b)(1)(A), which required a sentence between ten years and life) could petition the district court to re-sentence him or her under the post-2010 sentencing requirements. Or an individual serving time for a pre-August 3, 2010 crack offense involving between 5 and 50 grams (and who was sentenced pursuant to § 841(b)(1)(B), which required a sentence between 5-to-40 years) could petition the district court to re-sentence him or her under the post-2010 sentencing requirements.
What was unclear was whether federal offenders convicted of an offense involving less than 5 grams of crack cocaine were eligible for resentencing since the enactment of the First Step Act. Based on the DOJ’s March 15, 2021 announcement, it appears that the answer is yes.
If you or someone you know was convicted of a low-level crack offense, that person may be eligible to seek a sentence reduction, which could even make him or her eligible for immediate release. Dysart Willis Houchin & Hubbard represent inmates across the country in seeking early release from prison. Although different from the First Step Act discussed in this article, attorney Linsay Boyce has successfully secured the early release of numerous clients through compassionate release petitions. Our firm can help you navigate these requirements and represent you – or an incarcerated friend or family member – in seeking a reduction of your federal prison sentence.
If you believe that you or a friend or family member may qualify for a sentence reduction under the First Step Act of 2018, our office is willing to speak with you about your case. Call 919-747-8380 to discuss your matter with an attorney at Dysart Willis Houchin & Hubbard today.