The First Step Act and Texas Criminal Defense in 2019: Part 1 of 2

What Texas Criminal Defense Lawyers – and Their Clients – Need to Know About the New Federal Sentencing Reforms

On December 21, 2018, the First Step Act (“FSA”) was signed into law. The FSA’s sentencing and compassionate release provisions become effective on that date; other parts of the Act are phased into law over the next three (3) years.

Anyone sentenced in federal court for the violation of a federal criminal law after December 21, 2018, should automatically see the sentencing reforms defined in the First Step Act applied to their sentence.  It will be a basis for appeal should this not happen. 

Overview: What is the First Step Act?

The First Step Act is a federal law impacting federal criminal matters. It changes (“amends”) the federal sentencing laws.  It also changes things in the federal prison system.

The full text of the First Step Act of 2018 is available online in pdf format.

1.  FSA Does Not Change State Law

The First Step Act does not impact state jurisdictions.  It does not reform or change the current sentencing provisions of Texas Criminal Law.

2.  FSA Reforms Federal Sentencing

The FSA is a major reform of the current federal sentencing system.  Judges, prosecutors, prison officials, law enforcement agencies, and criminal defense lawyers (as well as their clients) are all in the process of understanding the full impact of the FSA on federal criminal cases in Texas (and the rest of the country).

Everyone is under a learning curve.  For instance, in May 2019, the United States Sentencing Commission (USSC) will hold a National Seminar for Judges in New Orleans, Louisiana, to discuss implementation of the First Step Act.

3.  Who Benefits From the First Step Act?

Within the federal system, every prisoner serving time in a federal facility will want to investigate the First Step Act for its application to their particular circumstances.  Most every federal prisoner may be able to benefit from some of the FSA’s provisions.  For instance:

• There is no exclusion placed upon increased good time credits, unless the prisoner is serving a life sentence.
• The compassionate release reforms of the First Step Act may apply to the federal prisoner.
• The 500 driving mile rule instituted by the First Step Act may benefit many federal prisoners and their families.

However, for those who have been convicted of certain violent federal crimes or sentenced based upon federal sex offenses, then the First Step Act reforms can be more limited.  It may be argued as endangering the public to ease sentencing provisions involving certain violent crimes and sex offenses via the FSA.

4.  Major Change: Time Credits

One major reform enacted by the new First Step Act is giving some people currently serving time in federal prison facilities the ability to earn time credits through the completion of rehabilitation programs.

Prisoners earn days of credit, which are then redeemed so they can move from incarceration into supervised release, home confinement, or halfway houses.  (Details of how this works are discussed in the second part of our discussion, Part 2.)

5.  Another Five Sentencing Changes

Other FSA reforms include changes to how prisoners are treated while incarcerated in the federal system and five (5) sentencing changes.  Four of these reforms are effective on December 21, 2018.  The fifth (an amendment to the Fair Sentencing Act of 2010) applies retroactively.

First, we’ll discuss these five sentencing reforms.  Then we’ll delve into the First Step Act’s reforms regarding time credits (earned time credits and good time credits).

The 5 Sentencing Reforms in the First Step Act

The First Step Act changes five federal laws regarding sentencing in serious felony charges.  See, Title IV of the First Step Act (Sections  401 – 404).

1.  Conviction for Third Drug Offense

Before the FSA, the federal law found in 21 U.S.C. §§ 841 et seq. provided for a mandatory life sentence upon conviction of a third drug offense.  The FSA changes this.

Now, those convicted on their third (3^rd) federal drug offense face a mandatory minimum sentence of 25 years.  It also clarifies that this mandatory sentence (as of the effective date of the Act) applies to someone with 2 or more prior convictions involving either (a) a “felony drug offense” or (b) a “serious violent felony.”

2.  Conviction for Second Drug Offense

Before the FSA, the same federal law (21 U.S.C. §§ 841 et seq.) required a mandatory minimum sentence of 20 years federal incarceration for those convicted of their second (2^nd) drug offense under federal law.

Now, the number of years is lowered to 15 years behind bars.  The FSA also changes things so this mandatory 15 year sentence applies only to those who have one prior conviction for either (a) a “felony drug offense” or (b) a “serious violent felony” on their records.

3.  Stacking Under 18 U.S.C. § 924(c) Firearms Offense

Federal law 18 U.S.C. § 924(c) has been controversial insofar as its “stacking” issue.  For details, check out the United States Sentencing Commission’s “Quick Facts” which includes statistics showing the average length of time those convicted for firearms offenses under 18 U.S.C. § 924(c) faced was 165 months behind bars.

What is stacking?

For details on how stacking works, read our earlier discussion in “Mandatory Minimum Penalties in Federal Sentencing” and “Guns and Drug Trafficking:  Firearms and Mandatory Minimum Sentences under Federal Law.”

Essentially, federal prosecutors have been notorious for trying to “stack” mandatory minimum sentences by charging the accused with multiple counts as defined in 18 U.S.C. § 924(c).  This resulted in the accused, upon conviction, being forced to serve those multiple convictions on the firearms violations consecutively to any other sentences imposed for conviction on other underlying offenses (like drug trafficking, for instance).

The higher the stack, the longer the time behind bars.

The First Step Act changes this for future firearms sentencing in federal courts.  Under the FSA, the defendant cannot get a 25-year mandatory sentence for any stacked (second or subsequent) offense under 18 U.S.C. § 924(c) if they are being sentenced in their first criminal proceeding for a firearms violation as defined by 18 U.S.C.§ 924(c).  Note:  it is possible for the judge to sentence someone to a mandatory 25 year sentence if they are convicted of firearms offense under 18 U.S.C. § 924(c) after serving a sentence for a prior 924(c) offense.

4.  Expansion of Safety Valve for Drug Offenses

Sometimes, federal law allows the judge to rule outside the statutory minimums when sentencing someone to prison for violating federal criminal statutes.  One of these occasions involves the “safety valve” when the defendant has been convicted on federal drug charges under (1) section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or (2) section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963).

Here, the judge is allowed to sentence the individual to less than the number of months (years) given as the minimum sentence under the drug crime statutes.  See,  18 U.S.C. § 3553(f)(1)–(5); US v. Phillips, 382 F.3d 489 (5th Cir. 2004).

For more on how “Safety Valves” work, read our discussion in “Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases.”

The First Step Act broadens the safety valve exception for those convicted on federal drug charges under the Controlled Substances Act.  Under the FSA, the “safety valve” can be applied to more defendants than before.

Now, judges may also use the “safety valve” for defendants who have up to 4 criminal history points (not counting one-point offenses), as calculated under the U.S. Sentencing Guidelines.  They cannot apply the safety valve to anyone with a 3-point offense or with a 2-point offense.

What are Offense Points in Sentencing?

Judges must calculate individual sentences by referring the Federal Sentencing Guidelines prepared and overseen by the United States Sentencing Commission.  For more on how these offense points are calculated under the Federal Sentencing Guidelines in order to reach a sentence in a drug case, read “Federal Sentencing Guidelines: Conspiracy To Distribute Controlled Substance Cases” where calculations under the Guidelines are explained, complete with images taken from the actual Sentencing Tables as reference.

5.  Fair Sentencing Act Reforms for Crack Cocaine

The First Step Act has amended provisions of the Fair Sentencing Act of 2010.  The Fair Sentencing Act changed sentencing for those convicted on charges involving possession of crack cocaine.  The First Step Act broadens its application, allowing more prisoners access to its provisions.

Fair Sentencing Act of 2010

Before the Fair Sentencing Act of 2010, things were very serious for anyone convicted of possessing crack cocaine in a federal proceeding.  If they were convicted of possessing 50 grams or more of crack cocaine, then they faced a 10-year mandatory minimum to life sentence.  If they were convicted for 5 grams, then they faced a 5-year mandatory minimum to 40 years behind bars.

The Fair Sentencing Act of 2010 reforms this situation.  Justice in the sentencing for these crack cocaine defendants was improved by the passage of this federal statute.

It does this in two ways.  First, the Fair Sentencing Act of 2010 ends that 5 year mandatory minimum for simple possession of crack cocaine. Second, it ups the weight ranges defined in the sentencing guidelines for crack cocaine.

This law helped many people who were caught with crack cocaine in their possession, but obviously were not holding the drug for purposes of sale or distribution.

For more on the Fair Sentencing Act of 2010, read the United States Sentencing Commission’s 2015 Report to The Congress: Impact of the Fair Sentencing Act Of 2010.

First Step Act Expands Fair Sentencing Act

The Fair Sentencing Act increases fairness in drug cases involving crack cocaine.  But it was not allowed to be applied retroactively.

This is what the First Step Act does.  It is the necessary federal law that allows this fairness in sentencing to be applied to those convicted and sentenced before the effective date of the Fair Sentencing Act, which is August 3, 2010.

Now, if someone has been convicted in federal court for simple possession of crack cocaine, they no longer face a mandatory minimum sentence. The judge has more leeway in deciding their punishment.  The Fair Sentencing Act of 2010 does increase the statutory fines in these cases, to balance out that removal of the mandatory minimum in prison time.

With the First Step Act, the Fair Sentencing Act of 2010’s reforms regarding crack cocaine charges are to be applied to cases where people are currently in federal prisons after being sentenced under the prior drug laws.

Motion for Resentencing

These individuals can return to the federal district court where they were sentenced and file a Motion for Resentencing Pursuant to the First Step Act of 2018.  They must have been sentenced for crack cocaine (the only drug applicable here) and have been sentenced before August 3, 2010.

Note:  the right to file the motion is allowed by the First Step Act.  The judge is not automatically required to change the sentence.  Only one motion will be allowed to be filed; the crack cocaine prisoner only gets one bite at this apple.

Additional Reform: First Step Act Changes the 500 Mile Rule

There was no specific federal law on the books that requires federal prisoners to be put into federal facilities that are close to their families or loved ones.  To be fair, the Bureau of Prisons had a longstanding policy to help here, and would try and house prisoners within a 500 mile radius of their families.

Old 500 Mile Policy of the Bureau of Prisons

To read the Federal Bureau of Prison’s 500 Mile Policy (in effect before the First Step Act) go here, where the policy is defined as:

The Bureau attempts to designate inmates to facilities commensurate with their security and program needs within a 500-mile radius of their release residence. If an inmate is placed at an institution that is more than 500 miles from his/her release residence, generally, it is due to specific security, programming, or population concerns. The same criteria apply when making decisions for both initial designation and re-designation for transfer to a new facility.

Appropriate Facility

The appropriate prison facility is described as follows meeting the following characteristics, as determined by the Bureau.

Inmates are designated/re-designated to institutions based on:

• the level of security and staff supervision the inmate requires,
• the level of security and staff supervision the institution provides,
• the medical classification care level of the inmate and the care level of the institution,
• the inmate’s program needs (e.g., substance abuse treatment, educational/vocational training, individual and/or group counseling, medical/mental health treatment), and
• various administrative factors (e.g., institution bed space capacity; the inmate’s release residence; judicial recommendations; separation needs; and security measures needed to ensure protection of victims, witnesses, and the general public).

While this Bureau of Prisons Policy was intended to help families with their visits to the prisoner, keeping parents interacting with their children and marriages surviving the period of incarceration, the reality was that the 500 mile rule sometimes did not help much.

The 500 Mile Rule “radius” as determined on a map did not consider the actual routes needed to be taken in order to reach the facility.  The policy would often result in travel distances that were much longer than 500 miles in actual road miles.

First Step Act Changes Policy into Law

The First Step Act changes this.  Now, federal law requires the Bureau of Prisons to put prisoners in a facility that is with within 500 driving miles of their post-release residence if it is at all feasible to do so.

In other words, if the Bureau has a place with the appropriate security protocols and there is a bed available for that inmate, then he or she needs to be placed in the facility that is within 500 driving miles of their post-release residence.

Moreover, if things change and a spot opens up in an appropriate federal institution that is even closer, then the inmate needs to be moved to that facility.

Specifically, the federal law (section 601 of the First Step Act) states as follows:

Section 3621(b) of title 18, United States Code, is amended—

(1) by striking “shall designate the place of the prisoner’s imprisonment.” and inserting “shall designate the place of the prisoner’s imprisonment, and shall, subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence. The Bureau shall, subject to consideration of the factors described in the preceding sentence and the prisoner’s preference for staying at his or her current facility or being transferred, transfer prisoners to facilities that are closer to the prisoner’s primary residence even if the prisoner is already in a facility within 500 driving miles of that residence.”; and

(2) by adding at the end the following: “Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.”

Additional Reform: First Step Act and Home Confinement

Reforms to increase fairness in federal sentencing in the First Step Act also encourages the Bureau of Prisons to place inmates in home confinement in certain circumstances.

Section 602 of the First Step Act states:

Section 3624(c)(2) of title 18, United States Code, is amended by adding at the end the following: “The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.

What is Home Confinement?

If the prisoner is a low risk, then it is considered in the best interest of both the prison system and the inmate to place them within their homes for the maximum time permitted under 18 U.S.C.  §3624(c)(2).

This is federal law.  Its purpose is to help the prisoner adjust to life outside of the prison system.

The statute instructs the Director of the Bureau of Prisons that he shall, to the extent practicable, ensure that a federal prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed 12 months), under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.

This may involve a community correctional facility or home confinement.

How long can the prisoner serve his time at home?  The prisoner may be placed in home confinement for the shorter of:

• 10% percent of the term of his imprisonment; or
• 6 months.

In our next article, we will continue our review of the new First Step Act of 2019 and how it impacts criminal defense of those arrested, accused, or incarcerated on federal charges in the State of Texas.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Federal Sentencing Guidelines on Federal Child Pornography cases.”