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Time Credits and Freedom from Federal Prison: Is the Justice Department Thwarting Early Release for Inmates Under the First Step Act?

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A year has come and gone since the First Step Act (FSA) was passed to change the way that federal prisoners can achieve an early release from prison.  Officially, the First Step Act of 2018 became law on December 21, 2018. See generally, First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5194-249 (2018).

Essentially, the FSA provides four (4) different ways for incarcerated federal inmates to be freed earlier than their established prison sentence.  These are:

  • Sentence reduction;
  • Time Credit given after successful participation in a recidivism reducing program;
  • Compassionate grounds; and
  • Age (elderly offenders).

For more details regarding the First Step Act, read our two-part discussion: “The First Step Act and Texas Criminal Defense in 2019: Part 1 of 2,” and “The First Step Act and Texas Criminal Defense in 2019: Part 2 of 2.”


Federal Sentencing: Sentencing Commission and the Bureau of Prisons

Of course, the First Step Act only applies to federal cases, where someone is arrested, charged, and sentenced in a federal courtroom.  For federal prisoners, their sentences are calculated using the Federal Sentencing Guidelines, which are overseen by the United States Sentencing Commission.

For details on the federal sentencing guidelines process, including illustrations taking the reader through the Sentencing Manual, see:

Thereafter, sentence computations for individual inmates in federal facilities are the responsibility of the federal Bureau of Prisons.  (All private prisons (other than FCI Rivers) handle their own calculations of good time for their inmates.)

Specifically, calculations are made at the BOP’s Designation and Sentence Computation Center (DSCC) located in Grand Prairie, Texas.  The inmate’s sentence is calculated using established BOP protocols, outlined in:

  1. P5880.30, Sentence Computation Manual/Old Law/Pre CCCA 1984;
  2. P5880.28, Sentence Computation Manual (CCCA 1984); and
  3. P5880.32, District of Columbia Sentence Computation Manual.

Appeals of sentence computations proceed through Administrative Remedies within the BOP.

Under the old system of good time credits, the pre-FSA process, the BOP reductions were basically 85%.  With the First Step Act’s new version of things, more inmates are to be freed with a successful request for early release.

Looking back over the past year, has this happened?

In December 2019, many are sounding an alarm that Criminal Defense Lawyers must heed.  More and more, it appears that the Department of Justice is – in the words of a recent Dallas Morning News editorial – “gumming up the inner workings” of the First Step Act. 

Read, “Is the Federal Bureaucracy Thwarting the Will of Trump and Congress on Prison Reform?published by the Dallas Morning News on November 14, 2019.

Justice Department Argues Dodgy Reading of FSA

In an expose by reporters Neena Satija, Wesley Lowery, and Josh Dawsey for the Washington Post, it appears things are wonky in how the FSA is being administered by the DOJ.  Read, “Trump boasts that his landmark law is freeing these inmates. His Justice Department wants them to stay in prison,” published by the Washington Post on November 7, 2019.

According to WaPo, while the FSA’s goal is correcting unfairness in federal drug sentencing as it applies to nonviolent offenders by allowing them a faster return to freedom, the DOJ response in FSA application doesn’t jive with that goal.

AUSAs are, in fact, trying hard to stymie First Step Act applications in all sorts of cases.  From the WaPo expose, it appears that federal prosecutors are:

  1. Arguing that the FSA is not applicable to the particular case; and
  2. Arguing that offenders released under FSA calculations should be returned to prison.

Apparently, this is happening in hundreds of cases, not just one or two.  The DOJ is taking the position that the First Step Act requires judges reviewing cases where inmates are asking for reduced sentences to look at the amount of illegal drugs (controlled substances) that the evidence suggests the individual might have had, instead of the actual amount he or she was convicted of possessing.

From a defense perspective, of course, the text of the First Step Act does NOT explicitly state that the judge must consider the actual amount of the drug the offender was alleged to possess.  Instead, the DOJ’s position is a blatant attempt to try and keep the FSA from applying to as many cases as possible.

Defense lawyers will be needed to fight against the DOJ stance, of course, so that the First Step Act can be applied as it is intended – to help nonviolent offenders achieve an early release from federal prison.

  • The First Step Act provides that a sentencing court “may . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed.” FSA § 404(b), 132 Stat. at 5222.
  • A “covered offense” is “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.” FSA 404(a), 132 Stat. at 5222.

Proper application of the First Step Act can be achieved for the federal inmate in a hearing before the district court judge on a defense Motion for a Reduced Sentence under the First Step Act of 2018.  If need be, defense arguments will also be required at the appellate level.

Appellate Court Review of First Step Act Application

How are federal appellate courts explaining the application of the First Step Act?  This answer will be more definite after more time has passed – this is still a very new issue.

Fifth Circuit: Court to Decide on New Sentence Based Upon Time Frame of Original Sentencing

In United States v. Hegwood, 934 F.3d 414, 418 (5th Cir. 2019), the Fifth Circuit Court of Appeals explains application of the First Step Act in the following clear directive:

The mechanics of First Step Act sentencing are these. The district court decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act.

“The district court’s action is better understood as imposing, not modifying, a sentence, because the sentencing is being conducted as if all the conditions for the original sentencing were again in place with the one exception. The new sentence conceptually substitutes for the original sentence, as opposed to modifying that sentence.”

Sixth Circuit: Judicial Discretion in Application of FSA

In a case out of the Sixth Circuit Court of Appeals, the federal appeals court give some guidance here (note:  hat tip to Sentencing Law and Policy  for its speedy reference to last week’s opinion).  The big point: the trial judge’s use of discretion in these cases.

In United States v. Beamus, No. 19-5533 (6th Cir. Nov. 21, 2019), after discussing the three tiers of federal legislation that apply here: (1) USSG Reductions; (2) Fair Sentencing Act; and (3) the First Step Act, clarifies as follows:

“The First Step Act ultimately leaves the choice whether to resentence to the district court’s sound discretion.… In exercising that discretion, a judge may take stock of several considerations, among them the criminal history contained in the presentence report. How do these considerations play out for Beamus? That’s a question only the district court can answer. We reverse and remand to give it the opportunity to do so.”

Defending Federal Inmates in Federal Resentencing Under First Step Act

Today, sentence reductions are to be calculated with the goal of helping nonviolent offenders achieve their freedom.  Defense attorneys must be extremely aggressive in their advocacy for these federal inmates, considering not only the DOJ attitudes towards FSA early release, but also the reality that many are still trying to understand the nuances of the FSA’s application and how it works for a particular case.

Understanding the Reforms of the First Step Act

In sum, the FSA allows a retroactive application of statutory changes in order to reduce federal crack cocaine sentences put in place by the Fair Sentencing Act of 2010.  The FSA also provides for four other major sentencing reforms. First, it changes things for inmates convicted for either their second or third drug offense.

FSA: Conviction for Second Drug Offense

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

FSA: Conviction for Third Drug Offense

Under the FSA, the old federal law found in 21 U.S.C. §§ 841 et seq. that provided for a mandatory life sentence upon conviction of a third drug offense is changed so those convicted on their third (3rd) federal drug offense face a mandatory minimum sentence of 25 years.  The FSA 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.”

The FSA also deals with “Stacking” of Sentences by AUSAs

Federal prosecutors are infamous for their strategy of maximizing prison time by “stacking” mandatory minimum sentences through multiple counts as defined in 18 U.S.C. § 924(c).  The higher the stack, the longer the time in prison.

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.

The FSA Expands Safety Valves for Drug Offenses

Federal judges can sometimes rule outside the statutory sentencing minimums. One of these exceptions is the “safety valve” for a defendant 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).

Under this exception, 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.  18 U.S.C. § 3553(f)(1)–(5).

The FSA expands the safety valve exception.  Under the FSA, the “safety valve” can be applied to more defendants, allowing judges to 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.  For more on Safety Valves and sentencing guideline calculations, see “Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases.”

First Step Act: Criminal Defense

Experts are considering the FSA to be a success, and more criminal justice reform bills are in the works.  For instance, the Smarter Sentencing Act, a bill intended to further reduce drug mandatory minimum sentences, was reintroduced in the Senate last week.

However, many hurdles exist in the implementation of the First Step Act here in Texas and elsewhere.  All too often, judges are working to understand the extent of the FSA’s application in the particular matters that are brought before them.  Appellate guidance is scant.

Additionally, as the Washington Post expose confirms, there is an attitude among many federal prosecutors that those who have been convicted should stay behind bars – and application of FSA early release should be minimized as much as possible.

This leaves the criminal defense bar with the job of understand in detail the First Step Act with all its reforms and how best this new federal legislation can benefit our clients.

It’s confusing for many.  One tool for federal defense lawyers is the 2019 Federal Good Time Table created by attorney Dan Hesler of the Chicago Federal Defender Program, shown here and shared online as a public service in my digital library.

   Good Time Table 2019 by Michael Lowe, Attorney at Law on Scribd

We are fast approaching the one-year anniversary of the First Step Act of 2018.  This criminal justice reform bill works to help many incarcerated inmates and their families move forward in life, and understanding how to apply and fight for FSA early release for federal prisoners is a worthy, if frustrating, effort.


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”









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