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FIRST STEP ACT

FIRST STEP ACT. ONE STEP AT A TIME. Mandatory Minimums. Amends 21 USC §841 (Sec. 410, pp. 69-72). Decreases mandatory minimums under 21 U.S.C. 841(b)(1)(A) Adds serious violent felonies as predicates to (b)(1)(A) & (B ) Defines serious drug felonies & serious violent felonies.

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FIRST STEP ACT

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  1. FIRST STEP ACT ONE STEP AT A TIME

  2. Mandatory Minimums Amends 21 USC §841 (Sec. 410, pp. 69-72)

  3. Decreases mandatory minimums under 21 U.S.C. 841(b)(1)(A) • Adds serious violent felonies as predicates to (b)(1)(A) & (B) • Defines serious drug felonies & serious violent felonies • Applies to any offense that was committed before December 21, 2018, if a sentence had not been imposed by December 21. What does it do? When is it effective?

  4. Decreases mandatory minimum from 20 years to 15 years for those with 1 prior serious drug felony or prior serious violent felony • Decreases mandatory minimum from life to 25 years for those with 2 prior serious drug felonies or serious violent felonies Mandatory Minimums in 18 USC §(b)(1)(A)

  5. Serious drug felonies • described in 18 U.S.C. 924(e)(2), • served a term of imprisonment more than 12 months, and • was released within 15 years of the commencement of the instant offense. Definitions

  6. Serious violent felonies: • described in 18 USC 3559(c)(2) or any assault which would be a felony violation of 18 USC 113 and • served a term of imprisonment of more than 12 months. • Offenses described in 3559(c)(2) include: • a federal or state offense of murder, manslaughter (not involuntary), assault with intent to commit murder, assault with intent to commit rape, aggravated sexual abuse and sexual abuse, abusive sexual contact, kidnapping, aircraft piracy, robbery as described in sections 2111, 2113, or 2118), carjacking, extortion, arson, firearms use, firearms possession as described in 924(c), attempt or conspiracy or solicitation to commit above and any other offense punishable by a maximum term of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense. Definitions

  7. Safety Valve (Sec. 402, pp. 72-73)

  8. Amends 18 U.S.C. §3553 to expand the existing safety valve. • Applies to convictions entered on or after the date of enactment, December 21, 2018. What does it do? When is it effective?

  9. Safety valve applies if the defendant does not have: • More than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; • A prior 3-point offense, as determined under the sentencing guidelines; • A prior 2-point violent offense, as determined under the sentencing guidelines • Sections 2, 3, 4, and 5 of 18 U.S.C. §3553 remain the same. • Addition of “Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.” Definitions

  10. Definition of a violent offense: “As used in this section the term ‘violent offense’ means a crime of violence as defined in section 16 that is punishable by imprisonment.” • 18 USC 16(a)- an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. • 18 USC 16(b) which says “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” was found unconstitutional by Dimaya. More on Safety Valve

  11. Fair Sentencing Act Sec. 404, pp. 74-75

  12. The Fair Sentencing Act of 2010 which became effective August 3, 2010, changed the amounts needed to trigger mandatory minimums for punishment of crack cocaine offenses. It reduced the statutory 100-to-1 drug quantity ratio of crack to powder cocaine to 18 to 1, but it was not retroactive. The trigger amounts moved from 5 grams to 28 grams for a 10 year mandatory minimum and from 50 grams to 280 grams for a 10 year mandatory minimum. The FSA, also, eliminated a mandatory minimum for simple possession. • The Fair Sentencing Act is now retroactive. A court may impose a reduced sentence as if the FSA were in effect at the time the covered offense was committed. What did it do? When is it effective?

  13. The term ‘‘covered offense’’ is defined as 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, Pub. L. No. 111–220, 124 Stat. 2372. “First Step Act of 2018,” S. 756, 115th Cong. tit. IV, § 404(a) (2018). • Relief is not available if there has previously been a Fair Sentencing Act Reduction. • Nor is relief available if there was a denial after “a complete review of the motion on the merits. • Courts are not required to grant a reduction. Definitions and Other Guidance

  14. How are these cases being handled?

  15. Stacking & 18 USC §924(c) Sec. 403, pp. 73-74

  16. (C) In the case of a violation of this subsection that occurs after a prior conviction under this subsection has become final, the person shall- • Be sentenced to a term of imprisonment of not less than 25 years; and • If the firearm involved is a machine gun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life. • This section, also, applies to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment. What did it do? When is it effective?

  17. A defendant gets a stacked/consecutive sentence only if there is a violation of 924(c) after there is a final conviction for a 924(c)offense. For example, if there is a conviction for three robberies and three 924(c)’s in the same case, there has not been a violation of 924(c) after the conviction. The change modifies only 924(c)(1)(C) which before the change applied a 25-year mandatory minimum to a successive conviction. • However, 924(c)1(D)(ii) requires a sentence to run consecutively to any other sentence. It appears that if there is an indictment with three 924(c) charges, the sentence would be 5 years plus 5 years plus 5 years. (ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed. Further explanation-

  18. Recidivism Reduction Sec. 101, 3631, 3632, 3622, 3624, 3635, pp. 3-61

  19. Within 210 days, the AG is to develop a risk assessment tool to be used in creating recidivism reduction programing. Incentives & rewards will be a part of the program. Ten days of credit for every 30s days of successful participation shall be earned for early placement in prerelease custody or supervised release. • No credit will be earned for a program completed prior to December 21, 2018. • Everyone must complete the initial intake risk and needs assessment with 6 months of the completion of the tool. What is it? When does it begin?

  20. See pages 12-25 of the statute. Following is a partial list of excluded offenses: • Assaults of certain officers or employees using a deadly or dangerous weapon or inflicting bodily injury- 18 USC 111(b) • Threats against the President- 18 USC 871 • 18 USC 924(c) • Kidnapping- Any section of Chapter 55 • Bank robbery resulting in death- 18 USC 2113(e) • Robberies and burglaries involving controlled substances resulting in assault- 18 USC 2118(c) • Carjacking- 18 USC 2119 • Sexual abuse- Any section of Chapter 109A • Failure to register as a sex offender • Sexual exploitation of children- 18 USC 2251, 2252, 2252A, 2260 • Controlled Substance offenses for which death or serious bodily injury resulted from the use of such substance • Controlled Substance offenses if the offender was an organizer, leader, manager, or supervisor • Methamphetamine and fentanyl controlled substances offenses where the offender was an organizer, leader, manager or supervisor • Several immigration offenses, including those where a person is the subject of a final order of removal Who will be able to participate?

  21. Compassionate Release Sec. 603, pp. 116-125

  22. Adds eligible terminally ill offenders (disease or condition with an end-of-life trajectory) to existing statute for elderly offenders • Not available for crimes of violence (18 U.S.C. §16a), sex offenses, or espionage (Chapter 37 of Title 18) • Must be in need of care at a nursing home, intermediate care or assisted living facility or diagnosed with a terminal illness Who is covered?

  23. After fully exhaustion of administrative rights to appeal a failure of the BOP to file a motion, or • Lapse of 30 days from the receipt of a request by the warden of the defendant’s facility, whichever is earlier. How does it happen?

  24. BOP must notify attorney, partner and family members within 72 hours of a terminal illness diagnosis. • BOP must provide an opportunity to visit within 7 days. • BOP must provide assistance in preparation of request and process the request within 14 days. Other requirements

  25. 18 USC §3582(c)(1)(A)(i) Permits defense to initiate the request in Court after administrative remedies are exhausted or a lapse of 30 days if there are “extraordinary & compelling reasons” • 18 USC §3553(a) Judge must consider to the extent they are applicable • 18 USC §3582(d)(1) Defines terminally ill • BOP Program Statement 1330.18 & Program Statements 5050.49 Administrative remedies at BOP & definition of “extraordinary & compelling” • USSC §1B1.13 Guidelines grounds for compassionate release with definition of “extraordinary & compelling” • 18 USC §3142(g) Guidelines requires consideration of safety of others & community Relevant policies, statutes, and guidelines

  26. Use of restraints on prisoners during the period of pregnancy and postpartum recovery is now prohibited. (Sec. 301, pp. 62-69 • BOP Good Time Credits increased from 47 days to up to 54 days for of each year of the prisoner’s sentence imposed by the court (Sec. 102, pp. 43-44) • Placement Close to Families (Sec. 601, pp. 115-116) • Home Confinement for Low-Risk (Sec. 602, p. 116) • Identification for Returning Citizens (Sec. 604, pp. 125-127) Miscellaneous

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