For the Defense - Vol. 6, Issue 2 - 33
Section 404 of the First Step Act of
2018: Retroactive Relief for
Pre-2010 Crack Offenders
T
he First Step Act was a bipartisan criminal
justice
bill
signed
by
President
especially in minority communities. " 3
Donald
Trump in December 2018, comprised of both
correctional and sentencing reform provisions,
with a view toward reducing the federal prison
population.1
One of those sentencing reform
provisions, Section 404, made retroactive §§ 2 and
3 of the Fair Sentencing Act of 2010, and provided
an opportunity for eligible defendants sentenced
prior to 2010 to petition for a discretionary sentence
reduction with the district
court.2
This article
explains the impact of Section 404 on sentenced
federal prisoners and reviews the current state of
litigation with respect to eligibility and scope of
relief under the Act.
The Fair Sentencing Act of 2010 and the First
Step Act of 2018
The Fair Sentencing Act, (hereinafter " FSA " ),
enacted on August 3, 2010, was an effort to remedy
the far too harsh penalties for crack cocaine,
" restore fairness to Federal cocaine sentencing, "
and " decrease racial disparities and help restore
confidence in the criminal justice system,
The FSA, however, was not retroactive, and it
was not until passage of the First Step Act that
those sentenced for crack offenses prior to August
2010 could reap some benefit from the FSA's
statutory reform. The First Step Act allows for a
sentencing court, which has " imposed a sentence
for a covered offense, " on motion, to " 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. " 5
A " 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
[FSA]. " 6
Vol. 6, Issue 2 l For The Defense 33
Section 2
of the FSA modified the statutory penalties for
crack offenses by increasing the amount of crack
necessary to support the statutory ranges for
convictions under § 841(b)(1)(A) from 50 to 280
grams, for convictions under § 841(b)(1)(B) from 5
to 28 grams, and for convictions under § 841(b)(1)
(C) from less than 5 grams to less than 28 grams.
Section 3 eliminated the mandatory minimum
sentence for simple possession.4
Christy Martin
For the Defense - Vol. 6, Issue 2
Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 2
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