2014 Sentencing
Guidelines
Update
G. Alan DuBois
First Assistant
Federal Public Defender for the
Eastern District of N.C.
Where Do We Stand?
What is the “Minus 2”?
• Sentencing Commission dropped the Drug
Guidelines by two levels for all drugs.
• Not just crack.
• Doesn’t affect very top or bottom of table.
• BOL range floors no longer pegged to mandatory
minimums.
• So, ranges after acceptance may be lower than
mandatory minimum.
How Does it Affect Defendants
Who Haven’t Been Sentenced Yet?
• Will apply to all Defendants sentenced after
November 1, 2014.
• What about Defendants who are scheduled to be
sentenced between now and November 1?
• DOJ says Gov’t will not oppose a two-level
reduction in certain cases sentenced before
November 1, 2014.
What About Defendants Who’ve
Already Been Sentenced?
• Last Friday, the Sentence Commission voted to make the
“minus 2” amendment retroactive.
• Applies to all eligible Defendants.
• Rejected DOJ proposals to limit relief to Defendants in Criminal
History Categories I and II.
• Courts can start processing and ordering retroactive sentence
reductions on November 1, 2014.
• But……
Delayed Release in
Retroactive Cases
• No immediate release in retroactive cases.
• While courts can start entering orders on November 1,
2014, no order retroactively reducing a defendant’s
sentence can take effect before November 1, 2015.
• Effectively, there is a one year delay before anyone can
be released.
• Any defendant with a release date before November 1,
2015 gets no relief.
Retroactive Cases:
How Many Are Eligible?
• Nationwide:
51,141*
• Eastern NC:
• Middle NC:
• Western NC:
1178
456
699
(10th in U.S.)
(36th in U.S.)
(20th in U.S.)
* All numbers from the Sentencing Commission, May 2014.
Who is Eligible?
What Kind of Drugs?
How Big a Cut?
What is the Average Cut?
• Average Reduction: 18.4%
• 35% of Defendants will receive cut of
one year of less.
• 4.9% of Defendants will receive cut of
more than 60 months.
What is the Effect of the Delay?
Basically some Defendants get
hosed.
OK, Who Gets Hosed in My
District?
• EDNC:
o
Immediate Release:
o
Release within one year:
• MDNC:
o
Immediate Release:
o
Release within one year:
• WDNC:
o
Immediate Release:
o
Release within one year:
7.4% of those eligible for relief (86 Defs)
9.1% (106 Defs)
10.6% of those eligible for relief (48 Defs)
14% (63 Defs)
13.2% of those eligible for relief (90 Defs)
13.6% (93 Defs)
Bottom line: the closer you are to release, the more likely you
are to get screwed.
How About Some Examples?
• Defendant Joe Blow:
o Files motion on November 1, 2014.
o Due for release August 15, 2015.
o Eligible for 12-month cut under new guidelines.
o No Relief! Joe will be out be for any order cutting his sentence can take
effect.
• Defendant Jon Snow:
o Files motion on November 1, 2014.
o Due for release December 25, 2016
o Eligible for 24-month cut under new guidelines
o Partial Relief! Reduction would call for out date in December 2014 but
order can not take effect until November 1, 2015 so Jon could be
released that day but no sooner.
What Do I Need to Do?
• This is just like the Crack Amendment and FSA retroactive
reductions.
• Nothing in 18 U.S.C. § 3582(c) has changed.
• Nothing in U.S.S.G. §1B1.10 has changed except the one
year delay.
• Same eligibility requirements, same limitations on relief.
• Each district will develop its own procedures.
So, What Else Is New?
• Amendments to the Felon-in-Possession crossreference: Limited to guns listed in indictment.
• Failure to register as sex offender is not a sex
offense.
• Courts can run sentences concurrent to related
state sentences that have not yet been
imposed.
What’s Next?
• Nothing huge on the horizon.
• May take a look at mitigating role.
• Continue various studies.
• Some promising legislation but not
much happening.