What Does the First Step Act Mean for Your Federal Drug Case?

The First Step Act is a federal law enacted in 2018 reduces the mandatory minimum sentences for non-violent drug offenders and provides some federal convicts with a clearer path toward having their records expunged. If you are facing a non-violent drug-related criminal charge in federal district court or have a non-violent federal drug conviction on your criminal record, it will be important for you to understand how the First Step Act applies to your situation.

When President Trump signed the First Step Act (FSA) into law on December 1, 2018, the enactment made headlines, but the law’s impact largely flew under the radar. There have been some noteworthy events since; but, even now, more than a year later, the First Step Act remains relatively unknown.

However, the First Step Act is critically important for federal targets, defendants, and convicts accused of non-violent drug crimes under federal law. Not only does the FSA reduce the mandatory minimum penalties for many non-violent offenders (including specifically repeat non-violent drug offenders who previously faced a mandatory life sentence), but it also opens up the possibility of expungement to more individuals. As a result, whether you are under investigation, facing charges, or facing the consequences of a conviction for a non-violent federal drug offense, it is imperative that you speak with an experienced federal defense lawyer to understand how the First Step Act applies to your case.

How Does the First Step Act Impact Your Federal Criminal Case?

The First Step Act (P.L. 115- 391) is an extensive statute that covers numerous different topics. The law’s complexity is byproduct of its bi-partisan nature, and it is one of the reasons why the law still is not well understood. However, while the FSA contains numerous provisions covering a diverse range of issues, its core provisions can be broken down into three categories.

As explained by the Congressional Research Service (CRS) in The First Step Act of 2018: An Overview, the FSA’s “three major components” are:

“(1) [C]orrectional reform via the establishment of a risk and needs assessment system at the Bureau of Prisons (BOP), (2) sentencing reform via changes to penalties for some federal offenses, and (3) the reauthorization of the Second Chance Act of 2007 (P.L. 110-199).”

These three components work together to reduce the sentences imposed upon non-violent offenders in many cases, and they afford federal prisoners new (or renewed) opportunities to reintegrate into society. For example, under the First Step Act:

  • Federal judges have discretion to sentence defendants accused of various lower-level drug crimes to less than the mandatory minimum imposed by otherwise-applicable federal law. This “safety valve” existed under previously law, but has been expanded by the FSA.
  • The mandatory minimum sentences for certain non-violent federal drug crimes are reduced significantly. This includes specifically reduced mandatory minimum sentences for repeat offenders, who face significantly longer prison terms than first-time offenders.
  • Many federal prisoners can also earn “time credits” that allow for early placement into prerelease custody, such as home confinement. This applies to prisoners convicted of various drug-related and non-drug-related federal crimes.
  • Prisoners who are not eligible to earn time credits due to the crimes for which they were convicted can earn additional visitation and other benefits through the successful completion of recidivism reduction programs.
  • Expired programs previously authorized under the Second Chance Act are now reauthorized, and in some cases modified, in order to assist certain federal convicts with substance abuse recovery, career training and mentoring, and reentry into society after serving time in federal prison.

Sentencing Reform Under the First Step Act

For individuals who are under investigation or facing prosecution for alleged non-violent federal crimes, the provisions of the First Step Act that are of the most immediate importance are its provisions regarding sentencing reform. Here, too, the FSA’s key provisions can be broken down into three main categories:

  • Changes to Mandatory Minimum Sentences
  • Expansion of the Federal “Safety Valve”
  • Elimination of the Federal “Stacking” Provision Relating to Firearm Use

1. Changes to Federal Mandatory Minimum Sentencing Requirements

Under the First Step Act, the mandatory minimum sentences for certain non-violent federal drug offenses have been reduced. This includes specifically the mandatory minimum sentences for repeat offenders. Under the FSA:

  • The 20-year mandatory minimum sentence for repeat offenders with one prior qualifying conviction is reduced to 15 years.
  • The mandatory life sentence for repeat offenders with two or more prior qualifying convictions is reduced to 25 years.
  • In order for any mandatory minimum sentence to apply, the defendant’s prior conviction must qualify as either a “serious drug felony” or a “serious violent felony.”

The First Step Act defines a “serious drug felony” as a crime that, “carr[ies] a maximum prison term of 10 years or more—for which the offender served a term of imprisonment of more than 12 months and the offender’s release from any term of imprisonment was within 15 years of the commencement of the instant offense.” The FSA defines a “serious violent felony” as a crime, “for which the offender served a term of imprisonment of more than 12 months . . . .”

2. Expansion of the Federal “Safety Valve” for Low-Level, Non-Violent Offenders

Under the pre-existing federal “safety valve,” federal judges had the discretion to impose sentences below the mandatory minimums in cases involving low-level, nonviolent drug offenses only where the defendant had a “virtually spotless criminal record[].” The First Step Act expands this safety valve, and makes certain drug offenders who have “minor criminal records” eligible for discretionary sentencing.

Drug offenses which are eligible for discretionary sentencing under the federal safety valve, as expanded by the First Step Act, include those in which:

“‘[T]he defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in Section 408 of the Controlled Substances Act, 18 U.S.C. § 3553(f)(4).’ The defendant must also establish that he or she was not ‘an organizer, leader, manager, or supervisor of others in the offense.’”

3. Elimination of “Stacking” for Use of a Firearm in Furtherance of Certain Other Federal Crimes

The First Step Act also eliminates the applicability of the federal “stacking” rule in cases involving concurrent offenses. Previously, an individual who was charged with use of a firearm in furtherance of drug trafficking could face an enhanced 25-year mandatory minimum sentence as a result of his or her firearm conviction. Now, however, the FSA provides that the stacking rule can only be applied in cases where the defendant has a prior conviction for use of a firearm and he or she has exhausted all available appellate and post-conviction remedies (or the deadlines for seeking those remedies have expired).

Understanding the First Step Act: Q&A with Federal Defense Lawyer Nick Oberheiden, PhD

Q: How does the First Step Act help first-time offenders?

While many of the First Step Act’s main provisions apply to repeat drug offenders, it also has several provisions that establish important protections for first-time offenders. These include the elimination of concurrent “stacking” as discussed above, as well as the availability of time credits and other benefits during incarceration and the reauthorization of Second Chance Act programs.

Q: How can I make sure the government applies the First Step Act in my federal drug case?

The First Step Act’s sentencing provisions should apply automatically, and federal prosecutors and judges should be familiar with the act’s effects on federal drug cases. However, in order to ensure that you receive the maximum benefits afforded by the First Step Act, it will be important for you to hire an experienced federal criminal defense attorney. This is particularly true if you are eligible for the federal “safety valve” and need to ask the judge to exercise his or discretion to impose a below-minimum sentence.

Q: How can I obtain time credits (or other benefits) under the First Step Act if I am currently serving my federal sentence?

In order to obtain time credits under the First Step Act, you will need to file an appropriate request with the U.S. Bureau of Prisons (BOP); and, if the BOP denies your request, you may need to take additional steps in order to secure early eligibility for placement into prerelease custody. Once again, we strongly advise that you discuss your situation with an experienced attorney. Even if you are serving time for a violent crime, terrorism, espionage, human trafficking, sexual exploitation, fraud crime, or high-level drug offense that makes you ineligible for time credits, you should still speak with an attorney about your rights under the First Step Act.

Q: How does the First Step Act impact my eligibility for expungement?

While the First Step Act does not directly address federal expungement, its provisions could have indirect impacts on your expungement eligibility. Please contact us for a free initial consultation to learn more.

Speak with a Federal Criminal Defense Lawyer at Oberheiden, P.C.

If you would like to speak with a lawyer about your rights under the First Step Act, we encourage you to get in touch. To schedule a free initial consultation with a senior federal criminal defense lawyer at Oberheiden, P.C., please call 214-692-2171 or request an appointment online today.

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