As a federal criminal defense lawyer and former federal prosecutor, Attorney John Helms explains how the new criminal justice reform law, called the First Step Act, can benefit people charged with federal drug distribution and trafficking crimes.
Many people accused of federal drug crimes and their families have been anxiously awaiting federal sentencing reform laws that might reduce the amount of prison time faced by defendants. On December 21, 2018, President Trump signed into law the First Step Act, which mostly involves prison reform, but also includes some sentencing reform provisions. This article will explain the sentencing reform aspects, as opposed to the prison reform aspects.
The key provision of the First Step Act that relates to sentencing reform concerns the “safety valve” provision of the federal drug trafficking laws. The safety valve allows a court to sentence a person below the mandatory minimum sentence for the crime, and to reduce the person’s offense level under the Federal Sentencing Guidelines by two points.
In order to qualify for the safety valve, a person must meet the following criteria:
- Little prior criminal history.
- The crime cannot have involved a firearm, violence, or a credible threat of violence.
- The crime cannot have resulted in death or serious bodily injury.
- The person cannot have been an organizer, leader, manager, or supervisor of the drug activity.
- Before sentencing, the person must have truthfully told law enforcement about his or her involvement in the crime.
The First Step Act increases the availability of the safety valve by making it easier to meet the first requirement—little prior criminal history. Before the First Step Act, a person could have no more than one criminal history point. This generally means no more than one prior conviction in the last ten years for which the person received either probation or less than 60 days of prison time.
Section 402 of the First Step Act changes this. Now, a person is eligible for the safety valve if, in addition to meeting requirements 2-5 above, the defendant does not have:
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1- point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines.
Just by reading it, you can probably tell that this requirement is somewhat complicated. In general, it means that a person can have an unlimited number of prior convictions resulting in probation or a prison sentence of less than 60 days, without being ineligible. It also means that a person still can be eligible as long has the person has no more than two prior convictions in the last ten years involving a prison sentence of between 60-days and one year, except that any prior conviction of between 60-days and one year that involved violence makes the person ineligible, regardless of how long ago it was. Any conviction involving a prison sentence of more than one year makes the person ineligible, again, regardless of how long ago.
Here is an example of how it works. Under the old law, if within the last ten years a person had a DWI conviction for which he received probation, and a misdemeanor assault conviction for which he received probation, the person would get one point for each conviction, for a total of two points. Since this is more than one point the person was not eligible for the safety valve. Under the new law neither of those prior convictions matter for purposes of the safety valve, and the person is eligible.
Increasing the availability of the safety valve means fewer people will have to receive a mandatory minimum sentence, which means more people can receive a lower sentence than they would have before the First Step Act. This is good news for many federal drug crime defendants and their families. Whether you or a loved one qualifies for the safety valve is complicated and technical. You should consult an experienced federal criminal defense lawyer to understand how the new law might apply in a particular case.
The First Step Act is a good starting point. In my opinion, though, it does not go far enough toward fixing some of the problems with federal sentencing. I believe, for example, that the Federal Sentencing Guidelines concerning methamphetamine trafficking and distribution should be changed. Under current law, methamphetamine distribution is punished far more severely than heroin or cocaine distribution—so much so that people who are involved with relatively small amounts of methamphetamine are punished like the biggest heroin or cocaine traffickers. This is not to minimize the seriousness of methamphetamine, but the sentences for it are disproportionately severe.
If you or a loved one is charged with any kind of federal drug crime in Dallas, Fort Worth, Plano, or Sherman, Texas, it is critical to involve an experienced federal criminal defense lawyer. The laws are complicated and convictions can result in long prison terms. A federal criminal defense lawyer with expertise in federal drug cases can help you protect your rights and help you get the best possible result.