Law Offices of Frank J. Riccio LLC 923 East Main Street Bridgeport, Connecticut 06608 Phone: 203-333-6135 Fax: 203-333-6190
FEDERAL SENTENCING GUIDELINES, THE FAIR SENTENCING ACT OF 2010 AND CRACK RETROACTIVITY
Frank J. Riccio, II, Esq. August 2011
Congress passed the Fair Sentencing Act of 2010, effective August 3, 2010, that, among other things, increased the quantities of crack cocaine that trigger the five and 10-year federal statutory mandatory minimums penalties.
The Act gave the Commission emergency amendment authority to temporarily change the guidelines to implement the statutory changes and to add certain enhancements and reductions to the sentencing guidelines. The temporary emergency amendment went into effect on November 1, 2010 and will expire on October 31, 2011.
On April 28, 2011 the Commission submitted to Congress the proposed permanent guideline amendment implementing the Fair Sentencing Act. The proposed permanent amendment will go into effect on November 1, 2011, unless Congress acts to modify or reject the amendment.
On June 30, 2011 the Commission voted to give retroactive effect to the proposed permanent guideline amendment. The effective date of this retroactive effect and changes to §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range), the policy statement governing retroactivity, is November 1, 2011. Until that date, the courts will apply §1B1.10 as set forth in the 2010 Guidelines Manual.
A popular question many ask is the following:
Will all defendants who have been convicted of distributing or possessing crack cocaine automatically receive a reduction because of the Commission's decision on retroactivity?
No one will automatically receive a sentencing reduction. Title 18 U.S.C. § 3582(c)(2) provides that upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment. In order to be eligible for a sentence reduction, a defendant must be serving a term of imprisonment, and the guideline range applicable to the defendant has been lowered as a result of the crack cocaine amendment. In addition, even if a defendant is eligible for a reduction, a district court judge has the final decision of whether to reduce the sentence. Please contact The Law Offices of Frank J. Riccio LLC to assist in implementing the retroactivity provision of the Fair Sentencing Act.
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