"Drugs Minus Two": Two-Level Reduction in Federal Drug Sentencing Guidelines

The United States Sentencing Commission has recently amended the Federal Sentencing Guidelines in a decision that has been called "drugs minus two."

1. "Drugs Minus Two" Overview

   Under drugs minus two, the recommended sentencing guidelines for most drug offenses have been lowered by two levels. This two level reduction will result in sentences being reduced by an average of two years for those incarcerated for most drug offenses. This is only an average and may vary from case to case. The change to the sentencing guidelines will go into effect on November 1, 2014. Individuals who are sentenced after the change goes into effect will automatically be sentenced at the reduced level. Those who have already been sentenced under the current guidelines will be eligible to file a motion to reduce their sentence retroactively.

2. Who is Eligible for the Reduction?

   The sentence reduction will only affect sentences for federal drug offenses. While the change is expected to affect approximately 70 percent of drug offenders, not all drug offenders are eligible for the sentence reduction. Offenders who received mandatory minimum sentences will not be eligible for the two level sentence reduction. This is because Congress sets and controls mandatory minimum sentences, so the Sentencing Commission cannot change them. Similarly, an offender sentenced under the Career Offender guidelines will not be eligible for the reduced sentence, because those guidelines are determined by prior felony convictions and an offense's statutory maximum, which the Sentencing Commission cannot vote to change. Other federal drug offenders who will not be affected by the change in the sentencing guidelines include those who were originally sentenced at a guideline level of 12 or lower and those whose offenses involved a very large amount of drugs. For example, quantities such as 1 lb. of powder cocaine or 2 lbs. of heroin are eligible for the two level reduction. Offenders who have already received a reduced sentence through using the safety valve are still eligible for the two level reduction if they meet the remainder of the criteria.

3. The Next Step for Eligible Offenders

   Offenders who are already incarcerated for drug offenses under the current guidelines will need to file a motion to reduce their sentence (under 18 U.S.C. 3582(c)(2).) Courts will not begin considering these motions until the change goes into effect on November 1, 2014. However, since nearly 50,000 federal offenders will be eligible for a reduced sentence under the new guidelines, the court system will need time to address these sentence changes, which means that the soonest an eligible offender would be released is November 1, 2015. Although an offender may be eligible for the sentence reduction, courts may use their discretion in granting an offender's motion. A sentence reduction will be based on different factors, such as the type and quantity of drugs involved in the offense as well as the offender's criminal history. A judge must also take public safety into consideration when determining whether or not to grant an offender's motion for the reduced sentence. Since there are a variety of factors involved in receiving a reduced sentence, if you or a loved one have been sentenced under the current drug offense guidelines it is best to immediately seek the advice of an experienced and knowledgeable federal defense attorney.