For decades, judges have sentenced first time offenders, who possessed a firearm during a drug trafficking crime or a crime of violence, to serve arduous enhanced sentences to be served back-to-back, under 18 U.S.C. sec. 924(c), in addition to serving a sentence for the underlying drug trafficking crime or crime of violence. This resulted in an average of 50 years sentence for first time offenders under Section 924(c)(1)(C). Section 403 of the First Step Act clarified that these enhanced sentences should only apply to defendants who had prior final conviction under 924(c). However, section 403 specifically provides that it only applies to an offense that was committed before December 21, 2018, if a sentence for the offense has not been imposed as of such date.
Notwithstanding the non-retroactivity of section 403,district courts are now using another provision of the First Step Act, section 603, codified at 18 U.S.C. SS 3582(c)(1)(A), to undo the harsh sentences resulting from section 924(c) stacking. Section 603 of the First Step Act amended section 3582(c)(1)(A)(i) to permit the defense to initiate a request for compassionate release based on, among other things, "extraordinary and compelling reasons." This fundamentally altered the compassionate release landscape, which had for more than three decades given BOP unreviewable discretion to file compassionate release motions on behalf of clients. Here are some recent examples of district courts granting motions for compassionate release pursuant to section 3582(c)(1)(A) to alleviate the harsh consequences of section 924(c) stacking:
- United States v. Defendant (Yvette Wade), No. 2:99-cr-257, 2020 WL 1864906, *8 (C.D. Cal. Apr. 13, 2020), Dkt. 637 granting defendant's motion for compassionate release and reducing sentencing of 73 years and 1 month imposed in 1999 to "TIME SERVED, followed by three years of supervised release"); id. *4-5 (collecting cases concluding that district courts, in the absence of in the absence of applicable policy statements, courts can determine whether any extraordinary and compelling reasons other than those delineated in USSG 1B1.13] warrant sentence modification); id. *6 (collecting cases where other district courts have held that drastic reductions in section 924(c) stacking under the First Step Act, along with other circumstances, may warrant a reduction of a defendant's sentence).
- United States v. McPherson, No. 3:94-cr-05708-RJB, 2020 WL 1862596, *5 (W.D. Wa. Apr. 14, 2020), Dkt. 209 (granting defendant's motion for compassionate release and reducing sentence of 32.6 years imposed in 1995 to time served); id. ("In considering the government's argument - that the non-retroactivity law in the First Step Act purposely left this defendant's sentence in place - we need to look at all the laws, including 18 U.S.C. sec. 3582(c)(1)(A), together. Section 3582 (c)(1)(A) provides a safety valve against what otherwise would be a harsh, unjust, and unfair result stemming from a non-retroactivity clause."). The court's order has an excellent discussion of how and why the Sentencing Commission's Policy Statement in USSG sec. 1B1.13 (addressing factors court's should consider as "extraordinary and compelling reasons" to support compassionate release) does not limit the court's ability for finding extraordinary and compelling reasons for a sentencing reduction, leaving it to the Court to determine what qualifies, after appropriate analysis." Id. *4.
The Training Division provides resources on the First Step Act, including the new compassionate release (here and here), compassionate release in light of COVID-19, and other sentencing resources to help you argue for the best possible sentence for your client.