Jeremy Gordon
sentencing commission

Introduction: the United States Sentencing Commission and the Federal Drug Table

When a person either pleads guilty or is found guilty of a drug crime, such as federal drug trafficking and sentenced under the federal drug guidelines, they are assigned a base offense level.  This base offense level is determined by the amount of drugs a person can be held responsible for under our laws.  That base offense level was determined by the United States Sentencing Commission as part of the federal sentencing guidelines. The United States Sentencing Commission, an agency in the judicial branch of the federal government, was charged in the sentencing reform act of 1984 with developing sentencing guidelines in order to promote uniformity in sentencing.  However, over time the federal prison system became overcrowded and the Sentencing Commission realized that the sentences that were handed down no longer met the needs of public safety:

“Spending on federal prisons exceeds $6 billion a year, or more than 25 percent of the entire budget for the Department of Justice. The Commission received testimony from the Department of Justice and others that spending on federal prisons is now crowding out resources available for federal prosecutors and law enforcement, aid to state and local law enforcement, crime victim services, and crime prevention programs, all of which promote public safety.”

Commentary, Amendment 782

United States Sentencing Guideline 782 Passes Through the Commission

In light of the above, the United States Sentencing Commission amended their sentencing guidelines with United States Guideline Amendment 782.  The Amendment was placed in the Federal Register on May 1 2014 and took effect on November 1 2014.  Amendment 782 was also given retroactive application, meaning that persons who were convicted before then could seek sentence reductions under the Title 18, United States Code, section 3582(c)(2)

The passage of amendment 782 was made possible by thousands of letters written to the sentencing commission by inmates and their loved ones, similar to the letters written here.

How Does Amendment 782 Work?

The United States Sentencing Commission plainly states that Amendment 782 “reduced by two levels the offense levels assigned to drug quantities.” 

Individuals who were sentenced before November 1 of 2014 can seek retroactive application of amendment 782 in the federal courts by filing a motion for relief under 18 U.S.C. 3582(c)(2). 

Amendment 782 must be applicable to the defendant. 

The first step in this analysis is to show that the prisoner would receive a reduction.  This is shown by examining the amount of drugs that the prisoner was deemed responsible for at the time of their sentence, determining the correlating base offense level for that prisoner at that time (this can be found in the presentence investigation report or the sentencing transcript of the prisoner) and determining if that base offense level would be different today after application of amendment 782. 

Example:  Prior to amendment 782 a person who was responsible for 151 kilograms of powder cocaine during their drug crime would have a base offense level of 38.  After the passage of amendment 782 that same person would have a base offense level of 36 because their drug conduct was between 150 kilograms and 450 kilograms.  For a person in criminal history category one the difference is between 235-293 months (for level 38) and 188-235 (for level 36).  From there, the base offense level is increased or decreased for enhancements and reductions in order to reach the adjusted offense level.  No other adjustments are made (as in, no arguments would be allowed over whether he was responsible for a weapon during the course of the crime or whether he was a leader/organizer).  The lowest that the court could reduce this person’s sentence to would be 188 months. 

drugs, cocaine, user
drug trafficking fentanyl analogues

Example:  Prior to amendment 782 a person who was responsible for 500 kilograms of powder cocaine during their drug crime would have a base offense level of 38.  After the passage of amendment 782 that same person would continue to have a base offense level of 38 because his conduct was above 450 kilograms.  Amendment 782 has no effect here.  This person would not be eligible for the 782 reduction. 

Impact of Mandatory Minimums and Federal Cooperation on Amendment 782

Under most circumstances Amendment 782 cannot reduce a sentence below a mandatory minimum.  This means that if a person seeks relief under Amendment 782 and they are otherwise eligible then they can only receive a reduction to the mandatory minimum set.  This applies to any mandatory minimum, either for the amount of drugs that are in an indictment or any applicable 851 enhancements. 

The exception to this is if a person received a reduction for cooperation.  “If the term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the defendant’s substantial assistance to authorities” then a proportional reduction may be appropriate.  The incarcerated person must have received a reduction for cooperation under Rule 35 or United States Sentencing Guideline 5K1.1.  These matters can get complicated and other sentence reduction mechanisms like a 3582 reduction may be more appropriate, so please reach out to our office for more information. 

Impact of Career Offenders on Amendment 782

Amendment 782 only applies to cases where the person was sentenced under United States Sentencing Guideline 2D1.1.  Career offenders are sentenced under United States Sentencing Guideline 4B1.1 In order for a career offender to be eligible for relief under Amendment 782, their base offense level for drugs must be higher than their career offender offense level.  A person seeking eligibility must know both offense levels.  These are available in the Presentence Investigation Report, which is in the counselor’s office. 

An inmate must be an appropriate candidate for a reduction under the 3553(a) factors. 

 

Title 18, United States Code 3582(c)(2) indicates that the court must also consider “the factors set forth in section 3553(a) to the extent that they are applicable.” These are the same factors that the sentencing judge was to consider during at the time of sentencing, and include the following:

  • Nature and circumstances of the offense and the history and characteristics of the defendant;
  • Need for the sentence imposed to—
    • reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
    • afford adequate deterrence to criminal conduct;
    • protect the public from further crimes of the defendant; and
    • provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
  • Kinds of sentences available;
  • Sentencing range established for—
    • [the guideline range and criminal history category in the case]
  • Any pertinent policy statement
  • Need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
  • Provision of restitution to any victims of the offense.

What Types of Evidence Do I Need for My 782 motion?

A Release Plan

A release plan outlines what you would do if released. Where will you live? How will you support yourself? What will you do? It should also include support letters from your loved ones attesting to your plan and discussing how they will support you after release. While letters of support frequently include testimony to your rehabilitation or strength of character, it is also equally important that these letters give concrete examples of ways in which your community will help you avoid recidivism and continue rehabilitation. Can they offer you a place to stay? A job? Moral support? All of this helps to reinforce your motion and demonstrates community “safeguards” that will help you keep on the right path after release. Full names and contact information for people writing these letters for you should be included.

BOP Conduct Records

To prove that your post-incarceration conduct involves evidence of rehabilitation, numerous documents from the BOP should be included: Your ISDS Report, IRP, Team Sheet, Individual Reentry Plan, certificates of any courses or leadership positions, and your PATTERN score. Importantly, these things help to demonstrate the third essentialassertion that must be proven in a compassionate release case: rehabilitation.

Medical Records

If your request has anything to do with your medical condition, then you must include your medical records. Usually, these records should all be obtained before you file with the court. In most cases, an inmate can request their BOP medical records themselves. If you must request these records through your lawyer, then the records can take several weeks because you and your attorney must complete an ID Verification and a FOIA request first. If, for some reason, you have trouble obtaining your records from the BOP, then this should be documented as well. You should note the names, dates, and positions of those who denied you access to your records.

Hire the Federal Sentence Reduction Lawyers at the Law Office of Jeremy Gordon today!

The United States Sentencing Commission estimated that the average inmate sentenced under United States Sentencing Guideline 2D1.1 could receive an average reduction of 11 months under Amendment 782 and that Amendment 782 could reduce the incarcerated population by 6500.  Many inmates have received a reduction under amendment 782 but more may be eligible.  If you have not filed for relief under amendment 782 as of yet, please reach out to our office today so that we can discuss your options. 

jeremy gordon

Reach out to The Law Office of Jeremy Gordon for prompt, courteous and skilled representation as your federal criminal defense attorney.  Use the form below or call us at 972-483-4865 today!