Part V: Decreasing the Impact of Prior Convictions in Drug Offenses

As previously noted, the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act, also known as the FIRST STEP Act, was enacted in December 2018 and brought multiple reforms to the criminal justice system. Notably, it included provisions which reduced mandatory minimum sentences for those yet to be convicted, and under certain circumstances, commuted sentences for those already serving terms of incarceration. With regard to the former, one of the signature provisions of the Act was to reduce mandatory minimum sentences in serious narcotics cases for those previously convicted of one or more felony drug crimes.

Specifically, pursuant to 21 U.S.C. § 841(a), it is unlawful to knowingly or intentionally manufacture, distribute, dispense or possess with intent to do the same, any controlled substance. Any applicable mandatory minimum or maximum sentence for a conviction pursuant to §841(a) is then established by 21 U.S.C. § 841(b) based on the amount of narcotics and any accompanying aggravating circumstances. In a case involving at least 280 grams of cocaine base, one kilogram of heroin, five kilograms of cocaine or 1000 kilograms of marijuana, a defendant is facing a mandatory minimum sentence of ten years imprisonment and a maximum sentence of life imprisonment if convicted. See 21 U.S.C. § 841(b)(1)(A). Prior to the FIRST STEP Act, if the defendant had a prior felony drug conviction and the government elected to file with the court a notice of such conviction pursuant to 21 U.S.C. § 851, then the defendant's mandatory minimum sentence for this quantity of narcotics would have increased to 20 years imprisonment for any second felony drug offense, and mandatory life imprisonment for any additional prior felony drug offenses.

The FIRST STEP Act reduces these mandatory minimum enhancements to 15 and 25 years, respectively, therefore ending the "three strikes" policy for serious narcotics offenses that resulted in sentences of life imprisonment upon a third felony drug conviction. Additionally, now only "serious drug felonies" may be used to substantiate the filing of the § 851 enhancement, i.e., those punishable by at least ten years imprisonment or where the defendant was incarcerated for at least 12 months for the prior drug offense. See 18 U.S.C. § 924(e)(2). On the other hand, the government may also file the § 851 enhancement not only to prior drug offenses, but also convictions for serious violent felonies, i.e., where the defendant served more than 12 months imprisonment or where the crime was punishable by more than ten years imprisonment and involved an element of threatened or actual force, or a substantial risk of force. See 18 U.S.C. § 3559(e).

In cases involving at least 28 grams of cocaine base, 100 grams of heroin, five hundred grams of cocaine or 100 kilograms of marijuana, defendants face a mandatory minimum sentence of five years imprisonment. While the FIRST STEP Act does not change the impact of the § 851 enhancement - it increases the mandatory minimum sentences to 10 years imprisonment for those with prior convictions - it restricts the enhancement only to prior convictions for serious drug and violent felonies, as described above.

Hiring a top federal criminal defense attorney to defend you in any federal narcotics prosecution or assist with any questions concerning the applicability of the FIRST STEP Act is crucial and will ensure that every viable defense or avenue for a sentencing reduction is explored and utilized on your behalf. Lawyers at the Law Offices of Jeffrey Lichtman have successfully handled countless federal cases, exploiting holes in the prosecution's evidence to achieve the best possible result for our clients. Contact us today at (212) 581-1001 for a free consultation.