FAQs About Amendment 782, a.k.a. Drugs Minus Two

Law book library Drugs Minus Two  In April 2014, the United States Sentencing Commission lowered the federal drug sentencing guidelines for all controlled substances, effective November 1, 2014. Officially known as Amendment 782, it was nicknamed “Drugs Minus Two.” In July 2014, the sentencing commission agreed to make Drugs Minus Two retroactive, affecting eligible prisoners who were convicted of federal drug crimes prior to November 1, 2014, with the caveat that no eligible prisoner may be released prior to November 1, 2015.

What Is Amendment 782?

Amendment 782 reduces all base offense levels found in the Sentencing Guidelines Drug Quantity Table, U.S.C. section 2D1.1, by two levels, which virtually affects all sentencing for federal drug crimes, with exceptions.

Whom Does Amendment 782 Affect?

Amendment 782 applies to:

  • Those convicted of federal drug crimes.
  • Drug felons whose guidelines sentence is based on some quantity of any controlled substance and is
    • sentenced on or after November 1, 2014, or
    • sentenced prior to November 1, 2014, but cannot be released until after November 1, 2015.

Who Won’t Benefit from Drugs Minus Two?

Amendment 782 will not affect:

  • Non-drug related offenses
  • Career offender sentences (U.S.C. section 4B1.1)
  • Statutory mandatory minimum cases
  • Prisoners convicted of state crimes
  • Defendants with the highest and lowest drug quantities.

The sentencing commission considered but ultimately decided against excluding felony drug offenders with a criminal history or sentence enhancement. However, Judges are charged with the duty of first considering the safety of the public. Judges are not required to grant the sentence reduction and may deny reducing your sentence if they believe your early release could pose a danger to public safety.

Why Doesn’t Amendment 782 Affect Me If I’m Sentenced?:

  • As a Career Offender?

Amendment 782 is only applicable to those sentenced under the federal drug sentencing guidelines. Career offenders, even if based on drug convictions, are not sentenced under the same guideline, but under the Career Offender guideline, a separate statute. A career offender is a felon who has been convicted of at least two prior felonies for a crime of violence or controlled substance offense and the current offense you are charged with or convicted for is a crime of violence or drug offense.

  • To the Mandatory Minimum?

Congress sets the mandatory minimum for drug crimes, which cannot be changed by the sentencing commission and trumps any guideline reduction. This includes drug offenders with prior felony drug convictions who are sentenced to a mandatory minimum of 20-year and life sentences enhanced under 21 U.S.C. section 851.

If, however, you were sentenced above the mandatory minimum and Amendment 782 would have reduced your sentence to less than the mandatory minimum, the mandatory minimum will limit your actual reduction to the minimum.

The Sentencing Commission Made Drugs Minus Two Retroactive, But How Does It Work?

A motion is filed with the sentencing court requesting a sentence reduction under 18 U.S.C. section 3582(c)(2). The judge will decide whether to grant your motion retroactively, but can only determine if you should receive a two-level sentence reduction.  The prosecution may “consent” to the motion or may oppose your motion or sentence reduction. If you were entitled to reduction but prevented because you would have been released prior to November 1, 2015, the judge may take this into consideration if you move for early termination of your term of supervised release.

Contact a New York Federal Defense Attorney

Judges can start considering your motions based on Drugs Minus Two today! Seek a knowledgeable New York federal defense attorney with The Law Office of Frederick L. Sosinsky at (212) 285-2270 for assistance.