Effective November 1, 2007, the United States Sentencing Guidelines eliminated the long-disapproved sentencing disparity between convictions based on crimes involving crack-cocaine and powder-cocaine. The amendment results in a two-point sentencing reduction or an average of 15 months.

On December 11, 2007, the United States Sentencing Commission voted to apply the sentencing reduction retroactively. This means defendants who were sentenced under the old guidelines for a crime involving crack-cocaine may be entitled to the two-point reduction. Pursuant to 18 U.S.C. § 3582(c)(2):

In the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant, the director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

Not everyone sentenced for an offenses involving crack-cocaine will be eligible for the retroactive sentencing reduction. For instance, if you are serving a sentence pursuant to the mandatory minimum law of either 5 or 10 years, then you cannot benefit from the guideline reduction. (This is because the guideline sentencing range cannot be lower than the mandatory minimum except in cases in which the safety valve or a downward departure based on substantial assistance was applied). Additionally, if you were sentenced under the career offender guideline, § 4B1.1, or the armed career offender guideline, § 4B1.4, then you are not eligible. Finally, those with a base offense level less than 12 or more than 43 or offenses involving more than 4.5 kg of crack-cocaine. See, www.famm.org, "FAQs about crack retroactivity" (Dec. 12, 2007).

The retroactive sentencing reduction went into effect on March 3, 2008.   If you were convicted of a federal offense involving crack-cocaine and think you may be entitled to the new sentencing reduction, please contact Adrienne Dunn at BRODEN & MICKELSEN.  Generally the firm charges $3,000 ($2,000 for former clients) to prepare a motion for a reduced sentence under the crack amendment although it could be higher or lower in some cases.

Helpful Resources:
Families Against Mandatory Minimums www.famm.org
US Bureau of Prisons                                www.bop.gov
US Sentencing Commission                   www.ussc.gov