On January 30, 2014, the United States Senate Judiciary Committee voted out of committee, by a 13-5 Bipartisan roll call vote, S.1410 entitled the “Smarter Sentencing Act”.

Prior to the committee’s vote, United States Attorney General Holder stated that “this bill would give judges more discretion in determining appropriate sentences for people convicted of certain Federal drug crimes and would also provide a new mechanism for some individuals, who were sentenced under outdated laws and guidelines, to petition judges for sentencing reductions that are consistent with the Fair Sentencing Act.”

Crack Cocaine Cases and Decreased Mandatory Minimums

The Fair Sentencing Act of 2010 decreased crack cocaine mandatory minimums by increasing the amounts necessary, in new cases after August 3, 2010, to trigger 5 and/or 10-year mandatory minimum sentences for the following offenses:

· Manufacturing;

· Distributing (sale);

· Dispensing;

· Possessing with Intent to Manufacture, Distribute or Dispense;

· Importing; or

· Exporting.



Mandatory Minimum


Mandatory Minimum

Old Law

5 grams crack cocaine

50 grams crack cocaine

2010 Fair Sentencing Act Amendments

28 grams crack cocaine

280 grams crack cocaine

Additionally, the Act removed the 5-year mandatory minimum for crack cocaine possession in any amount, but unfortunately was not retroactive.

United States Sentencing Commission Retroactively Applies Amended Federal Crack Cocaine Drug Quantity Sentencing Guidelines

On June 30, 2011, the United States Sentencing Commission unanimously voted to retroactively apply the following reduced crack cocaine quantity-based penalties:

United States Sentencing Drug Quantity Table


Pre-Fair Sentencing Act Cocaine       Base / Crack Quantity

Amended Cocaine Base/Crack Quantity


















4.5 KG or more

8.4 KG or more


At least 1.5 KG but less than 4.5 KG

At least 2.8 KG but less than 8.4 KG


At least 500 G but less than 1.5 KG

At least 840 G but less than 2.8 KG


At least 150 G but less than 500 G

At least 280 G but less than 840 G


At least 50 G but less than 150 G

At least 196 G but less than 280 G


At least 35 G but less than 50 G

At least 112 G but less than 196 G


At least 20 G but less than 35 G

At least 28 G but less than 112 G


At least 5 G but less than 20 G

At least 22.4 G but less than 28 G


At least 4 G but less than 5 G

At least 16.8 G but less than 22.4 G


At least 3 G but less than 4 G

At least 11.2 G but less than 16.8 G


At least 2 G but less than 3 G

At least 5.6 G but less than 11.2 G


At least 1 G but less than 2 G

At least 2.8 G but less than 5.6 G


At least 500 MG but less than 1 G

At least 1.4 G but less than 2.8 G


Less than 500 MG

Less than 1.4 G

***KG = Kilograms; G = Grams; MG = Milligrams***

United States Supreme Court Applies Fair Sentencing Act to Crack Cocaine Offenses Committed Prior to Fair Sentencing Act

In Dorsey v. U.S., 132 S.Ct. 2321 (2012), The U.S. Supreme Court held that the Fair Sentencing Act’s more lenient crack cocaine mandatory minimums applied to defendants who were sentenced following the Fair Sentencing Act’s effective date, for one of the above-listed crack cocaine offenses committed prior to Act’s effective date.

The proposed Smarter Sentencing Act reported out by the Senate Judiciary Committee allows defendant’s sentenced for crack cocaine offense(s) prior to August 3, 2010 and who have not previously made a sentencing reduction request, one (1) opportunity to move the sentencing Federal District Court for order retroactively applying the Fair Sentencing Act’s decreased penalties.

Lower Drug Mandatory Minimums for Heroin, Cocaine, Cocaine Base, Phencyclidine (PCP), Marihuana, and Lysergic Acid Diethylamide (LSD) and Methamphetamine

The Smarter Sentencing Act also proposes amending the Federal Controlled Substances Act’s mandatory minimum sentence requirements for convictions involving the above-listed drugs of:

· Manufacturing;

· Distributing (sale);

· Dispensing;

· Possessing with Intent to Manufacture, Distribute or Dispense;

· Importing; or

· Exporting.

The proposed reduced mandatory minimums would be:

· 20-year mandatory sentences reduced to 10 years;

· 10-year mandatory sentences reduced to 5 years; and

· 5-year mandatory sentences reduced to 2 years.

Increase Individualized Judicial Discretion for Non-Violent Drug Offenders

Also, District Court sentencing judge’s would have more discretion in non-violent drug offense sentencing and based on individual circumstances, to determine when the harshest penalties should apply.

Expansion of “Safety Valve” to Allow For Sentences Below Mandatory Minimums

The current sentencing “Safety Valve” permits sentencing courts to impose sentences, in limited circumstances, below the mandatory minimums.

The current “Safety Valve” law is codified in 18 U.S.C. §3553(f), and provides in pertinent part,

“… in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act or section 1010 or 1013 of the Controlled Substances Import and Export Act…the court shall impose a sentence…without regard to any statutory minimum sentence, if the court finds at sentencing…

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense…was not engaged in a continuing criminal enterprise; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses…but the fact that the defendant has no relevant or useful other information to provide…shall not preclude a determination by the court that the defendant has complied with this requirement.

The proposed Smarter Sentencing Act would expand current Safety Valve law, 18 U.S.C. §3553(f)(1), by applying to defendants’ who have no more than three (3) criminal history points. (Please see below chart).

Criminal History Category (Criminal History Points)


(0 or 1)


(2 or 3)


(4, 5, 6)


(7, 8, 9)


(10, 11, 12)


(13 or more)


Safety Valve Law


Safety Valve Law


In checking with Senate Majority Leader Harry Reid’s office, his staff advised that the bill has not yet been scheduled for debate on the Senate floor. However, if enacted, the emergency authority found under Section 5(c) would require the U.S. Sentencing Commission to promulgate the new guidelines, policy statements, and amendments no later than 120 days after the enactment date.

If you or someone who cares about you has questions regarding Federal drug law and/or sentencing, please contact Michael C. Hennenberg to schedule a consultation.