The Commission voted to make the minus 2 drug amendment retroactive to all persons who have already been sentenced and whose sentence was based upon the drug quantity table (career offenders do not get relief because their sentence was based upon the career offender guideline not the drug quantity table). There are no categorical exclusions for things like gun enhancement, role in the offense, etc. The retroactive amendment, like the minus 2 amendment goes into effect on Nov 1, 2014. People who are currently incarcerated can file for a sentence reduction under 18 USC 3582 and the court can grant the motion after Nov 1, 2014, but no person can be released until Nov 1, 2015.

For cases not yet sentenced, the DOJ policy calls for prosecutors to not oppose the two level reduction, some prosecutors will agree and some will not.

For those who will benefit from the amendment, you can file an 18 U.S.C. 3582(c)(1)(B)(2) motion and ask the court to resentence you accordingly. In the past most courts applied retroactivity on the 3582 motion eliminating bringing back defendants for resentencing. In the past we saw most defendants receive the benefit of a new guideline range. However, the sentence that was determined is still up to the court in determining where in the new guidelines the sentence would fall. Career offenders are not eligible for this relief.

Please be advised that the Commission in the past issued amended language to U.S.S.G. 1B1.10. The amended language of 1B1.10 indicates that in reviewing 3582 motions that the Commission’s retroactive application will only consider a 2 level reduction from the guidelines that were applied to any case that is eligible for relief under this amendment. 1B1.10(a)(3) states, “there is to be no ‘full resentencing.'” Section (b)(1) requires courts to only substitute the amended guideline sections and leave all other guideline sections unaffected. Section (b)(2) also states that the 2 level reduction authorized, can also be accomplished by percentage equivalent.

Even though you may be eligible for the Amendment, courts are free to decide whether to change your sentence or not, depending on other factors concerning offender and offense characteristics. Keep in mind that some offenders will receive the guideline reductions but some may be stuck at a minimum mandatory and cannot benefit from the amendment. Remember the statute has not changed and the statute trumps the guidelines.