Drug Offense Sentencing Relief Under the First Step Act and the U.S. Sentencing Guidelines

Drug Offense Sentencing Relief Under the First Step Act and the U.S. Sentencing Guidelines

May 3, 2024
Drug Offense Sentencing Relief Under the First Step Act and
the U.S. Sentencing Guidelines
Congress may establish maximum penalties and mandatory
allowing for a two-level reduction in the Guidelines offense
minimum penalties for federal crimes. These statutory
level based on the same 1994 criteria.
penalties form the outer bounds of permissible federal
criminal sentences. Within these statutory limits, the U.S.
In 2011, the Commission reported to Congress that the
Sentencing Guidelines establish sentencing ranges that
safety valve was underinclusive. The Commission therefore
federal judges must consider prior to imposing a sentence.
urged Congress to expand the safety valve to encompass
Together, federal statutes and the Guidelines provide the
certain additional offenders. In 2018, Congress enacted the
basic structure for federal sentencing decisions.
First Step Act, which, among other things, expanded
criminal-history eligibility for safety-valve relief. Whereas
Despite their name, mandatory minimums are not always
federal defendants with zero or one criminal-history points
mandatory. In 2018, Congress enacted the First Step Act,
under the Sentencing Guidelines could receive relief under
which, among other things, amended a federal “safety
previous law, the First Step Act made drug offenders with
valve” provision authorizing federal judges to impose
somewhat more substantial criminal histories newly eligible
sentences below mandatory minimums for certain drug
for safety-valve relief.
offenses in some circumstances. Federal appeals courts
disagreed on the scope of this revised safety valve and, on
18 U.S.C. § 3553(f)(1) now permits a federal defendant
March 15, 2024, the Supreme Court issued an opinion in
convicted of certain drug offenses to receive a sentence
Pulsifer v. United States, a case that resolved the
below a mandatory minimum as long as, in relevant part,
disagreement. The Supreme Court decision contracts the
universe of federal defendants who may obtain relief under
(1) the defendant does not have—
the safety-valve provision, and that interpretation will form
the basis for the interpretation of counterpart language in
(A) more than four criminal history points,
the Sentencing Guidelines. This In Focus offers an
excluding any criminal history points resulting
overview of the safety-valve provision, the Supreme
from a one-point offense, as determined under
Court’s decision, and the impact of the decision on the
the Sentencing Guidelines;
Guidelines.
(B) a prior three-point offense; and
The Federal Safety Valve and the First
(C) a prior two-point violent offense.
Step Act
Mandatory minimums require judges to impose a sentence
The Circuit Split
of imprisonment for at least the number of years specified
The First Step Act enumerated three criminal-history
in the applicable statute. Mandatory minimums are
conditions generally designed to disqualify from safety-
generally triggered by the offense of conviction and/or the
valve relief those defendants with more serious criminal
defendant’s recidivism. In the 1980s, Congress, primarily in
histories. Federal appeals courts disagreed, however, about
the Anti-Drug Abuse Act of 1986, attached mandatory
the scope of the amended safety-valve provision. Under the
minimums to certain drug offenses, including unlawful
conjunctive view adopted by the Fourth, Ninth, and
possession of a controlled substance and unauthorized
Eleventh Circuits, a defendant would be ineligible for the
possession with intent to distribute a controlled substance.
safety valve only if they possessed all three of the listed
Concerned that mandatory minimums for drug offenses
criminal-history conditions ((A), (B), and (C)).
could result in equally severe penalties for both more and
less culpable offenders, Congress introduced the first
By contrast, the distributive approach taken by the Fifth,
safety-valve provision as part of the Violent Crime Control
Sixth, Seventh, and Eighth Circuits, treated the prefatory
and Law Enforcement Act of 1994. Under this statute, a
clause “does not have” as applying to each subsequent
judge could impose a sentence below a drug-related
condition. For these courts, a defendant satisfying any one
mandatory minimum if the defendant satisfied five criteria,
of the three conditions ((A), (B), or (C)) would be
including not having “more than one criminal history point
disqualified from safety-valve relief. Because this reading
as determined under the Sentencing Guidelines.”
treats the “and” connecting the three conditions as an “or,”
(According to the Guidelines, a defendant’s criminal history
this approach also is described as a “disjunctive” one.
is reflected in points, and the computation of these points
depends on the nature and number of prior offenses.) The
The Commission’s Amendment
U.S. Sentencing Commission, which promulgates the
Pursuant to 28 U.S.C. § 944(a), the Commission has the
Guidelines, adopted a corresponding Guideline provision
statutory responsibility to promulgate Guidelines
“consistent with all pertinent provisions of any Federal
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Drug Offense Sentencing Relief Under the First Step Act and the U.S. Sentencing Guidelines
statute.” The Supreme Court also suggested in Braxton v.
Impact of Pulsifer on the Amended
United States that the Commission has a primary role in
Guidelines
resolving circuit conflicts involving the Guidelines.
The Commission adopted, but declined to interpret, the
Guidelines provision memorializing the safety-valve
Following the enactment of the First Step Act, the
language as amended by the First Step Act. The Supreme
Commission sought to implement the statute insofar as it
Court’s interpretation of the statutory safety valve applies
implicated the Guidelines. In 2022, the Commission
by extension to the corresponding Guidelines provision.
indicated that it might amend the Guidelines provision
The Supreme Court has stated that once it has “determined
corresponding with the safety valve, U.S.S.G. § 5C1.2, in
a statute’s meaning,” the Court “assess[es] an agency’s later
light of the change to the statutory safety valve, 18 U.S.C.
interpretation of the statute against settled law.”
§ 3553(f)(1). The Commission then announced that it was
Specifically addressing the Commission, the Court has also
considering two options with respect to amending the safety
emphasized that the Commission “has no authority to
valve in the Guidelines: the first option would reproduce
override [a] statute as we have construed it.” In United
the statutory language in the Guidelines without reflecting a
States v. LaBonte, the Court confronted a case in which the
position as to how the language should be interpreted. This
Commission’s commentary was “at odds” with the Court’s
route would permit federal courts to interpret the safety
understanding of the statute’s text and concluded that the
valve according to a conjunctive or distributive approach.
commentary “must give way.” Accordingly, the Supreme
The second option also would reproduce the statutory
Court’s interpretation of Section 3553(f)(1) forecloses a
safety-valve language but would expressly adopt the
contrary reading of the corresponding Guideline provision
distributive interpretation, disqualifying a defendant with
in U.S.S.G. § 5C1.2. Early post-Pulsifer opinions in the
any one of the criminal-history conditions.
lower federal courts reflect this understanding.
The Supreme Court subsequently agreed to resolve the
Congressional Considerations
circuit split on the meaning of the statutory safety valve.
If the Court’s Pulsifer decision does not align with
The Commission therefore took the first option, revising the
congressional intent, Congress may further amend Section
Guidelines to reproduce the new statutory safety-valve
3553(f)(1), which would then impact the meaning of
language while not taking a position on the circuit conflict.
§ 5C1.2. Should the Commission propose other
The Chair of the Commission pointed to the Court’s “recent
amendments to the Guidelines counterpart to the statutory
choice to consider open questions about this ‘safety valve’”
safety valve, Congress will have the opportunity to review,
as a reason why the Commission selected a “neutral
modify, or disapprove any such amendments to the
approach to implementing Congress’s directives on this
Guidelines.
matter.” After the expiration of the congressional review
period, the amendment to the Guidelines became effective
Additional Reading
on November 1, 2023.
The following CRS products provide additional analysis of
The Supreme Court’s Pulsifer Ruling
legal issues presented in this Sidebar:
In March 2024, the Supreme Court issued a ruling in
•
CRS Legal Sidebar LSB10890, Back in Action, the U.S.
Pulsifer v. United States, adopting the distributive or
Sentencing Commission to Resolve Circuit Splits on Controlled
disjunctive reading of the safety valve. The majority
Substances and Sentencing Reductions, by Dave S. Sidhu
reasoned that an alternative reading would render the first
•
CRS Legal Sidebar LSB11145, Supreme Court Clarifies
condition superfluous, explaining that “if a defendant has a
Scope of Drug Offense Sentencing Relief Under the First Step
three-point offense under Subparagraph B and a two-point
Act, by Dave S. Sidhu
offense under Subparagraph C, he will always have more
than four criminal-history points under Subparagraph A.”
•
CRS In Focus IF12422, Congressional Review of Proposed
The Court also wrote that each part of Section 3553(f)(1)
Amendments to the U.S. Sentencing Guidelines, by Dave S.
serves a gatekeeping function and is needed to block a
Sidhu
different category of culpable offender from safety-valve
relief: the first condition covers recidivists, the second

covers defendants who have committed a serious offense,
and the third covers defendants who have committed a
Dave S. Sidhu, Legislative Attorney
violent offense. The Court characterized Section 3553(f)(1)
as “an eligibility checklist” that reserves safety
IF12651
-valve relief
for only those defendants lacking any of the three
conditions.

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Drug Offense Sentencing Relief Under the First Step Act and the U.S. Sentencing Guidelines

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https://crsreports.congress.gov | IF12651 · VERSION 1 · NEW