October 18, 2010

Fair Sentencing Act of 2010 - Emergency Amendments

On Friday, October 15, 2010, the United States Sentencing Commission promulgated temporary emergency amendments, effective Nov, 1, 2010, which implement the directives in the Fair Sentencing Act of 2010 (FSA). A reader-friendly version of the amendments can be found here. Public comment on the proposed amendments by the Federal and Community Defender community, which may be helpful in deconstructing the amendments, can be found here.

The temporary emergency amendments deals not only addresses changes in base offense levels based on the new crack/powder ratio of 18:1, but also addresses the elimination of the mandatory minimum for simple possession of crack and adds several adjustments for all drug types. Among those adjustments are various enhancements for use of violence or threatened use of violence during the commission of a drug offense, bribery or attempted bribery of a law enforcement officer to facilitate the commission of the offense, maintaining a premise for the purpose of manufacturing or distributing a controlled substance and super-aggravating role. Finally, the amendments cap a defendant's base offense level at 32 if he receives a minimal role adjustment and provide for a two level reduction for defendants who receive minimal role and who were "unwitting dupes" in the offense (i.e., minimum knowledge of scope and structure of enterprise, no monetary compensation, motivated by an intimate or familial relationship or by threats or fear when the defendant was otherwise unlikely to commit the offense).