Sentence Reform Acts: S. 2123 and H.R. 3713

Congressional research reportOct 14, 2015

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R44226

Sentence Reform Acts: S. 2123 and H.R. 3713

Summary

As introduced, the Sentencing Reform and Corrections Act of 2015, S. 2123, and the Sentencing

Reform Act of 2015, H.R. 3713, use virtually identical language to reduce the impact of the

mandatory minimum sentences which federal courts must now impose for certain drug trafficking

and firearms offenses.

Key Takeaways



Existing law requires long minimum sentences for certain drug traffickers who

have prior drug convictions. S. 2123 and H.R. 3713 would shorten the mandatory

minimums, but apply them for both prior drug and violent felony convictions.

The safety valve permits judges to ignore mandatory minimums for certain lowlevel, nonviolent drug traffickers with virtually no criminal record. The bills

would make the safety valve available to traffickers with slightly more serious

criminal records.

The bills would establish a mini-safety valve which would permit judges to treat

the 10-year drug trafficking mandatory minimums as if they were 5-year

mandatory minimums for the benefit of nonviolent defendants with no prior

serious drug or violent crime convictions.

The proposals would permit retroactive application of the 2010 Fair Sentencing

Act crack/powder cocaine amendments under some circumstances.

S. 2123 and H.R. 3713 would reduce the Armed Career Criminal mandatory

minimum to 10 years from 15 years.

The bills would increase to 15 years the maximum penalties for possession of a

firearm by a felon and various other firearms offenses.

H.R. 3713, but not S. 2123, would add a consecutive term of imprisonment for

not more than five years to the mandatory minimums in drug trafficking cases

which involve heroin or fentanyl (a heroin cutter and counterfeit).

S. 2123, but not H.R. 3713, would establish new mandatory minimums for

certain interstate domestic violence offenses and International Emergency

Economic Powers Act (IEEPA) violations.

S. 2123, but not H.R. 3713, would direct the Attorney General to prepare an

inventory of federal statutory crimes and various federal agencies to prepare a

comparable inventory of federal regulatory offenses.

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713

Contents

Introduction ..................................................................................................................................... 1

Mandatory Minimums ..................................................................................................................... 1

Controlled Substances ............................................................................................................... 1

Safety Valve .............................................................................................................................. 4

Firearms .................................................................................................................................... 6

Fair Sentencing Act ................................................................................................................... 9

New Mandatory Minimums .......................................................................................................... 10

Inventory of Federal Crimes .......................................................................................................... 10

Tables

Table 1. Terms of Imprisonment: Controlled Substances ................................................................ 2

Contacts

Author Contact Information ........................................................................................................... 11

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713

Introduction

Within a week of each other, Senator Grassley and Representative Goodlatte, chairmen of the

Senate and House Judiciary Committees, introduced parallel sentencing reform bills with

bipartisan cosponsors.1 By and large in identical language, the two would amend existing

mandatory minimum sentence provisions found in federal drug and firearms laws, by and large in

identical language. The most obvious difference is that the Senate proposal, S. 2123, the

Sentencing Reform and Corrections Act of 2015, features an extensive corrections title, which the

House proposal, H.R. 3713, the Sentencing Reform Act of 2015, lacks.2

Mandatory Minimums

Controlled Substances

The Controlled Substances Act and the Controlled Substances Import and Export Act establish a

series of mandatory minimum sentences for violations of their prohibitions.3 Trafficking—that is,

importing, exporting, manufacturing, growing, or possessing with the intent to distribute—a very

substantial amount of various highly addictive substances, such as more than 10 grams of LSD

(§841(b)(1)(A)), is punishable by imprisonment for not less than 10 years or more than life.4 A

subsequent conviction carries a sentence of imprisonment for not less than 20 years or more than

life.5 When substantial but lesser amounts are involved, such as 1 gram of LSD (§841(b)(1)(B)),

sentences of imprisonment for not less than 5 years or more than life are called for, and

imprisonment for not less than 10 years or more than life in the case of a subsequent conviction.6

In each instance, a summary and a section-by-section analysis accompanied introduction; in the case of S. 2123, it

appears at http://www.judiciary.senate.gov/meetings/senators-announce-bipartisan-sentencing-reform-and-correctionsact; in the case of H.R. 3713, at http://judiciary.house.gov/index.cfm/press-releases?id=6043D052-68F1-42D6-B21FB43449F88615.

Discussion of S. 2123’s corrections provisions is beyond the scope of this report.

Portions of what follows have been borrowed from CRS Report R44006, Mandatory Minimum Sentencing Legislation

in the 114th Congress, by (name redacted)

21 U.S.C. 841(b)(1)(A); 21 U.S.C. 960(b)(1). The threshold amounts covered by the sections are “(i) 1 kilogram or

more of a mixture or substance containing a detectable amount of heroin; (ii) 5 kilograms or more of a mixture or

substance containing a detectable amount of- (I) coca leaves, except coca leaves and extracts of coca leaves from which

cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (II) cocaine, its salts, optical and

geometric isomers, and salts of isomers; (III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or (IV)

any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses

(I) through (III); (iii) 280 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;

(iv) 100 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable

amount of phencyclidine (PCP); (v) 10 grams or more of a mixture or substance containing a detectable amount of

lysergic acid diethylamide (LSD); (vi) 400 grams or more of a mixture or substance containing a detectable amount of

N-phenyl-N- [1- (2-phenylethyl) -4-piperidinyl] propanamide or 100 grams or more of a mixture or substance

containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide; (vii)

1,000 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 1,000 or more

marihuana plants regardless of weight; or (viii) 50 grams or more of methamphetamine, its salts, isomers, and salts of

its isomers or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its

salts, isomers, or salts of its isomers.” 21 U.S.C. 841(b)(1)(ii)-(vii).

21 U.S.C. 841(b)(1)(A); 21 U.S.C. 960(b)(1)(“... If any person commits such a violation after a prior conviction for a

felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not less than 20

years and not more than life imprisonment....”).

21 U.S.C. 841(b)(1)(B); 21 U.S.C. 960(b)(2). The threshold amounts for this lower sentencing plateau are “(i) 100

(continued...)

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713

As noted in Table 1 below, S. 2123 and H.R. 3713 would reduce the mandatory minimum

sentences that must be imposed on repeat offenders.

Table 1. Terms of Imprisonment: Controlled Substances

S. 502/H.R. 920

(114th Cong.)

S. 2123/H.R. 3713

(114th Cong.)

Offense

Present Law

I. (a)(i) Trafficking:

§841(b)(1)(A) substances

(e.g., 10 grams + of LSD)

not less than 10 years or

more than life

not less than 5 years or

more than life

S. 2123: no change

b H.R. 3713: added term of

not more than 5 years if

heroin or fentanyl

(a)(ii) if death or serious

injury results

not less than 20 years or

more than life

no change

no change; b

(b)(i) one prior violation

not less than 20 years or

more than life

not less than 10 years or

more than life

not less than 15 years or

more than life (a also

violent prior, but only 10

year drug prior); b

(b)(ii) and death or

serious injury results

life

no change

violations

life

not less than 25 years

not less than 25 years or

more than life; (a); (b)

II. (a)(i) Trafficking:

§841(b)(1)(B) substance

(e.g. 1g + of LSD)

not less than 5 years or

more than 40 years

not less than 2 years or

more than 40 years

no change; b

(a)(ii) if death or serious

injury results

not less than 20 years or

more than life

no change

no change; b

(b)(i) one prior violation

not less than 10 years or

more than life

not less than 5 years or

more than life

(a); (b)

(b)(ii) and death or

serious injury results

life

no change

III. (a)(i) Import/export:

§960(b)(1) substances (e.g.

10 grams + of LSD)

not less than 10 years or

more than life

no change except for a

courier; for a courier, not

less than 5 years or more

than life

no change; b

(a)(ii) second offense

not less than 20 years or

more than life

no change, except for a

courier; for a courier, not

less than 10 years or more

than life

not less than 15 years or

more than life; (a); (b)

(...continued)

grams or more of a mixture or substance containing a detectable amount of heroin; (ii) 500 grams or more of a mixture

or substance containing a detectable amount of ... cocaine ... (iii) 28 grams or more of a mixture or substance described

in clause (ii) which contains cocaine base; (iv) 10 grams or more of phencyclidine (PCP) ... (v) 1 gram or more of a

mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD); (vi) 40 grams or more of a

mixture or substance containing a detectable amount of ... propanamide ... (vii) 100 kilograms or more of a mixture or

substance containing a detectable amount of marihuana ... or (viii) 5 grams or more of methamphetamine.... ” 21 U.S.C.

841(b)(1)(B)(ii)-(vii).

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713

Offense

Present Law

S. 502/H.R. 920

(114th Cong.)

S. 2123/H.R. 3713

(114th Cong.)

(b)(i) Import/export;

§960(b)(2) substances (e.g.,

1g + of LSD)

not less than 5 years or

more than 40 years

no change, except for

couriers; for couriers, not

less than 2 years or more

than 40 years

(a); (b)

(b)(ii) second offense

not less than10 years or

more than life

no change, except for

couriers; for couriers, not

less than 5 years or more

than life

(a); (b)

Source: Congressional Research Service, based on S. 2123 (114th Cong.); S. 502/H.R. 920 (114th Cong.); and 21

U.S.C. 841, 960.

a. S. 2123 and H.R. 3713 would adjust the mandatory minimum sentences required to be imposed on repeat

offenders by both expanding and contracting the range of prior convictions which would trigger the

recidivist mandatory minimums. Existing law requires a prior conviction for a federal or state drug offense

punishable by imprisonment for more than a year.7 S. 2123 and H.R. 3713 would require conviction for a

federal or state drug offense punishable by imprisonment for not more than 10 years and punished by

imprisonment for more than a year.8 The two proposals would also trigger the drug recidivist mandatory

minimum provisions on the basis of an assault or other violent crime conviction for which the offender was

sentenced to imprisonment for more than a year.9

These adjusted mandatory minimum provisions would apply to future cases and cases awaiting sentencing at

the time of enactment.10 They would also permit federal courts to reduce the terms of imprisonment of

defendants previously sentenced, after considering the defendant’s conduct after his initial sentence, “the

nature and seriousness of the danger to any person or the community,” and the generally applicable

sentencing factors of 18 U.S.C. 3553(a).11 H.R. 3713, however, would deny retroactive application to

defendants previously convicted of a violent crime for which the defendant had received a sentence of

imprisonment for more than a year.12

b. H.R. 3713 alone would add a consecutive sentence of not more than five years to each of the controlled

substance mandatory minimums if the offense involved a detectable amount of either heroin or fentanyl. 13

21 U.S.C. 802(44).

S. 2123, §§101(a), (b); H.R. 3713, §§2(a), (b)(each adopting by cross reference the definition in 18 U.S.C.

924(e)(2)(A)); proposed 21 U.S.C. 802(57), 841(b)(1); 960(b).

S. 2123, §§101(a), (b); H.R. 3713, §§2(a), (b); proposed 21 U.S.C. 802(58), 841(b)(1); 960(b). The proposals’ list of

qualifying prior violent felony convictions includes convictions for the crimes described in 18 U.S.C. 3559(c)(2)(F) or

the equivalents of convictions under 18 U.S.C. 113 (assault). The §3559(c)(2)(F) offenses consist of any (i) “Federal or

State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111);

manslaughter other than involuntary manslaughter (as described in section 1112); assault with intent to commit murder

(as described in section 113(a)); assault with intent to commit rape; aggravated sexual abuse and sexual abuse (as

described in sections 2241 and 2242); abusive sexual contact (as described in sections 2244(a)(1) and (a)(2));

kidnapping; aircraft piracy (as described in section 46502 of Title 49); robbery (as described in section 2111, 2113, or

2118); carjacking (as described in section 2119); extortion; arson; firearms use; firearms possession (as described in

section 924(c)); or attempt, conspiracy, or solicitation to commit any of the above offenses; and (ii) any other offense

punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or

threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that

physical force against the person of another may be used in the course of committing the offense.”

S. 2123, §101(c)(1); H.R. 3713, §2(c)(1).

S. 2123, §101(c)(2); H.R. 3713, §2(c)(2).

H.R. 3713, §2(c)(2).

H.R. 3713, §§2(a)(3), (b)(3); proposed 21 U.S.C. 841(b)(8), (9); 960(b)(1), (b)(2).

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713

Safety Valve

The so-called safety valve provision of 18 U.S.C. 3553(f) allows a court to sentence qualified

defendants below the statutory mandatory minimum in controlled substance trafficking and

possession cases.14 To qualify, a defendant may not have used violence in the course of the

offense.15 He must not have played a managerial role in the offense if it involved group

participation.16 The offense must not have resulted in a death or serious bodily injury.17 The

defendant must make full disclosure of his involvement in the offense, providing the government

with all the information and evidence at his disposal.18 Finally, the defendant must have an almost

spotless criminal record, that is, not more than 1 criminal history point.19

Criminal history points and categories are a feature of the U.S. Sentencing Commission’s

Sentencing Guidelines. The Guidelines assign points based on the sentences imposed for prior

state and federal convictions. For example, the Guidelines assign 1 point for any past conviction

that resulted in a sentence of less than 60 days incarceration; 2 points for any conviction resulting

in a sentence of incarceration for at least 60 days; and 3 points for any conviction resulting in a

sentence of incarceration of more than a year and a month.20

The Sentencing Commission’s report on mandatory minimum sentences suggested that Congress

consider expanding safety valve eligibility to defendants with 2 or possibly 3 criminal history

points.21 The report indicated that under the Guidelines a defendant’s criminal record “can have a

disproportionate and excessively severe cumulative sentencing impact on certain drug

offenders.”22 The Commission explained that the Guidelines are construed to ensure that the

sentence they recommend in a given case calls for a term of imprisonment that is not less than an

applicable mandatory minimum.23 In addition, the drug offenses have escalated mandatory

18 U.S.C. 3553(f)(“Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or

406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances

Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by

the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum

sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a

recommendation ...”). See, generally, CRS Report R41326, Federal Mandatory Minimum Sentences: The Safety Valve

and Substantial Assistance Exceptions, by (name redacted)

18 U.S.C. 3553(f)(2)(“... if the court finds at sentencing ... that ... (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”).

18 U.S.C. 3553(f)(4)(“... if the court finds at sentencing ... that ... (4) the defendant was not an organizer, leader,

manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a

continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act”).

18 U.S.C. 3553(f)(3)(“... if the court finds at sentencing ... that ... (3) the offense did not result in death or serious

bodily injury to any person”).

18 U.S.C. 3553(f)(5)(“... if the court finds at sentencing ... that ... (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 that were part of the same course of conduct or of a common scheme or plan, but the

fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of

the information shall not preclude a determination by the court that the defendant has complied with this requirement”).

18 U.S.C. 3553(f)(1)(“... if the court finds at sentencing ... that - (1) the defendant does not have more than 1 criminal

history point, as determined under the sentencing guidelines”).

U.S.S.G. §4A1.1.

United States Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal

Criminal Justice System, 355 (October 2011).

Id. at 352.

Id.

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713

minimums for repeat offenders.24 Moreover, similarly situated drug offenders may be treated

differently, because the states punish simple drug possession differently and prosecutors decide

when to press recidivism qualifications differently.25

S. 2123 and H.R. 3713 would modify the safety valve in several respects. First, a defendant

would be safety valve eligible with 3 or fewer criminal history points and had not been convicted

previously of either a drug trafficking offense, a violent offense, or a “3-point offense” (i.e., one

for which he was incarcerated for 60 days or more).26

Second, the two proposals would permit the court to waive the criminal history disqualification,

in cases other than those involving a past serious drug felony or serious violent felony conviction,

if it concluded that the defendant’s criminal history score overstated the seriousness of his

criminal record or the likelihood that he would commit other offenses.27

Third, the bills would create additional safety valve. They would allow the sentencing court to

treat a statutory 10-year drug trafficking mandatory minimum—the penalty for first-time

§841(b)(1)(A) offenses and §960(b)(1) offenses—as though it were a 5-year mandatory

minimum.28 A defendant would be eligible for this mini-safety valve if



he had no prior convictions for a serious drug felony or serious violent felony;29

he did not use violence in connection with the offense;30

he was not an organizer or supervisor of others in connection with the offense;31

he was not an importer, high-level supplier, or manufacturer of the drugs;32

Id.

Id. at 353 (“Interviews of prosecutors and defense attorneys in 13 districts confirm that different districts have

adopted different practices with respect to filing the necessary information required to seek an enhanced penalty under

21 U.S.C. §851[relating to proof of a prior conviction] in part because of its severity. The structure of the recidivist

provisions in 21 U.S.C. §§841 and 960 fosters inconsistent application, in part, because their applicability turns on the

varying statutory maximum penalties for state drug offenses”).

S. 2123, §102(a)(1); H.R. 3713, §3(1); proposed 18 U.S.C. 3553(f)(1). They would define “drug trafficking offense”

for these purposes as a state, federal, or foreign drug trafficking offense without reference to the attendant penalties; it

would define “violent offense” as a crime punishable by imprisonment which is described in 18 U.S.C. 16 (i.e., a crime

one of whose elements is the use or threat of physical force or a felony that by its nature involves a substantial risk of

the use of physical force), S. 2123, §102(a)(2); H.R. 3713, §2(a)(2), proposed 18 U.S.C. 3553(h).

S. 2123, §§102(a)(2), 101(a)(1); H.R. 3713, §§3(a)(2), 2(a)(1); proposed 18 U.S.C. 3553(g)(1).

S. 2123, §103; H.R. 3713, §4; proposed 18 U.S.C. 3553(i).

S. 2123, §103; H.R. 3713, §4; proposed 18 U.S.C. 3553(i)(1)(“(1) the defendant does not have a prior conviction for

a serious drug felony or serious violent felony as defined in paragraphs (57) and (58), respectively, of section 102 of the

Controlled Substances Act (21 U.S.C. 802) that was made final prior to the commission of the instant offense”).

S. 2123, §103; H.R. 3713, §4; proposed 18 U.S.C. 3553(i)(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, and the offense did not result in death or serious bodily injury to any person”).

S. 2123, §103; H.R. 3713, §4; proposed 18 U.S.C. 3553(i)(3)(“the defendant did not play an enhanced role in the

offense by acting as an organizer, leader, manager, or supervisor of other participants in the offense, as determined

under the sentencing guidelines, or by exercising substantial authority or control over the criminal activity of a criminal

organization, regardless of whether the defendant was a member of such organization”).

S. 2123, §103; H.R. 3713, §4; proposed 18 U.S.C. 3553(i)(4), (j)(1), (j)(2), (j)(3)(“the defendant did not act as an

importer, exporter, high-level distributor or supplier, wholesaler, or manufacturer of the controlled substances involved

in the offense or engage in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act

(21 U.S.C. 848) ... As used in subsection (i) of this section – (1) the term ‘importer, exporter, or high-level distributor

or supplier’ (A) means a defendant who imported, exported, or otherwise distributed or supplied large quantities of a

controlled substance to other drug distributors; and (B) does not include a defendant whose role was limited to

(continued...)

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713



he did not distribute drugs to or with a child;33 and

he told authorities everything he knew of the offense.34

The mini-safety valve would only apply to future convictions.35

Firearms

There are two firearms-related offenses that call for the imposition of a mandatory minimum

sentence of imprisonment. One, the so-called three strikes provision, also known as the Armed

Career Criminal Act (ACCA), imposes a 15-year mandatory minimum sentence on an offender

convicted of unlawful possession of a firearm who has three prior convictions for a drug offense

or a violent felony.36 The other, 18 U.S.C. 924(c), imposes one of a series of mandatory terms of

imprisonment upon a defendant convicted of the use of a firearm during the course of a drug

offense or a crime of violence.37

The ACCA limits qualifying state and federal drug offenses to those punishable by imprisonment

for more than 10 years.38 The qualifying federal and state violent felonies are burglary, arson,

extortion, the use of explosives, or any other felony which either has the use or threat of physical

force as an element.39 S. 2123 and H.R. 3713 would reduce the mandatory minimum penalty from

15 years to 10 years.40 They would also make the modification retroactively applicable in the

same manner as the proposed mandatory minimum reductions in the case of controlled

substances. That is, they would also permit federal courts to reduce the terms of imprisonment of

defendants previously sentenced, after considering the defendant’s conduct after his initial

sentence, “the nature and seriousness of the danger to any person or the community,” and the

(...continued)

transporting drugs or money at the direction of others; (2) the term ‘manufacturer’ means a defendant who grew,

produced, or manufactured a controlled substance and was the principal owner of such controlled substance; and (3) the

term ‘wholesaler’ means a defendant who sold non-retail quantities of a controlled substance to other dealers or

distributors”).

S. 2123, §103; H.R. 3713, §4; proposed 18 U.S.C. 3553(i)(5)(“the defendant did not distribute a controlled substance

to or with a person under 18 years of age”).

S. 2123, §103; H.R. 3713, §4; proposed 18 U.S.C. 3553(i)(6)(“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 that were part of the same course of conduct or of a common scheme or plan, but the fact that the

defendant has no relevant or useful other information to provide or that the Government is already aware of the

information shall not preclude a determination by the court that the defendant has complied with this requirement”).

S. 2123, §103(b); H.R. 3713, §4(b).

18 U.S.C. 924(e). See, generally, CRS Report R41449, Armed Career Criminal Act (18 U.S.C. 924(e)): An

Overview, by (name redacted)

See, generally, CRS Report R41412, Federal Mandatory Minimum Sentencing: The 18 U.S.C. 924(c) Tack-On in

Cases Involving Drugs or Violence, by (name redacted)

18 U.S.C. 924(e)(2)(A).

18 U.S.C. 924(e)(2)(B). The statute includes a third category of violent felonies: that is, crimes like the enumerated

crimes (burglary, arson, etc.) which presents a serious potential risk of physical injury, 18 U.S.C. 924(e)(2)(B)(ii). The

Supreme Court recently held this third category unconstitutionally vague and an impermissible bases for imposition of

an enhanced sentence under §924(e), Johnson v. United States, 135 S. Ct. 2551, 2563 (2015).

S. 2123, §105(a)(2); H.R. 3713, §6(a)(2); proposed 18 U.S.C. 924(e)(1).

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Sentence Reform Acts: S. 2123 and H.R. 3713

generally applicable sentencing factors of 18 U.S.C. 3553(a).41 Again, however, H.R. 3713’s

retroactivity would only apply to defendants without a prior serious violent felony conviction.42

Section 924(c) brings firearm mandatory minimum tack-on status to any federal drug felony and

to any other federal felony, which either has the use of physical force or threat of physical force

as an element or which by its nature involves a substantial risk of the use of physical force.43

While the ACCA calls for a single 15-year mandatory minimum, §924(c) imposes one of several

different minimum sentences when a firearm is used or possessed in furtherance of another

federal crime of violence or of drug trafficking. The mandatory minimums, imposed in addition

to the sentence imposed for the underlying crime of violence or drug trafficking, vary depending

upon the circumstances:



imprisonment for not less than 5 years, unless one of the higher mandatory

minimums below applies;

imprisonment for not less than 7 years, if a firearm is brandished;

imprisonment for not less than 10 years, if a firearm is discharged;

imprisonment for not less than 10 years, if a firearm is a short-barreled rifle or

shotgun or is a semi-automatic weapon;

imprisonment for not less than 15 years, if the offense involves armor-piercing

ammunition;

imprisonment for not less than 25 years, if the offender has a prior conviction for

violation of §924(c);

imprisonment for not less than 30 years, if the firearm is a machine gun or

destructive device or is equipped with a silencer; and

imprisonment for life, if the offender has a prior conviction for violation of

§924(c) and if the firearm is a machine gun or destructive device or is equipped

with a silencer.44

One of §924(c)’s distinctive features is that its repeat offender provision has been construed to

include conviction of an earlier count within the same prosecution.45 Under this stacking of

counts, a defendant convicted of several counts arising out of a single crime spree involving the

robbery of several convenience stores, for example, may face a mandatory term of imprisonment

of well over 100 years.46

The two sentencing reform bills would make clear that a conviction must have become final

before it could be counted or purposes of enhancing the mandatory minimum.47 They would also

S. 2123, §105(c)(2); H.R. 3713, §6(b)(2).

H.R. 3713, §§6(b)(2), 2(a)(1).

18 U.S.C. 924(c)(2), (3).

18 U.S.C. 924(c)(1), (5).

E.g., United States v. Penny, 576 F.3d 297, 316 (6th Cir. 2009)(“[W]hen two separate predicate offenses for

triggering §924(c)(1) are charged and proved, a defendant may be convicted and sentenced for two separate crimes,

even if both offenses were committed in the course of the same event”); United States v. Sandstrom, 594 F.3d 634, 658

(8th Cir. 2010)(“[M]ultiple underlying offenses support multiple §924(c) convictions”).

E.g., United States v. Richardson, 793 F.3d 612, 633 (6th Cir. 2015)(“We have regularly upheld sentences exceeding

1, 494 months for §924(c) violations related to armed robberies”).

S. 2123, §104(a)(1); H.R. 3713, §5(a)(1); proposed 18 U.S.C. 924(c)(1)(C). The provision would read: “(C) in the

case of a violation of this subsection that occurs after a prior conviction under this subsection or under State law for a

(continued...)

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713

reduce the repeat offender mandatory minimum from imprisonment for not less than 25 years to

not less than 15 years.48 The proposals, however, would expand the repeat offender mandatory

minimum to include recidivists with prior violent state crime convictions. And with one

exception, they would both permit courts to apply the changes retroactively to cases that had

become final, provided they took to account the defendant’s post-conviction conduct, the nature

and seriousness of threats to individual or community safety, and the generally applicable

sentencing factors.49 H.R. 3713 differs from S. 2123 in one respect. It would not afford retroactive

application to a defendant who has a prior conviction for a serious violent felony.50

S. 2123 and H.R. 3713 each have a third firearms amendment that, although not a strict

mandatory minimum amendment, would increase the likelihood of imprisonment by operation of

implementing sentencing guidelines by simply increasing the maximum sentence authorized for

the offense or offenses.51 The two bills would increase from imprisonment for not more than 10

years to not more than 15 years the sentences for the following firearms offenses:52



false statements in connection with the purchase of a firearm or ammunition;53

sale of a firearm or ammunition to, or possession by, a convicted felon or other

disqualified individual;54

while in the employ of a disqualified individual, receipt or possession of a

firearm or ammunition;55

knowing transportation of stolen firearms or ammunition;56

knowing sale, possession, or pledge as security of stolen firearms or

ammunition;57 or

transfer or possession of a machine gun under certain circumstances.58

(...continued)

crime of violence that contains as an element of the offense the carrying, brandishing, or use of a firearm has become

final.”

S. 2123, §104(a)(2); H.R. 3713, §5(a)(2); proposed 18 U.S.C. 924(c)(1)(C)(i).

S. 2123, §104(b)(2); H.R. 3713, §5(b)(2).

H.R. 3713, §5(b)(2).

The maximum penalty which Congress assigns to a crime is one mark of how serious Congress considers the offense.

The Sentencing Guidelines are designed to ensure that comparable offenders receive comparable punishment, U.S.S.G.

ch.1, pt. A, 3. When Congress increases the maximum penalty assigned to a crime, the Sentencing Commission would

ordinarily adjust the pertinent sentencing guideline to reflect the appropriate increased level of severity, and thereby

increase the likelihood of sentencing range that would require imprisonment.

S. 2123, §105(a)(1); H.R. 3713, §6(a)(1); proposed 18 U.S.C. 924(a)(2).

18 U.S.C. 922(a)(6).

18 U.S.C. 922(d), (g). A disqualified individual is one who (1) has been convicted of a felony; (2) is a fugitive from

justice; (3) is an unlawful user or addicted to a controlled substance; (4) has been adjudicated a mental defective; (5) is

an illegal alien; (6) was dishonorably discharged from the Armed Forces; (7) has renounced his U.S. citizenship; (8) is

the subject of certain domestic violence restraining orders; or (9) has been convicted of a domestic violence

misdemeanor, id.

18 U.S.C. 922(h).

18 U.S.C. 922(i).

18 U.S.C. 922(j).

18 U.S.C. 922(o).

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713

Fair Sentencing Act

Originally, the Controlled Substances Act made no distinction between powder cocaine and crack

cocaine (cocaine base).59 The 1986 Anti-Drug Abuse Act introduced a 100-1 sentencing ratio

between the two, so that trafficking in 50 grams of crack cocaine carried the same penalties as

trafficking in 5,000 grams of powder cocaine.60 The 2010 Fair Sentencing Act (FSA) replaced it

with the present 500-28 ratio, so that trafficking in 280 grams of crack cocaine carries the same

penalties as 5,000 grams of powder cocaine.61 The Sentencing Commission subsequently revised

the Sentencing Guidelines to reflect the change and made the modification retroactively

applicable at the discretion of the sentencing court.62

The FSA reductions apply to cocaine offenses committed thereafter. They also apply to offenses

committed beforehand when sentencing occurred after the time of enactment.63 Federal courts

have discretion to reduce a sentence imposed under a Sentencing Guideline that was subsequently

substantially reduced.64 The FSA, however, does not apply to sentences imposed prior to its

enactment,65 and it does not apply in sentence reduction hearings triggered by new Sentencing

Guidelines.66 In such proceedings, the courts remain bound by the mandatory minimums in effect

prior to enactment of the FSA.67

S. 2123 and H.R. 3713, in roughly the same terms, would change that and would allow a court to

reduce a sentence, imposed for an offense committed prior to the FSA, to reflect its provisions,

unless the court had already done so or unless the original sentence was imposed consistent with

the FSA amendments.68

P.L. 91-513, §§401, 1010; 84 Stat. 1260, 1290 (1970); 21 U.S.C. 841, 960 (1970 ed.).

P.L. 99-570, §§1002, 1004; 100 Stat. 3207-2, 3207-6; 21 U.S.C. 841, 960 (1988 ed.).

P.L. 111-220, §2, 124 Stat. 2372, 21 U.S.C. 841, 960.

18 U.S.C. 3582(c); U.S.S.G. 1B1.10; U.S.S.G. App. C, Amends. 750, 759.

Dorsey v. United States, 132 S. Ct. 2321, 2326 (2012).

18 U.S.C. 3582(c)(2).

United States v. Santos-Rivera, 726 F.3d 17, 28 (1st Cir. 2013)(internal citations omitted)(“[I]n United States v.

Goncalves, we joined ten of our fellow Circuit Courts of Appeal in concluding that the FSA is not retroactive for the

benefit of a defendant like Carrasquillo-Ocasio, whose criminal conduct and sentencing occurred before the FSA

became law”); see also, United States v. Hodge, 721 F.3d 1279, 1281 (10th Cir. 2013).

United States v. Swangin, 726 F.3d 205, 208 (D.C.Cir. 2013)(“Finally, we note that every circuit that has addressed

the question post-Dorsey has likewise concluded that courts cannot retroactively apply the Fair Sentencing Act’s new

mandatory minimums in §3582(c)(2) proceedings to defendants who were sentenced before the Act’s effective date”);

United States v. Hodge, 721 F.3d at 1281 (“As an initial matter, the FSA does not provide an independent basis for a

sentence reduction; only the statutory exceptions in 18 U.S.C.§3582 provide such grounds. In a §3582 proceeding, the

court applies the statutory penalties in effect at the time of the original sentencing”).

United States v. Reeves, 717 F.3d 647, 650 (8th Cir. 2013)(“[E]ight of the nine federal circuits to address the issue

have held that the statutory provisions applicable when the defendant was originally sentenced—not the statutory

provisions in the Fair Sentencing Act—apply in section 3582(c)(2) proceedings”). The single contrary opinion was

later vacated for en banc rehearing, United States v. Blewett, 719 F.3d 482 (6th Cir. 2013). The divided Blewett panel

held that defendants sentenced prior to the Fair Sentencing Act’s enactment were entitled to its reductions as a matter

of equal protection, United States v. Blewett, 719 F.3d at 494.

S. 2123, §106(c); H.R. 3713, §7(c). The section, with changes found only in H.R. 3713 in italics and changes found

only in S. 2123 underlined, would read: “No court shall entertain a motion made under this section to reduce a sentence

if the sentence was previously imposed or previously reduced to a sentence greater than the applicable mandatory

minimum in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law

111-220;124 Stat. 2372), or if a motion made pursuant to sections 2 or 3 of the sentencing Act or under this section was

previously denied by a court because a reduction in the defendant’s term of imprisonment would pose a danger to any

person or the community or was denied by a court because of the defendant’s post-sentencing conduct. Nothing in this

(continued...)

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713

New Mandatory Minimums

H.R. 3713 would create no new mandatory minimum sentencing provisions. S. 2123, on the other

hand, would establish two: one for interstate domestic violence offenses and another for certain

violations of the International Emergency Economic Powers Act (IEEPA).

Existing federal law criminalizes interstate domestic violence and interstate stalking, and

penalizes them equally. S. 2123 would establish a mandatory minimum sentence of imprisonment

for not less than 10 years when death resulted from interstate domestic violence.69 In addition, it

would increase the maximum penalties for interstate domestic violence from imprisonment for

not more than 20 years to not more than 25 years when life-threatening or permanent

disfigurement resulted and from imprisonment for not more than 10 years to not more than 15

years when a dangerous weapon was used or serious bodily injury resulted.70 Otherwise, the

Senate proposal would leave the penalties for interstate domestic violence and interstate stalking

unchanged.

IEEPA authorizes the President to exercise various authorities to “deal with any unusual and

extraordinary [overseas threat] ... to the national security, foreign policy or economy of the United

States.” Presidents have used this authority to issue executive orders banning various unlicensed

transactions with various countries, entities, and individuals. IEEPA violations are punishable by

imprisonment for not more than 20 years.71

S. 2123 would create a separate mandatory minimum sentence of imprisonment for not less than

five years for three types of IEEPA violations. One prohibits IEEPA violations that involve

providing defense articles or services as defined by the Arms Export Control Act to countries

under an arms embargo.72 Another prohibits IEEPA violations that involve supplying goods or

services for the foreign development of weapons of mass destruction.73 The third prohibits IEEPA

violations that furnish certain foreign entities with goods and services that are subject to export

restrictions.74

Inventory of Federal Crimes

S. 2123 alone would call for an inventory of federal crimes. Section 109 of the bill would direct

the Attorney General to prepare and provide the House and Senate Committees on the Judiciary

an inventory of federal statutory crimes and of federal regulatory offenses. The compilation of

(...continued)

section shall require a court to reduce any sentence pursuant to this section.”

S. 2123, §107, proposed 18 U.S.C. 2261(b)(1).

S. 2123, §107, proposed 18 U.S.C. 2261(b)(2), (3).

50 U.S.C. 1705.

S. 2123, §108(2), proposed 50 U.S.C. 1705(d)(1), (2)(C), (3)(B), (3)(C). Section 47 of the Arms Export Control Act,

22 U.S.C. 2794(3), (4), defines the term “defense article” to include things like weapons and materials and facilities

used to produce and market weapons. The countries subject to embargo are Iraq, North Korea, and the other countries

listed in 22 C.F.R. §126.1.

S. 2123, §108(2), proposed 50 U.S.C. 1705(d)(1), (2)(B), (3)(E). “Weapons of mass destruction” includes biological,

chemical, and nuclear weapons, as well as explosives, 18 U.S.C. 2332a(c)(2).

S. 2123, §108(2), proposed 50 U.S.C. 1705(d)(1), (2)(A), (3)(A), (3)(D). The entities covered consist of (1) state

sponsors of terrorism, as defined in §6(j)(1)(A) of the Export Administration Act of 1979, 50 U.S.C. App.

2405(j)(1)(A); (2) foreign terrorist organizations as designated under §219(a) of the Immigration and Nationality Act, 8

U.S.C. 1189(a); and (3) persons of Office of Foreign Assets Control’s list of designated nationals and blocked persons.

Congressional Research Service

Sentence Reform Acts: S. 2123 and H.R. 3713

federal statutory crimes would have to identify the penalties, mens rea, and frequency of

prosecution of each offense.75 The compilation of federal regulatory offenses would be organized

by enforcing agency and note the penalties and frequency of prosecution for each.76 The Attorney

General and pertinent agency head would also be responsible for the creation of a publicly

available online index of such offenses.77

Author Contact Information

(name redacted)

Senior Specialist in American Public Law

[redacted]@crs.loc.gov

, 7-....

S. 2123, §109(b).

S. 2123, §109(c).

S. 2123, §109(d).

Congressional Research Service

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