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

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR44226

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** October 14, 2015
- **Citation:** R44226

## Text

Sentence Reform Acts: S. 2123 and H.R. 3713
name redacted
Senior Specialist in American Public Law
October 14, 2015

Congressional Research Service
7-....
www.crs.gov
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
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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
1

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.
2
Discussion of S. 2123’s corrections provisions is beyond the scope of this report.
3
Portions of what follows have been borrowed from CRS Report R44006, Mandatory Minimum Sentencing Legislation
in the 114th Congress, by (name redacted)
.
4
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).
5
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....”).
6
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...)

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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

no change

(c) two or more prior
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

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).

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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

7

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).
9
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.”
10
S. 2123, §101(c)(1); H.R. 3713, §2(c)(1).
11
S. 2123, §101(c)(2); H.R. 3713, §2(c)(2).
12
H.R. 3713, §2(c)(2).
13
H.R. 3713, §§2(a)(3), (b)(3); proposed 21 U.S.C. 841(b)(8), (9); 960(b)(1), (b)(2).
8

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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
14

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)
.
15
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”).
16
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”).
17
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
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”).
19
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”).
20
U.S.S.G. §4A1.1.
21
United States Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal
Criminal Justice System, 355 (October 2011).
22
Id. at 352.
23
Id.

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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
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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

24

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”).
26
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).
27
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).
28
S. 2123, §103; H.R. 3713, §4; proposed 18 U.S.C. 3553(i).
29
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”).
30
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”).
31
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”).
32
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...)
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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”).
33
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”).
34
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”).
35
S. 2123, §103(b); H.R. 3713, §4(b).
36
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)
.
37
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)
.
38
18 U.S.C. 924(e)(2)(A).
39
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).
40
S. 2123, §105(a)(2); H.R. 3713, §6(a)(2); proposed 18 U.S.C. 924(e)(1).

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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:
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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
41

S. 2123, §105(c)(2); H.R. 3713, §6(b)(2).
H.R. 3713, §§6(b)(2), 2(a)(1).
43
18 U.S.C. 924(c)(2), (3).
44
18 U.S.C. 924(c)(1), (5).
45
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”).
46
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”).
47
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...)
42

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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.”
48
S. 2123, §104(a)(2); H.R. 3713, §5(a)(2); proposed 18 U.S.C. 924(c)(1)(C)(i).
49
S. 2123, §104(b)(2); H.R. 3713, §5(b)(2).
50
H.R. 3713, §5(b)(2).
51
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.
52
S. 2123, §105(a)(1); H.R. 3713, §6(a)(1); proposed 18 U.S.C. 924(a)(2).
53
18 U.S.C. 922(a)(6).
54
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.
55
18 U.S.C. 922(h).
56
18 U.S.C. 922(i).
57
18 U.S.C. 922(j).
58
18 U.S.C. 922(o).

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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
59

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.).
61
P.L. 111-220, §2, 124 Stat. 2372, 21 U.S.C. 841, 960.
62
18 U.S.C. 3582(c); U.S.S.G. 1B1.10; U.S.S.G. App. C, Amends. 750, 759.
63
Dorsey v. United States, 132 S. Ct. 2321, 2326 (2012).
64
18 U.S.C. 3582(c)(2).
65
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).
66
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”).
67
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.
68
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...)
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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.”
69
S. 2123, §107, proposed 18 U.S.C. 2261(b)(1).
70
S. 2123, §107, proposed 18 U.S.C. 2261(b)(2), (3).
71
50 U.S.C. 1705.
72
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.
73
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).
74
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.

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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-....

75

S. 2123, §109(b).
S. 2123, §109(c).
77
S. 2123, §109(d).
76

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR44226. Public record. Not legal advice.