Sentencing Reform: Comparison of Selected Proposals

Congressional research reportOct 26, 2015

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Sentencing Reform:

Comparison of Selected Proposals

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Legislative Attorney

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October 26, 2015

Congressional Research Service

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R44246

Sentencing Reform: Comparison of Selected Proposals

Summary

This is a comparison of selected criminal sentencing reform bills as introduced: H.R. 3713, H.R.

2944, S. 502, and H.R. 920; and S. 2123 as passed by the Senate Judiciary Committee with a

manager’s amendment. It consists of narrative and charts comparing the bills with respect to

adjustments in the mandatory minimum sentencing provisions that apply to controlled substance

and firearms offenses, the safety valve, and retroactive application of the Fair Sentencing Act

(FSA).

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

Contents

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

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

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

Safety Valve .............................................................................................................................. 7

Firearms .................................................................................................................................. 10

Fair Sentencing Act ................................................................................................................. 15

New Mandatory Minimums .......................................................................................................... 17

Inventory of Federal Crimes .......................................................................................................... 17

Tables

Table 1. Mandatory Minimum Terms of Imprisonment: Controlled Substances ............................ 4

Table 2. Safety Valve ....................................................................................................................... 9

Table 3. Sentencing for Firearms Offenses.................................................................................... 13

Table 4. Retroactivity of the Fair Sentencing Act ......................................................................... 16

Contacts

Author Contact Information .......................................................................................................... 18

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

Introduction

Within a week of each other, Senator Grassley and Representative Goodlatte, respective 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. The

differences between S. 2123 and H.R. 3713, occasioned by the manager’s amendment adopted

before the Senate Judiciary Committee passed S. 2123, are noted in the prefatory remarks for

each chart, and in the remarks relating to the inventory of federal crimes. The subjects of their

proposals appear in earlier proposals including (1) H.R. 2944, which Representatives

Sensenbrenner and Scott, the chairman and ranking minority Member of the House Judiciary

Committee’s crime subcommittee, respectively, introduced for themselves and others, and (2) S.

502/H.R. 920, introduced by Senator Lee and Representative Labrador with additional bipartisan

cosponsors. Their common components notwithstanding, the bills have some varying features.

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.2 Trafficking—that is,

importing, exporting, or manufacturing, growing, 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.3

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.4

S. 2123, H.R. 3713.

Portions of this report have been borrowed from earlier reports on mandatory minimum sentencing 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), 841(b)(1)(B), 960(b)(1), 960(b)(2). The threshold amounts for the substances in

§841(b)(1)(A) are 10 times the threshold amounts for those in §841(b)(1)(B), e.g., for heroin, 1,000 grams (1 kilogram)

v.100 grams. The same ratio applies in the case of exporting or importing these substances, §§960(b)(1), 960(b)(2).

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

Penalties for both sets of offenses increase if the crime results in a death or if the defendant has a

prior conviction for a drug felony.5

The proposed amendments are noted and compared in Table 1. S. 502/H.R. 920 would reduce the

mandatory minimum for the high volume §841(b)(1)(A) and §960(b)(1) offenses to imprisonment

for not less than 5 years from not less than 10 years, and the mandatory minimums for the

medium volume §841(b)(1)(B) and §960(b)(1) offenses to not less than 2 years from not less than

5 years.6

H.R. 2944 would eliminate the mandatory minimum for the high volume §841(b)(1)(A) and

§960(b)(1) offenses, except when the defendant was the organizer or leader of a 5 member or

more drug enterprise. It would eliminate as well the mandatory minimum for the medium volume

§841(b)(1)(B) and §960(b)(2) offenses, except when the defendant was the organizer, leader,

manager, or supervisor of a 5 or more member drug enterprise.7 Moreover, the recidivist

enhancement would only come into play when the prior conviction for an offense carrying a

maximum penalty of imprisonment for 10 years or more; resulting in a sentence of imprisonment

for 13 months or more; and from which the defendant had been released within 10 years of the

commission of the subsequent drug offense.8 H.R. 2944 would allow the court to treat each of its

amendments, here and throughout the course of the bill, as grounds for reduced sentencing, on the

motion of the court, the defendant, the prosecutor, or the Bureau of Prisons.9

S. 2123/H.R. 3713 would create a mini-safety valve to reduce the mandatory minimum for the

high volume §841(b)(1)(A) and §960(b)(1) offenses to imprisonment for not less than 5 years,

unless the offender had used violence in the commission of the offense; had acted as a supervisor

or leader of a drug enterprise; sold to minors; failed to fully reveal all the information or evidence

at his disposal relating to the offense or related offenses; and had no prior serious drug or violent

felony convictions.10

21 U.S.C. 841(b)(1)(A), 841(b)(1)(B), 960(b)(1), 960(b)(2).

S. 502/H.R. 920, §4(a)(2)(A)(i), 4(b)(1)(C), proposed 21 U.S.C. 841(b)(1)(A), 841(b)(1)(B), 960(b)(1), (960(b)(2).

H.R. 2944, §401(a), 4(c), proposed 21 U.S.C. 841(i), 960(e).

H.R. 2944, §403(a), (b), proposed 21 U.S.C. 802(44), (57).

H.R. 2944, §405, proposed 18 U.S.C. 3582(c)(3)(‘‘[I]n the case of a defendant who was sentenced to a term of

imprisonment for an offense for which the minimum or maximum term of imprisonment was subsequently reduced as a

result of the amendments made by the Sensenbrenner-Scott SAFE Justice Reinvestment Act of 2015, upon motion of

the defendant, counsel for the defendant, counsel for the Government, or the Director of the Bureau of Prisons, or, on

its own motion, the court may reduce the term of imprisonment consistent with that reduction, after considering the

factors set forth in subsections (a) and (d) through (g) of section 3553 to the extent applicable. If the court does grant a

sentence reduction, the reduced sentence shall not be less than permitted under current statutory law. If the court denies

a motion made under this paragraph, the movant may file another motion under this subsection, not earlier than 5 years

after each denial, which may be granted if the offender demonstrates the offender’s compliance with recidivismreduction programming or other efforts the offender has undertaken to improve the likelihood of successful re-entry

and decrease any risk to public safety posed by the defendant’s release’’).

S. 2123, §103(a)/H.R. 3713, §4(a), proposed 18 U.S.C. 3553(i). A “serious drug felony” would be a state or federal

offense for which the maximum penalty is imprisonment for not more than 10 years and which resulted in a sentence of

imprisonment for more than 1 year. A “serious violent felony” is an offense which resulted in a sentence of

imprisonment for more than 1 year and is either an assault as described in 18 U.S.C. 113 or an offense described in 18

U.S.C. 3559(c)(2)(F). Under 18 U.S.C. 3559(c)(2)(F), “‘serious violent felony’ means - (i) a 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); ... 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

(continued...)

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

S. 2123/H.R. 3713 would both expand and contract drug recidivist mandatory minimums under

the high volume and medium §§841(b)(1)(A), 841(b)(1)(B), 960(b)(1), and 960(b)(2) offenses.

Under existing law, any prior drug felony conviction triggers the enhanced recidivist mandatory

minimum.11 Under S. 2123/H.R. 3713, only drug convictions carrying a maximum penalty of 10

years or more and resulting in a sentence of a year or more would trigger the increased recidivist

mandatory minimums.12 On the other hand, convictions for kidnapping, burglary, arson or other

serious violent crimes would also serve as a basis for the recidivist mandatory minimums.13

The bills would allow the courts, on their own motion or that of the defendant or the Bureau of

Prisons, to resentence defendants, convicted prior to S. 2123/H.R. 3713’s enactment, as though

the bills’ reduced recidivist mandatory minimums were in place at the time of prior sentencing. In

doing so, the courts would be compelled to consider: the nature and seriousness of the risks to an

individual or the community; the defendant’s conduct following his initial sentencing; and the

statutory sentencing factors which they must ordinarily weigh before imposing punishment.14

S. 2123, but not H.R. 3713, would make it clear that resentencing proceedings would be subject

to the victims’ rights provisions of 18 U.S.C. 3771, and that an inquiry into facts and

circumstances associated with the initial sentencing would be a prerequisite to consideration of a

resentencing motion.15 Section 3771 assures victims of the rights “to reasonable, accurate, and

timely notice of any public court proceeding, involving the crime ...” and “to the right to be

reasonably heard at any public proceeding in the district court involving ... sentencing ...”16

H.R. 3713, but not S. 2123, would insist on a sentence of imprisonment for not more than 5 years

to be added to, and to be served after, any sentence imposed for the drug trafficking, exporting, or

importing offenses, when heroin or fentanyl are involved.17

In addition, H.R. 2944 provides that no person shall be sentenced to enhanced punishment under

the Controlled Substances Act if the conviction was for possession of a controlled substance, was

classified as a misdemeanor in the relevant jurisdiction, or the conviction has been set aside.18

Further, the government bears the burden of proof in proving beyond a reasonable doubt the

existence of the prior conviction.19

(...continued)

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.”

21 U.S.C. 841(b)(1)(A), 841(b)(1)(B), 802(44).

S. 2123, §101(a)(1), (2), 101(b)(1), (2)/H.R. 3713, §2(a)(1), (2), 2(b)(1),(2); proposed 21 U.S.C. 841(b)(1)(A),

841(b)(1)(B), 960(b)(1), 960(b)(2), 802(57).

S. 2123, §101(a)(1), (2), 101(b)(1), (2)/H.R. 3713, §2(a)(1), (2), 2(b)(1),(2); proposed 21 U.S.C. 841(b)(1)(A),

841(b)(1)(B), 960(b)(1), 960(b)(2), 802(58).

S. 2123, §101(c)(2), H.R. 3713, §2(c)(2). H.R. 3713 alone would preclude retroactive application where the prior

offense is a serious violent felony. It is unclear what impact this would have since the bills make serious violent

felonies trigger offenses when they would have been when the pre-bill sentence was imposed.

S. 2123, §101(c)(2).

18 U.S.C. 3771(a)(2), (4).

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

H.R. 2944 §403(f).

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

Table 1. Mandatory Minimum Terms of Imprisonment: Controlled Substances

S. 2123/

H.R. 3713

Present Law

I. Trafficking:

§841(b)(1)(A)/

§960(b)(1) substances

(e.g., 1 kilo + of heroin)

not less than 10

years or more

than life

not less than 10

years or more than

life

but not less than 5

years if: nonviolent;

low-level; all info to

gov’t; no sale to

minors; no serious

drug/violent felony

priors

H.R. 3713 only: add

consecutive sentence

of not more than 5

years if heroin or

fentanyl

not less than 10 years

or more than life

(mandatory minimum

applies only if leader of

5 or more)

[retroactive]

not less than 5

years or more

than life

if death or serious

injury results

not less than 20

years or more

than life

H.R. 3713 only: add

consecutive sentence

of not more than 5

years if heroin or

fentanyl

not less than 20 years

or more than

life(mandatory

minimum applies only if

leader of 5 or more)

[retroactive]

no change

with one prior felony

drug conviction

not less than 20

years or more

than life

not less than 15

years or more than

life only if prior is

serious drug/violent

felony [retroactive]

H.R. 3713 only: add

consecutive sentence

of not more than 5

years if heroin or

fentanyl

not less than 20 years

or more than life - if

prior committed w/i 10

years; penalty for prior

was 10 years or more;

prior resulted in

imprisonment for 13

months or more

(mandatory minimum

applies only if leader of

5 or more)

[retroactive]

not less than 10

years or more

than life

with one prior felony

drug conviction and

death or serious injury

results

life

no change

life - if prior committed

w/i 10 years; penalty for

prior was 10 years or

more; prior resulted in

imprisonment for 13

months or more

(mandatory minimum

applies only if leader of

5 or more)

[retroactive]

no change

with two or more

prior felony drug

convictions

life

not less than 25

years or more than

life only if priors are

serious drug/violent

felony [retroactive]

life- if prior committed

w/i 10 years; penalty for

prior was 10 years or

more; prior resulted in

imprisonment for 13

months or more

(mandatory minimum

applies only if leader of

5 or more)

[retroactive]

not less than 25

years

Congressional Research Service

H.R. 2944

S. 502/

H.R. 920

Offense

Sentencing Reform: Comparison of Selected Proposals

S. 2123/

H.R. 3713

Present Law

II. Trafficking:

§841(b)(1)(B)/§960(b)(2)

substance (e.g., 100g +

of heroin)

not less than 5

years or more

than 40 years

H.R. 3713 only: add

consecutive sentence

of not more than 5

years if heroin or

fentanyl

not less than 5 years or

more than 40 years

(mandatory minimum

applies only if the

leader or supervisor of

5 or more)

[retroactive]

not less than 2

years or more

than 40 years

if death or serious

injury results

not less than 20

years or more

than life

H.R. 3713 only: add

consecutive sentence

of not more than 5

years if heroin or

fentanyl

not less than 20 years

or more than life

(mandatory minimum

applies only if the

leader or supervisor of

5 or more)

[retroactive]

no change

with one prior felony

drug conviction

not less than 10

years or more

than life

not less 10 years or

more than life only if

prior is serious

drug/violent felony

[retroactive]

H.R. 3713 only: add

consecutive sentence

of not more than 5

years if heroin or

fentanyl

not less than 10 years

or more than life if

prior committed w/i 10

years; penalty for prior

was 10 years or more;

prior resulted in

imprisonment for 13

months or more

(mandatory minimum

applies only if the

leader or supervisor of

5 or more)

[retroactive]

not less than 5

years or more

than life

with one prior felony

drug conviction and

death or serious injury

results

life

no change

if prior committed w/i

10 years; penalty for

prior was 10 years or

more; prior resulted in

imprisonment for 13

months or more

(mandatory minimum

applies only if the

leader or supervisor of

5 or more)

[retroactive]

no change

III. Trafficking:

§841(b)(1)(C)/

§960(b)(3), except per

(b)(1)(A), (B), or (D),

sch. I or II drugs, GHB,

or 1 gram of Rohypnol

not more than 20

years

H.R. 3713 only: add

consecutive sentence

of not more than 5

years if heroin or

fentanyl

only if type and quantity

of (b)(1)(A) or (B)

substances and part of

5 or more member

trafficking group but

not a leader or

supervisor

no change

if death or serious

injury results

not less than 20

years or more

than life

H.R. 3713 only: add

consecutive sentence

of not more than 5

years if heroin or

fentanyl

only if type and quantity

of (b)(1)(A) or (B)

substances and part of

5 or more member

trafficking group but

not a leader or

supervisor [retroactive]

no change

Congressional Research Service

H.R. 2944

S. 502/

H.R. 920

Offense

Sentencing Reform: Comparison of Selected Proposals

S. 2123/

H.R. 3713

H.R. 2944

S. 502/

H.R. 920

Offense

Present Law

with one prior felony

drug conviction

not more than 30

years

H.R. 3713 only: add

consecutive sentence

of not more than 5

years if heroin or

fentanyl

if prior committed w/i

10 years; penalty for

prior was 10 years or

more; prior resulted in

imprisonment for 13

months or more and

only if type and quantity

of (b)(1)(A) or (B)

substances and part of

5 or more member

trafficking group but

not a leader or

supervisor [retroactive]

no change

with one prior felony

drug conviction and if

death or serious injury

results

life

no change

if prior committed w/i

10 years; penalty for

prior was 10 years or

more; prior resulted in

imprisonment for 13

months or more and

only if type and quantity

of (b)(1)(A) or (B)

substances and part of

5 or more member

trafficking group but

not a leader or

supervisor [retroactive]

no change

IV. Trafficking:

§841(b)(1)(D)/

§960(b)(4), 50 kilo. or

less of marijuana or 10

kilo. of hashish

not more than 5

years

no change

only if type and quantity

of (b)(1)(A) or (B)

substances and part of

5 or more member

trafficking group but

not a leader or

supervisor [retroactive]

no change

with one prior felony

drug conviction

not more than 10

years

no change

if prior committed w/i

10 years; penalty for

prior was 10 years or

more; prior resulted in

imprisonment for 13

months or more and

only if type and quantity

of (b)(1)(A) or (B)

substances and part of

5 or more member

trafficking group but

not a leader or

supervisor [retroactive]

no change

Source: CRS from S. 2123, H.R. 3713, H.R. 2944, S. 502, and H.R. 920.

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

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.20 To qualify, a defendant may not have used violence in the course of the

offense.21 He must not have played a managerial role in the offense if it involved group

participation.22 The offense must not have resulted in a death or serious bodily injury.23 The

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

with all the information and evidence at his disposal.24 Finally, the defendant must have an almost

spotless criminal record, that is, not more than 1 criminal history point.25

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.26

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.27 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.”28 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.29 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.

U.S. Sentencing Commission, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal

Justice System, 355 (Oct. 2011).

Id. at 352.

Id.

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

minimums for repeat offenders.30 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.31

S. 502/H.R. 920 would raise the qualification threshold to 3 criminal history points from 1

criminal history point and make no further changes.32

H.R. 2944 would expand the safety valve to mandatory minimums associated with the use of

firearm during and in furtherance of a drug trafficking cases as well as to drug trafficking

mandatory minimums.33 The bill would also raise the criminal history point threshold to 3 as long

as the defendant’s prior criminal record did not consist of convictions for violence, firearms,

racketeering, terrorism, or sex offenses.34 H.R. 2944 would also discount convictions that were

the product of a reduced, distressed, or coerced state of mind.35

S. 2123 and H.R. 3713 would change the safety valve as well. First, a defendant would be safety

valve eligible with 3 or fewer criminal history points if he 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).36

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.37

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. 502/H.R. 920, §2, proposed 18 U.S.C. 3553(f)(1).

H.R. 2944, §402(a)(1), proposed 18 U.S.C. 3553(f).

H.R. 2944, §402(a)(2); proposed 18 U.S.C. 3553(f)(1)(A), (B) would read: “(1) the defendant – (A) does not have a

criminal history category higher than I after any downward departure under the sentencing guidelines; (B) does not

have – (i) a criminal history category higher than II after any downward departure under the sentencing guidelines; (ii)

any prior conviction for an offense that has as an element the use, attempted use, or threatened use of physical force

against the person of another; and (iii) the offense of conviction that is – (I) an offense under section 922 or 924; (II) a

sex offense (as defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006); (III) a Federal

crime of terrorism (as defined in section 2332b(g)(5)); (IV) a racketeering offense under section 1962; or (V)

conspiring to use and invest illicit drug profits under section 414 of the Controlled Substances Act.”

H.R. 2944, §402(a)(2); proposed 18 U.S.C. 3553(f)(1)(C)(“committed the offense as the result of – (i) mental illness,

cognitive deficits, or a history of persistent or serious substance abuse or addiction; (ii) financial, emotional, or mental

distress; (iii) trauma suffered while serving on active duty in an armed conflict zone for a branch of the United States

military; or (iv) victimization stemming from any combination of physical, mental, emotional, or psychological abuse

or domestic violence, if the offense was committed at the direction of another individual who – (I) was a more culpable

participant in the instant offense or played a significantly greater role in the offense; or (II) effectively coerced the

defendant’s involvement in the offense by means of threats or abuse either personally or from any person or group’’).

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).

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Sentencing Reform: Comparison of Selected Proposals

Table 2. Safety Valve

General

Covered

Offenses/Qualifications

S. 2123/

H.R. 3713

H.R. 2944

S. 502/

H.R. 920

18 U.S.C. 3553(f):

Court may

sentence under

the USSG w/o

regard to the

statutory

mandatory

minimums

Covered offenses: 21 U.S.C.

841, 846, 960, 963

(trafficking controlled

substances/attempt)

no change

21 U.S.C. 841, 846,

960, 963 (trafficking

controlled

substances/attempt)

and 18 U.S.C.

924(c)(firearm

possession in

furtherance) in relation

to drug trafficking

no change

each prior

sentence of less

than 60 days = 1

criminal history

point

each prior

sentence of 60

days or up to 13

months = 2

criminal history

points

each prior

sentence of 13

months or more

= 3 criminal

history points

(category I = 0 or

1 point; category

II = 2 or 3 points)

(1) no more than 1 criminal

history point

no more than 4

criminal history

points; but

no 3-point prior

sentences;

no 2-point drug

trafficking or

violent offense

prior convictions

court may waive

the qualification if

it concludes the

point total over

represents

criminal history

or prospect of

recidivism

no more than 1

criminal history point;

no more than 3

criminal history points;

and no violent,

firearms, sex,

terrorism, racketeering,

or conspiracy to use of

invest drug profits

convictions; OR

offense committed as a

result of: mental illness

or drug addiction;

financial, emotional, or

mental distress; combat

induced trauma; or

direction or coercion

of a victim of abuse or

domestic violence

no more than 3

criminal history

points

(2) no use of threats,

violence, or firearms

no change

(2) no use of threats

or violence

no change

(3) no resulting death or

serious bodily injury

no change

(4) not a leader or

supervisor and not part of

§848 (drug kingpin)

enterprise

no change

(4) not a leader or

supervisor of a group

of 5 or more and not

part of §848 (drug

kingpin) enterprise

no change

(5) tell all

no change

information may not be

used in USSG

calculations

no change

Source: CRS from S. 2123, H.R. 3713, H.R. 2944, S. 502, and H.R. 920.

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

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.38 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.39

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

for more than 10 years.40 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.41 S. 2123 and H.R. 3713 would reduce the mandatory minimum penalty from

15 years to 10 years.42 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

generally applicable sentencing factors of 18 U.S.C. 3553(a).43 Again, however, H.R. 3713’s

retroactivity would only apply to defendants without a prior serious violent felony conviction.44

In contrast, H.R. 2944 does not reduce these mandatory minimum penalties. However, it alters the

definition of a “serious drug offense” to one punishable by imprisonment for not more than 10

years, resulting in a sentence of more than 13 months, conviction for which occurred within the

last 10 years not counting time in prison.45 In addition it alters the definition of “violent felony” to

require a sentence of imprisonment for 13 months.46 Further, it provides that an individual may

not be sentenced under the provision unless the U.S. Attorney files an information with the

court—served on the defendant or counsel—specifying the previous convictions to be relied

upon.47

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.48

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 present 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).

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

H.R. 3713, §§6(b)(2), 2(a)(1).

H.R. 2944 §403(c).

H.R. 2944 §403(d).

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

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

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.49

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.50 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.51

S. 2123 and H.R. 3713 would make clear that a conviction must have become final before it could

be counted for purposes of enhancing the mandatory minimum.52 They would also reduce the

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

than 15 years.53 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 into account the defendant’s post-conviction conduct, the nature and

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

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

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).

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

factors.54 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.55 S. 2123 differs

from H.R. 3713 in one respect. As it would do in case of drug mandatory adjustments, it would

make it clear that resentencing proceedings would be subject to the victims’ rights provisions of

18 U.S.C. 3771, and that an inquiry into facts and circumstances associated with the initial

sentencing would be a prerequisite to consideration of a resentencing motion.56 Section 3771

assures victims of the rights “to reasonable, accurate, and timely notice of any public court

proceeding, involving the crime ...” and “to the right to be reasonably heard at any public

proceeding in the district court involving ... sentencing ...”57

While H.R. 2944 also requires that a conviction be final to be counted for purposes of enhancing

the mandatory minimum, it does not reduce the repeat offender mandatory minimum from

imprisonment.58 In addition, the bill would modify the current statutory trigger’s “during and in

relation to any crime of violence or drug trafficking crime” language to “not include any

possession not on the person of, or within arm’s reach and otherwise readily and immediately

accessible to the defendant at the time and place of the offense.”59

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.60 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:61



false statements in connection with the purchase of a firearm or ammunition;62

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

disqualified individual;63

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

firearm or ammunition;64

knowing transportation of stolen firearms or ammunition;65

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

H.R. 3713, §5(b)(2).

S. 2123, §§104(b)(2), 105(b)(2).

18 U.S.C. 3771(a)(2), (4).

H.R. 2944 §421.

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).

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals



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

ammunition;66 or

transfer or possession of a machine gun under certain circumstances.67

In contrast, H.R. 2944 contains no such provision.

Table 3. Sentencing for Firearms Offenses

S. 2123/

H.R. 3713

Present Law

I. 18 U.S.C.

924(a)(2)(penalty

for §922 firearms

offenses)

violations of the

following subsections

of 18 U.S.C. 922 are

punishable by

imprisonment for

not more than 10

years:

violations of the

following subsections of

18 U.S.C. 922 are

punishable by

imprisonment for not

more than 15 years:

no change

(a)(6) false

statements in the

acquisition of a

firearm

no change

(d) sale of a firearm

to an ineligible

person

no change

(g) possession of a

firearm by an

ineligible person

no change

(i) interstate

transportation of a

stolen firearm

no change

(j) possession of a

stolen firearm that

has travelled in

interstate commerce

no change

(o) unlawful transfer

of a machinegun

no change

imprisonment for

not less than 15

years for firearm

possession by an

ineligible person w/ 3

prior violent felony

or serious drug

convictions

imprisonment for not

less than 10 years for

firearm possession by an

ineligible person w/ 3

prior violent felony or

serious drug convictions

[retroactive but H.R.

3713 bars retroactivity

when the prior

conviction is for a

serious violent felony]

no change

II. 18 U.S.C.

924(e)(Armed

Career Criminal)(3

strikes)

H.R. 2944

S. 502/

H.R. 920

Offense

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

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

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Sentencing Reform: Comparison of Selected Proposals

Offense

III. Various

mandatory

minimums for

firearm possession

associated w/ drug

trafficking and

violent felony, 18

U.S.C. 924(c)

Present Law

S. 2123/

H.R. 3713

H.R. 2944

S. 502/

H.R. 920

“serious drug

offense” = one

punishable by

imprisonment for

not more than 10

years

no change

“serous drug offense” =

one punishable by

imprisonment for not

more than 10 years,

resulting a sentence of

more than 13 months,

conviction for which

occurred w/i 10 years

(not counting time in

prison)

no change

“violent felony” =

burglary, arson,

extortion felony or

felony with use of

physical force

element

no change

“violent felony” =

burglary, arson,

extortion felony or

felony with use of

physical force element,

resulting a sentence of

more than 13 months

no change

includes ct. finding of

a juvenile involved in

a violent felony

no change

includes ct. finding of a

juvenile involved in a

violent felony, but does

not include a finding

which occurred more

than 10 years ago (not

counting time in prison)

no change

imprisonment for

not less than 25

years for carrying of

a firearm during and

in relation to, or

possession in

furtherance of, a

crime of violence or

drug trafficking

offense, in the case

of second or

subsequent

conviction

imprisonment for not

less than 15 years for

carrying of a firearm

during and in relation to,

or possession in

furtherance of, a crime

of violence or drug

trafficking offense, in the

case of second or

subsequent conviction

[retroactive; but H.R.

3713 bars retroactivity

when the prior

conviction is for a

serious violent felony]

imprisonment for not

less than 25 years for

carrying of a firearm

during and in relation

to, or possession in

furtherance of, a crime

of violence or drug

trafficking offense, in

the case of second or

subsequent conviction

no change

“during and in relation

to” = possession on the

person or within easy

reach

no change

prior conviction must be

final to be counted

[retroactive]

prior conviction must

be final to be counted

no change

permits treating

conviction of

successive counts w/I

the same

prosecution as

“second or

subsequent

convictions”

Source: CRS from S. 2123, H.R. 3713, H.R. 2944, S. 502, and H.R. 920.

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

Fair Sentencing Act

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

cocaine (cocaine base).68 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.69 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.70 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.71

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

committed beforehand when sentencing occurred after the time of enactment.72 Federal courts

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

substantially reduced.73 The FSA, however, does not apply to sentences imposed prior to its

enactment,74 and it does not apply in sentence reduction hearings triggered by new Sentencing

Guidelines.75 In such proceedings, the courts remain bound by the mandatory minimums in effect

prior to enactment of the FSA.76

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.77 H.R. 2944 would simply make the FSA retroactively applicable.78

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. 3707-2, 3207-6 (1986); 21 U.S.C. 841, 960 (1988 ed.).

P.L. 111-220, §2; 124 Stat. 2372 (2010); 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 (eff. Nov. 1, 2012).

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 other Circuit Courts of Appeal in concluding that the FSA is not retroactive for the benefit of

a defendant like Carrasquillo-Oscasio, 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. §3882 provide such grounds. In a §3882 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 option 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 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 appearing 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 111-120; 124 Stat. 2372), or if a previous motion made pursuant to sections 2 or 3 of the

Sentencing Act or under this section to reduce the sentence was, after the date of enactment of the Act, denied after a

complete review of the motion on the merits denied by a court because a reduction in the defendant’s term of

(continued...)

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

Table 4. Retroactivity of the Fair Sentencing Act

Offense

Present Law

FSA, P.L. 111-220

(2010) increased

the amounts of

crack cocaine

need to trigger

mandatory

minimum

sentences

amendments are

ordinarily not

retroactive

S. 2123/

H.R. 3713

H.R. 2944

S. 502/

H.R. 920

a court may reduce a

sentence for pre-FSA

offenses to reflect FSA

changes on its own

motion or that of the

defendant, Bureau of

Prisons, or prosecutor,

but:

a court may reduce a

sentence for pre-FSA

offenses to reflect FSA

changes on its own

motion or that of the

defendant, Bureau of

Prisons, or prosecutor

a court may reduce a

sentence for pre-FSA

offenses to reflect FSA

changes on its own

motion or that of the

defendant, Bureau of

Prisons, or prosecutor,

but:

court is not required

to reduce; and may not

if:

no comparable

provision

court is not required

to reduce; and may not

if:

S. 2123 only: the

sentence was already

imposed or reduced to

reflect FSA changes;

H.R. 3713 only: the

sentence already

imposed or reduced to

a one greater that FSA

mandatory minimum;

no comparable

provision

no comparable

provision

a motion under this

section to reduce has

already been denied;

also under H.R. 3713, a

motion under FSA to

reduce has already

been denied

no comparable

provision

a motion under this

section or FSA to

reduce has already

been denied

Source: CRS from S. 2123, H.R. 3713, H.R. 2944, S. 502, and H.R. 920.

(...continued)

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 section shall require a court to reduce any sentence pursuant to

this section.”

H.R. 2944, §404(a)(“A court that imposed a sentence for a covered offense, may, on motion of the defendant, the

Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if

sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect as the time the covered offense was committed”).

Congressional Research Service

Sentencing Reform: Comparison of Selected Proposals

New Mandatory Minimums

H.R. 3713 and H.R. 2944 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.79 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.80 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.81

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.82 Another prohibits IEEPA violations that involve supplying goods or

services for the foreign development of weapons of mass destruction.83 The third prohibits IEEPA

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

restrictions.84

In contrast, H.R. 2944 does not create new mandatory minimum sentences for crimes.

Inventory of Federal Crimes

S. 2123 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

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

Sentencing Reform: Comparison of Selected Proposals

federal statutory crimes would have to identify for each offense: the attendant penalties and mens

rea; the number of referrals for prosecution, prosecutions, convictions, and sentences imposed; as

well as the number of prosecutions which did not require proof of a mens rea.85 The compilation

of federal regulatory offenses would be organized by enforcing agency and would require the

same information for regulatory offenses as required for statutory offenses.86 The Attorney

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

available online index of such offenses.87 Similarly, H.R. 2944 requires the Attorney General to

produce and publish a list of “the various Federal law violations that carry criminal penalties.”88

In addition, federal agencies must obtain the Attorney General’s approval to add a criminal

penalty to an agency regulation.89 Finally, the Attorney General must develop procedures to

provide coordination between the Department of Justice and other federal agencies to determine

whether criminal or civil penalties are most appropriate to address unlawful conduct that involves

federal agencies; and to coordinate between federal and state law enforcement officers to reduce

duplicative prosecutions.90

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov

, 7-....

(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).

H.R. 2944 §101(a).

H.R. 2944 §101(b).

H.R. 2944 §102(a).

Congressional Research Service

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