Is Amendment 821 Retroactive? Clarifying Who Qualifies for Reduced Sentences

A recent change in federal law called Amendment 821 now allows some federal prisoners to get their sentences reduced retroactively. This article explains the criteria you need to meet to qualify for one of these retroactive sentence reductions.

What is Amendment 821?

Amendment 821 modified the sentencing guidelines for certain drug offenses. It reduced the penalties for many drug crimes by lowering the sentencing ranges in the Federal Sentencing Guidelines manual. This change applies retroactively, which means some prisoners can get their sentences reduced even if they were sentenced years ago.

Who can get a retroactive reduction?

You may qualify for a reduced sentence if all of these are true:

• You were convicted of a federal drug trafficking offense
• You were sentenced under the old, higher guidelines before November 1, 2023
• You haven’t already gotten the highest possible reduction from the judge at sentencing

The amount your sentence may be reduced depends on how the change to Amendment 821 affects your specific case. Not everyone will get the same reduction in sentence length. Some prisoners will get bigger reductions than others.

What does the change in Amendment 821 actually do?

There are 2 main parts to Amendment 821 that can lower sentences for federal drug crimes:

Part A – Criminal History Changes

Part A reduces the effect of old convictions on someone’s criminal history score under the guidelines. This is done by limiting how much certain old convictions increase the criminal history score. The change helps people who have old convictions that currently exaggerate how much of a repeat offender they are.

Part B – Drug Quantity Changes

Part B reduces sentences for drug offenses by lowering the sentencing ranges for certain drug quantities in the Drug Quantity Table. This helps people who were convicted of drug crimes with those drug amounts.

When does this take effect?

The Sentencing Commission voted to delay the effective date for retroactive reductions under Amendment 821. No reduced sentences can take effect until February 1, 2024. This 3 month delay gives the courts time to review cases and prepare for the changes.

So the first reduced sentences will happen on February 1, 2024 at the earliest. The Commission estimates it will take the courts until October 2024 to process all the applications for reductions under Amendment 821.

How can I apply for a reduced sentence?

You don’t need to apply. The court will review your case automatically if you qualify. By February 2024, the probation office will check your sentence and notify the court if you appear eligible.

The best thing to do is be patient and wait for the court to process your case. Expect it to take through October 2024 before the courts can review every eligible case.

What should I do to prepare?

Make sure your facility’s records are accurate, especially your Presentence Report (PSR) and Judgment. Notify your case manager of any errors in your records related to your conviction and sentence.

Get your own copy of your PSR if possible. Review it to confirm the drug type and quantity you were convicted of match what is in your Judgment. Any mismatches could delay processing your case.

Also start preparing a release plan in case you do get a sentence reduction. Figure out where you will live and work if released earlier than expected.

Can I get released sooner than February 2024?

No, the Commission was very clear that no reduced term of imprisonment can take effect before February 1, 2024. The earliest anyone can get released due to Amendment 821 is February 2024.

The 3 month delay until February 2024 gives the Bureau of Prisons time to process releasing people and get them into reentry programs beforehand.

What if I already got the highest reduction at sentencing?

You won’t qualify if the judge already reduced your sentence as much as possible under the guidelines during your original sentencing. This is called getting a downward departure or variance.

For example, if the old guidelines said your range was 10-12 years, but the judge gave you the lowest possible sentence of 10 years, then your sentence can’t go any lower. You already got the max reduction so Amendment 821 does not help you.

How much could my sentence be reduced?

There is no simple answer, it depends on your specific case. The court will decide the amount of reduction based on how Amendment 821 changes your guideline range.

On average, the Commission estimates people will get a 14 month reduction. But some will get bigger decreases, while others will get less than 14 months off.

What about compassionate release?

You can still apply for compassionate release separately from any reduction under Amendment 821. They are totally different programs.

If you have serious medical issues or family circumstances, you can request compassionate release anytime. Don’t wait for Amendment 821 if you have urgent compassionate issues.

Will everyone who qualifies get a reduction?

No, you have to meet the criteria but the judge will still decide case-by-case. The court can deny a reduction if it finds the new lower sentence would be a risk to public safety or otherwise inappropriate.

There is no guarantee even if you qualify. It is up to the judge’s discretion whether to grant a lower sentence or not.

Can I appeal if I’m denied?

Yes, you can appeal if the court decides you don’t qualify for a lower sentence under Amendment 821. The appeal has to be filed within 14 days of the court’s decision.

But appeals are hard to win because the court has broad discretion. You need a very strong argument about how the court misapplied Amendment 821 in your specific case.

Should I get a lawyer?

Having a lawyer helps but is not required. Many prisoners are submitting applications pro se without a lawyer.

The process is designed to be simple enough to do yourself. But a lawyer who understands Amendment 821 well could increase your odds of getting the maximum reduction.

What else should I know?

Here are a few other things to keep in mind about applying for a reduced sentence under Amendment 821:

• Be patient as it may take through October 2024 to get a final decision from the court.
• The court can adjust your supervised release term even if it does not reduce your prison sentence.
• If you already served your sentence and were released, you generally won’t get any changes to your supervised release.
• The court has to notify any victims in your case before reducing your sentence.
• You may be transferred closer to your release location before the reduction takes effect.

This covers the basics of who qualifies and how the process works. The key is being patient as the courts take months to review cases. Contact a lawyer if you need help speeding up the process or getting the maximum reduction.

References

Here are the references used as sources for this article:

• United States Sentencing Commission Reader-Friendly Version of Retroactivity Amendment
• Federal Criminal Lawyers article on retroactive reductions under Amendment 821
• Federal Register notice on retroactivity of Amendment 821
• Sentencing Guidelines for United States Courts
• Article on retroactivity of Amendment 821 from Varghese Summersett PLLC
• Guide to Amendment 821 from amendment821.com