First Step Act Section 404 Relief for Crack Cocaine Sentences.

Last Updated on: 20th August 2026, 09:27 pm

Section 404 of the First Step Act is designed to retroactively apply the Fair Sentencing Act (FSA) to individuals sentenced to federal prison for crack cocaine offenses. However, eligibility for relief under Section 404 depends on both the specific statute of conviction and the exercise of judicial discretion.

Definition of Covered Offenses Under Section 404(a)

The first step toward understanding Section 404 relief is understanding when it is available. Section 404(a) defines “covered offenses” based on two primary criteria:

• The individual’s offense must be one for which the statutory penalty was modified under Section 2 or Section 3 of the FSA.
• The individual’s offense must have been committed prior to August 3, 2010.

Reduction Possibilities Under Section 404(b)

If an individual’s conviction meets these criteria, Section 404(b) states that the court may reduce their sentence as if Sections 2 and 3 of the FSA had been in effect at the time the offense was committed. If a conviction is covered, this is the mechanism through which a sentence reduction is possible. However, this does not guarantee a shorter sentence or early release.

The Role of Judicial Discretion

Despite the availability of sentence reductions under Section 404, the First Step Act does not require courts to grant such reductions even when an individual is eligible. As a result, any relief obtained under Section 404 must be specifically requested, and the sentencing court must determine that a reduction is warranted. It is important for defendants and their families to understand that eligibility under Section 404 is merely the first step and does not automatically guarantee a reduced sentence.

Restrictions Under Section 404(c)

Finally, Section 404(c) bars sentence reductions under Section 404 if an individual has previously received a reduction to their sentence under the FSA’s modified penalty provisions. This further complicates the availability of relief, particularly for those who have already sought relief through other means before the First Step Act was passed.

How do crack quantities map onto the Fair Sentencing Act’s federal penalty ranges?

To understand what constitutes a crack-to-powder sentencing disparity, it is first necessary to look at the crack-to-powder disparity under federal law. In federal crack cases, the drug’s quantity is the primary factor in determining a defendant’s sentencing range. Under prior federal crack legislation, the federal crack-to-powder sentencing disparity was 100-to-1. While the same amount of cocaine could lead to substantially different sentencing ranges depending on its form (crack versus powder), the disparity was far greater for cocaine in crack form.

As a result of the Fair Sentencing Act, this disparity was reduced to 18-to-1, which is the disparity under federal law today. But what does that look like in practice? How does this affect crack quantity thresholds and penalty ranges? The answer depends on the specific statutory provision that applies based on the cocaine’s quantity.

Under 21 U.S.C. § 841, three main statutory provisions govern crack sentencing. Each of these provisions contains a specific crack quantity threshold. In 2010, the Fair Sentencing Act modified these thresholds as follows:

Section 841(b)(1)(A)(iii), Substantial Quantities of Crack

Section 841(b)(1)(A)(iii) governs crack cocaine in “substantial amounts.” Under this provision, if a person had 50 grams or more of crack, they would face a ten-year mandatory minimum sentence. However, after the Fair Sentencing Act took effect, the crack quantity threshold for this provision was increased from 50 grams to 280 grams.

Section 841(b)(1)(B)(iii), Moderate Quantities of Crack

Similarly, Section 841(b)(1)(B)(iii) governs crack cocaine in “moderate amounts.” Under this provision, if a person had 5 grams or more of crack, they would face a five-year mandatory minimum sentence. However, after the Fair Sentencing Act took effect, the crack quantity threshold for this provision was increased from 5 grams to 28 grams.

Section 841(b)(1)(C), Smaller Quantities of Crack

Finally, Section 841(b)(1)(C) governs crack cocaine in smaller amounts. If the amount of cocaine in the case is less than 28 grams, then Section 841(b)(1)(C) applies. Unlike the other two provisions, this section of the federal law does not carry a mandatory minimum penalty range; instead, it carries a maximum twenty-year term.

Do Sections 846, 844, and 960 Convictions Qualify Under Section 404?

It is not uncommon for individuals facing federal crack cocaine charges to be convicted under Section 846, rather than Section 841. A defendant convicted of conspiracy to distribute crack cocaine will be sentenced under Section 846, not the drug quantity provision under Section 841. Does a Section 846 conviction still qualify as a covered offense for the purposes of Section 404 relief under the First Step Act?

The answer is yes, but in specific circumstances. To understand when (and why) Section 846 convictions can qualify as covered offenses, it is helpful to understand the scope of the Fair Sentencing Act (FSA). The FSA did not adopt a sweeping change to all aspects of the federal sentencing rules; rather, the FSA specifically addressed federal crack-to-powder sentencing disparities. Specifically, the FSA passed through two primary amendments:

• Fair Sentencing Act Section 2 modified the crack quantity thresholds under 21 U.S.C. § 841(b)(1)(A)(iii) and 21 U.S.C. § 841(b)(1)(B)(iii)
• Fair Sentencing Act Section 3 modified certain crack penalties under 21 U.S.C. § 844

These amendments apply not only to defendants sentenced under Section 841 and Section 844, but also to defendants sentenced under Section 846. For a defendant convicted of conspiracy under Section 846, eligibility for Section 404 relief depends on whether the object offense of the conspiracy is a covered offense. If the object offense is one that would fall under the statutory penalties modified by either Section 2 or Section 3 of the FSA, then a Section 846 conviction constitutes a covered offense for the purposes of Section 404. If the object offense does not qualify as a covered offense, then a Section 846 conviction will not qualify for Section 404 relief.

The firm's New York office sits at 233 Broadway, a short walk from the federal courthouse in lower Manhattan.

What Must an Incarcerated Person File, and How Will the Sentencing Court Review It?

A Section 404 motion is not limited to defendants seeking relief. Under the First Step Act, a Section 404 motion may come from:

• The defendant;
• The sentencing court;
• The United States; or
• The Bureau of Prisons.

Factors at Issue in Exercising Discretion

When exercising discretion, what factors will a district court consider? While the First Step Act does not expressly state which factors a court should consider when deciding whether to grant a sentence reduction under Section 404, courts may consider cocaine quantities that were either judge-found or jury-found.

District Court’s Obligation to Provide Sufficient Explanation

Under the First Step Act, a district court that has the option to reduce a defendant’s sentence must adequately explain its decision to grant or deny a reduction. If a district court’s decision relies on factual determinations that are clearly erroneous, defendants may be entitled to remand.

Appellate Court’s Standard of Review

As demonstrated in the U.S. Court of Appeals for the D.C. Circuit’s discussion of Section 404, appellate courts apply different standards of review to statutory interpretation and discretionary decisions:

• Questions of statutory interpretation are reviewed de novo, meaning that the appellate court will determine the plain meaning of the statute independently and will not give deference to the lower court’s interpretation.
• Questions concerning the district court’s exercise of discretion under Section 404 are reviewed for abuse of discretion. Under this standard, an appellate court will generally only overturn a district court’s decision if the court made a clear error of judgment or failed to provide an adequate explanation for its decision.

Why Might a Qualifying Crack Sentence Still Produce Little or No Earlier Release?

If an individual is eligible for relief under Section 404 of the First Step Act, what does it take to actually get a sentence reduction? Ultimately, it will depend on two primary factors:

• Does applying the Fair Sentencing Act’s penalty provisions to the individual’s conviction result in a sentence that is lower than the existing sentence?
• Does the sentencing court decide to exercise its discretion in the individual’s favor?

The Role of Post-Sentencing Rehabilitation

When determining what type of relief is warranted under the First Step Act, defendants may be able to convince the district court to exercise its discretion in their favor by arguing that they have rehabilitated themselves since their sentencing. In doing so, defendants may be able to present evidence of post-sentencing good conduct and good character in hopes of persuading the sentencing court to reduce their sentence.

The Role of Ineligible Offenses

The First Step Act’s provisions do not apply to all federal offenses. Even if an individual is eligible for relief under Section 404, other counts on the individual’s judgment sentence may carry their own sentencing rules and penalties. In order for a sentence to be reduced under Section 404, it must be reduced by an amount that is not already offset by other ineligible counts. For example, while Section 403 of the First Step Act made substantial amendments to the federal rules regarding firearm-stacking, the First Step Act did not make these amendments retroactive.

The Role of Concurrent and Consecutive Sentences

Finally, whether an individual qualifies for Section 404 relief under the First Step Act depends on how their sentencing court imposed their sentences. If an individual was sentenced to concurrent terms, the sentence reduction they might obtain under Section 404 will be capped at the length of the highest sentence. If an individual was sentenced to consecutive terms, they may be eligible to serve their sentence concurrently, depending on the relevant court’s determination.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.