Federal Defenders of New York Second Circuit Blog

First Step Act of 2018

“Time credits,” under the First Step Act (as calculated by the Bureau of Prisons), 18 U.S.C. § 3632. A person serving a prison term for multiple offenses of conviction can’t earn “time credits” — under § 3632(d)(4)(A)-(C) — if any of the offenses appear on the list of ineligible offenses in § 3632(d)(4)(D). Charles Giovinco v. Timethea Pullen, Warden, No. 23-251-pr, __ F.4th ____, 2024 WL 4438759 (2d Cir. Oct. 8, 2024) (Chief Judge Livingston; C.J.J.’s Lohier and Menashi).

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1. Background The Petitioner-Appellant appeals from the district court’s denial of a petition for a writ of habeas corpus, under 28 U.S.C. § 2241, in which he contended that the Bureau of Prisons (“BOP”) improperly denied him “earn[ed] time credits” under the First Step Act of 2018 (“FSA”), Pub. L. No. 115-391, 132 Stat. 5194. … Read more

Second Circuit holds that the First Step Act provision limiting the sentencing enhancement based on a prior drug offense does not apply retroactively at a First Step Act resentencing.

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In 2007, Charles Bryant was convicted of conspiracy to distribute 50 grams or more of crack. Since he had a prior conviction for a felony drug offense, he faced a mandatory minimum term of 240 years. The district court sentenced him to 300 months. In 2018, § 404(b) of the First Step Act (“FSA”) made … Read more

Second Circuit holds that district courts may grant compassionate release on expansive grounds and are not limited to the Sentencing Commission’s criteria.

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In United States v. Brooker (Zullo), No. 19-3218, 2020 WL 5739712 (2d Cir. Sept. 25, 2020), the Second Circuit, in an opinion by Judge Calabresi (joined by Judges Winter and Chin), held that the First Step Act of 2018 (“FSA”) empowers district courts evaluating motions for compassionate release to consider any “extraordinary and compelling reasons” … Read more

New York Fifth-Degree Drug Sale Does Not Qualify as “Felony Drug Offense” for Purpose of § 851 Recidivist Enhancement

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In United States v. Jeremy Thompson, 2d Cir. No. 18-2545, __ F.3d ___ (2d Cir. June 8, 2020), the Court held (in an opinion by Judge Walker) that a New York conviction for fifth-degree criminal sale of a controlled substance, in violation of N.Y. Penal Law § 220.31, does not qualify as a “prior conviction … Read more

Eligibility for First Step Act relief depends on the statutory offense for which a defendant was sentenced, not the “actual conduct.”

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The First Step Act of 2018 authorizes district courts to make a discretionary decision about whether and how to reduce a defendant’s sentence, but only if the defendant was sentenced for a “covered offense.” The Act defines a “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified … Read more

Compassionate Release and Covid-19

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Numerous district courts in the Second Circuit and across the country have used the expanded compassionate release provision of the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i), to release at-risk defendants from custody during the Covid-19 crisis. These courts have found that the ongoing Covid-19 pandemic, combined with underlying medical issues that increase a defendant’s risk … Read more

Favorable decision in a First Step Act case, concerning the defendant’s eligibility for relief and the nature of the proceeding under the Act: United States v. Rose, No. 03-CR-1501, _F.3d_, 2019 WL 2314479 (S.D.N.Y. May 24, 2019)

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Section 404 of the First Step Act of 2018,  Pub. L. No. 115-391, 132 Stat. 5194 (2018),  empowers district courts to “impose a reduced sentence” on people who were convicted of certain cocaine base (crack cocaine) offenses before August 3, 2010, when the Fair Sentencing Act of 2010 was enacted. It makes retroactive — to … Read more

Favorable Finding on First Step Act Feature

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  The First Step Act of 2018, Pub. L. 115-391, allows judges to now “impose a reduced sentence” on people sentenced before August 3, 2010, for certain offenses involving 5 grams or more of crack cocaine.  There’s been a lot of litigation on the Act — yielding over 200 written decisions nationally so far — … Read more