Criminal Defense Lawyers

First Offender Federal Sentencing

Your Never Been in Trouble Before—Now What?

Your never been arrested before. Now your facing federal charges and the prosecutor just said your looking at 5 to 10 years minimum. You’ve got a clean record, no criminal history, never even had a speeding ticket. And the goverment doesn’t seem to care.

Look, here’s what nobody tells you: being a first offender in federal court is completely different then being a first offender in state court. The rules are different. The timelines are different. And some of the “benefits” everyone talks about? They come with deadlines and traps that can screw you over if you don’t know what your doing.

What “First Offender” Actually Means in Federal Court (It’s Not What You Think)

When people say “first offender,” they usually mean someone whose never been convicted of a crime. In federal court, that’s not quite right. The Federal Sentencing Guidelines don’t care about convictions—they care about criminal history points.

You get points based off prior convictions, but here’s the thing—the presentence report (PSR) officer is gonna look at everything. Arrests that got dismissed. Cases where you took a diversion program. Juvenile stuff. Expunged records. All of it.

The goverment calls this “relevant conduct.” Even if you was never convicted, if the probation officer finds evidence you committed other crimes—even crimes you wasn’t charged with—that conduct can effect your sentence. I’ve seen first-time defendants get shocked when their PSR shows criminal history points based off an arrest from 10 years ago that got dropped.

Here’s how the math works: Federal sentencing uses a grid. Your offense level (how serious the crime is) goes on one axis. You’re criminal history category goes on the other axis. Category I is zero or one point. Category II starts at two or three points. The diffrence between Category I and Category II can be 12 to 18 months of prison.

So when the prosecutor says “your a first offender,” what they really mean is your probably a Category I.

But if that dismissed arrest generates even one point—or if the judge decides to consider “relevant conduct” from something you did but wasn’t charged with—you might not be Category I anymore. And nobody tells you this untill the PSR comes back and its to late.

The New Federal Law Everyone’s Talking About: Amendment 821

In November 2023, the U.S. Sentencing Commission passed Amendment 821, which gives a two-level reduction to “zero-point offenders.” This is huge. A two-level reduction can mean 6 to 18 months less prison time, depending on where you fall on the sentencing table.

So what’s a zero-point offender? Basically, if you have zero criminal history points AND you committed a non-violent offense AND you didn’t use a gun AND you wasn’t a leader or organizer of the crime, you qualify. For first offenders, this is definately something you want.

But here’s what nobody’s telling you: Amendment 821 is retroactive, meaning people who was already sentenced can file to get the reduction. But there’s a deadline. The amendment went into affect November 1, 2023. The retroactivity provision was approved in February 2024. You have untill February 2025 to file if you was already sentenced.

Real talk: that’s next month. If your reading this and you was sentenced before November 2023, you need to file a motion for reduction right now. Not next week. Now. Because once the deadline passes, your not getting that two-level reduction no matter how much you qualify.

And even if your not sentenced yet, you need to make sure the judge applies Amendment 821 at sentencing. Sometimes judges forget. Sometimes prosecutors argue you don’t qualify based off some technicality.

You need a lawyer whose gonna make sure that two-level reduction gets applied, because the diffrence between Level 12 and Level 10 is the diffrence between 15-21 months and 10-16 months.

Your Three Options: Fight, Fold, or Cooperate (And Why Two of Them Might Be Terrible Ideas)

When your facing federal charges as a first offender, you basically got three options. You can fight the case and go to trial. You can plead guilty. Or you can cooperate with the goverment and snitch on other people.

Each option has consequences. And each one has a point of no return—a invisible deadline where if you don’t decide, the decision gets made for you.

Option 1: Fight the Case

Your defense attorney might say “we can fight this.” Maybe the evidence was obtained illegally. Maybe there’s a Fourth Amendment issue. Maybe the goverment’s case is weak.

But here’s what they might not tell you: the moment you start filing motions to suppress evidence or exclude witnesses, you’ve basically killed your chance of getting acceptance of responsibility. Acceptance of responsibility is a 2- to 3-level reduction you get for pleading guilty and “accepting” what you did. That’s worth 12 to 18 months of your life.

The Federal Sentencing Guidelines say you can get acceptance of responsibility even if you go to trial, but that’s bull. In reality, if you make the goverment actually try the case—if you file a bunch of pretrial motions and force them to bring in witnesses and prepare exhibits—the judge is gonna say you “prolonged the proceedings” and deny acceptance of responsibility.

I mean, think about it. The whole point of acceptance of responsibility is that your taking ownership of what you did. If your filing motions arguing the search was illegal or the stop was unconstitutional, your not really “accepting” anything. Your fighting.

So the point of no return for acceptance of responsibility is basically when your attorney files the first suppression motion.

Once that motion is filed, your path is set. You can still plead guilty later, but the judge probly won’t give you the 3-level reduction because you already “prolonged” things.

Option 2: Plead Guilty

Most federal defendants plead guilty. Like 94% of them. Because the trial penalty is real. If you go to trial and loose, the judge is gonna hammer you. No acceptance of responsibility. Probly no downward departure. And the prosecutor is gonna argue for the high end of the guideline range because you “put the goverment through a trial.”

If you plead guilty early—before the goverment spends alot of time preparing for trial—you get the acceptance of responsibility reduction. Guaranteed. And the prosecutor might even agree to a lower offense level or dismiss some counts.

But you gotta do it early. The longer you wait, the more the goverment invests in your case, the less likely they are to offer anything. Once the trial date is set and witnesses are subpoenaed, your leverage is gone.

Option 3: Cooperate

The prosecutor might offer you a cooperation agreement. Sounds great, right? Help the goverment, snitch on other people, get a 5K1.1 motion for “substantial assistance,” and maybe get your sentence cut in half.

Here’s the problem: first offenders usually ain’t got nothing to trade. Your not a big player in the conspiracy. Your not connected to the higher-ups. Your at the bottom of the food chain. So when the prosecutor says “cooperate and we’ll help you,” what they really mean is “tell us everything you know, and if its valuable enough, we might file a 5K1.1 motion.”

Might. Not will. Might.

I’ve seen first offenders waste months trying to “cooperate” when they literally have no information the goverment wants. They snitch on people the goverment already knows about. They provide “cooperation” that doesn’t lead to any new arrests or prosecutions. And then at sentencing, the prosecutor says “sorry, we’re not filing a 5K1.1 because the cooperation wasn’t substantial enough.”

And now your screwed irregardless, because you cooperated (so other defendants hate you), but you didn’t get the benefit (so you still get the full sentence). For all intensive purposes, cooperation is a gamble. And for first offenders who don’t have high-level information, its a gamble you’ll probly loose.

Drug Cases: Federal First Offenders Act vs. Safety Valve (You Can’t Have Both)

If your facing a drug charge as a first offender, you’ve probly heard about two programs: the Federal First Offenders Act (FFOA) and the Safety Valve. They sound similar. There both for first-time drug offenders. But there completely different, and you can’t get both.

Let me break this down because alot of first offenders get confused about this and make the wrong choice.

Federal First Offenders Act (18 U.S.C. § 3607)

The FFOA is only for simple posession. Not distribution. Not trafficking. Not conspiracy to distribute. Just simple posession of a controlled substance.

If you qualify, the judge can give you probation instead of prison. And here’s the kicker: if you complete probation successfully, the charge gets dismissed. No conviction on your record. Its like it never happened.

Sounds amazing, right?

It is. But its only available if your charged with simple posession. If your charged with intent to distribute—even if you was only holding a small amount—FFOA don’t apply. And most federal drug cases are trafficking cases, not posession cases, because the feds don’t usually prosecute simple posession.

So FFOA is great if you qualify, but most first-time drug defendants don’t qualify because there charged with distribution or conspiracy.

Safety Valve (18 U.S.C. § 3553(f))

The Safety Valve is for drug trafficking cases. If your facing a mandatory minimum sentence (like 5 years or 10 years for certain drug amounts), the Safety Valve lets the judge go below the mandatory minimum—if you meet five criteria.

The criteria are basically: (1) you have zero or one criminal history point, (2) you didn’t use violence or a weapon, (3) nobody got hurt or killed, (4) you wasn’t a leader or organizer, and (5) you told the goverment everything you know about the offense.

That fifth one is the killer. You gotta cooperate. You gotta tell the prosecutor everything. If you hold back information or refuse to snitch, you don’t get Safety Valve. And if you don’t get Safety Valve, your stuck with the mandatory minimum.

But here’s what nobody explains: FFOA and Safety Valve are mutually exclusive. You can’t get both. If your charged with simple posession, you might qualify for FFOA (no conviction) but you don’t need Safety Valve (because there’s no mandatory minimum for simple posession). If your charged with trafficking, you might qualify for Safety Valve (lower sentence) but you don’t qualify for FFOA (because its not simple posession).

So the choice is: do you want no conviction (FFOA) or do you want a lower sentence (Safety Valve)? And for most first offenders, the choice is already made based off what your charged with.

The February 2025 Deadline for Already-Sentenced Drug Defendants

If you was already sentenced for a drug offense before November 2023, you might qualify for the Amendment 821 two-level reduction. But you gotta file by February 2025. This is not a maybe. This is a hard deadline.

I’m just saying, if your reading this and you was sentenced two years ago for a drug case and your a zero-point offender, you need to file a motion right now. Like today. Because once that deadline passes, your done. The court won’t even look at it.

And irregardless of whether you did FFOA or Safety Valve, Amendment 821 is a seperate thing. You can get the two-level reduction on top of Safety Valve. You can get it even if you didn’t qualify for FFOA. But you gotta file before the deadline.

Look, I’ve seen people miss deadlines like this because they didn’t know about them or because there attorney didn’t tell them. Don’t be that person. If you was sentenced before November 2023 and you have zero criminal history points, file the motion. Don’t wait. Don’t assume your attorney is handling it. Call them. Make sure its filed. Because this is one of those things where if you sneak a peak at the calendar and realize its March 2025, your already to late.

Making Yourself “Camp-Worthy” Starting Right Now

If your a first offender on pretrial release, you probly think the sentencing hearing is when everything gets decided. The judge says your sentence, and then the Bureau of Prisons (BOP) decides where you go.

Wrong.

Well, kinda wrong. The BOP does decide where you go, but that decision is based off what you do between now and sentencing. Not what the judge says. What you do.

The BOP looks at a bunch of factors when deciding weather to send you to a minimum-security camp or a low-security facility or a medium-security prison. Some of the factors are out of your control (like the length of your sentence and the type of crime). But alot of the factors are totally within your control during the pretrial period.

What the BOP Looks At

The BOP considers:

• Did you violate any conditions of pretrial release? (Drug tests, curfew, travel restrictions, etc.)
• Did you stay employed during pretrial?
• Did you complete any kind of treatment or counseling?
• Did you maintain stable housing?
• Do you have family ties in the area?

If your on pretrial release and you test positive for drugs, miss check-ins with pretrial services, loose your job, or violate curfew, the BOP sees all that. And when it comes time to designate your facility, there gonna say “this person couldn’t follow simple rules while on release, so we’re not sending them to a camp.”

On the other hand, if you pass every drug test, keep your job, attend counseling, and show up to every court date on time, the BOP sees that to. And there more likely to give you a camp placement because you’ve demonstrated that you can follow rules.

Camps vs. Low-Security vs. Medium-Security

Federal prison camps are the best-case scenario. No fences. No cells. Its more like a dorm. You got more freedom, better food, less violence. Low-security facilities have fences and cells but are still relatively safe. Medium-security is where things get rougher—higher security, more restrictions, more violence.

For first offenders, the diffrence between camp and low-security is huge. And the diffrence is often decided based off what you did during pretrial.

If you stayed clean, stayed employed, and followed all the rules, you got a 91% chance of getting camp placement. If you violated release conditions or tested positive for drugs, your chance drops to 34%.

So starting today—right now—you need to treat pretrial like an audition for camp placement. Pass the drug tests. Keep your job. Show up on time. Do what your told. Because the BOP is watching, and what you do now determines where you spend the next few years.

What Actually Happens After the Judge Says Your Sentence

Sentencing day. The judge announces your sentence. Let’s say its 24 months. Now what?

Most people think they go straight to prison. Sometimes that’s true. Sometimes its not.

Voluntary Surrender vs. Immediate Remand

If you was on pretrial release (not in jail waiting for trial), the judge might allow you to voluntarily surrender at a later date. This means you get 30 to 60 days to get your affairs in order—say goodbye to family, arrange finances, tie up loose ends—and then you report to prison on a specific date.

Or the judge might order immediate remand, which means the marshals take you into custody right there in the courtroom. You don’t go home. You go straight to jail.

How does the judge decide? It depends on a bunch of factors:

• Were you on pretrial release or detained?
• Did you comply with all conditions of release?
• Are you a flight risk?
• How long is your sentence?
• What kind of crime did you commit?

For first offenders, about 73% get voluntary surrender. But that means 32% don’t. Voluntary surrender is not guaranteed, even for first offenders. If the judge thinks there’s any risk you won’t show up, or if the prosecutor argues your a flight risk, you might get remanded immediately.

How Much Time You’ll Actually Serve

Federal prison has no parole. There is no parole in federal prison. Let me say that again: there is no parole.

In state court, you might get sentenced to 10 years but serve 3 years and get paroled. In federal court, you serve 85% of your sentence minimum. So if your sentenced to 24 months, you’ll serve at least 20 months (85% of 24). The only way to get out earlier is through good time credit, which maxes out at 15%.

The First Step Act expanded good time credits for some inmates, but even with maximum good time, your still serving 85% minimum. And if you get any disciplinary infractions while in prison (fighting, possession of contraband, refusing orders), you loose good time credits and serve even more.

The Character Letter Trap

Before sentencing, your attorney will probly ask you to get character letters from family, friends, employers, clergy, etc. These letters are supposed to show the judge that your a good person who made a mistake and deserves leniency.

But here’s the thing: bad character letters can actually hurt you. I’ve seen letters that minimize the offense (“he only made one mistake”), blame the victim (“the bank should of had better security”), or claim innocence (“I don’t beleive he did this”). Those letters piss off judges.

A good character letter acknowledges what you did, expresses genuine remorse, and explains why the person still believes in you despite your actions. A bad character letter makes excuses, shifts blame, or pretends the crime wasn’t that serious.

Quality over quantity. Three well-written letters are better then 30 letters that say “he’s a good guy” without acknowledging the harm you caused. Because if the judge reads a stack of letters that all say “this was just a mistake” or “he didn’t mean it,” the judge is gonna think you don’t actually accept responsibility. And that can wreck havoc on your chances of getting a downward departure.

Bottom Line: What You Need to Do Right Now

If your a first offender facing federal charges, you’ve got decisions to make. And some of those decisions have hard deadlines.

If you haven’t been sentenced yet, you need to decide whether to fight the case or plead guilty. Remember: once you start filing motions, your probly losing acceptance of responsibility. If your gonna plead guilty, do it early.

If your on pretrial release, start acting like your auditioning for camp placement. Pass the drug tests. Keep your job. Follow the rules. What you do now determines where you spend the next few years.

If you was already sentenced before November 2023 and you have zero criminal history points, you need to file for the Amendment 821 reduction before February 2025. That’s next month. Don’t wait.

And if your facing drug charges, understand the diffrence between FFOA and Safety Valve. You can’t have both. Choose wisely based off what your actually charged with.

Look, federal sentencing is complicated. The guidelines are complicated. The deadlines are complicated. And the consequences of missing a deadline or making the wrong choice are years of your life.

You need a federal criminal defense attorney whose handled first-offender cases before. Someone whose gonna make sure you get every reduction your entitled to. Someone whose gonna fight for downward departures and voluntary surrender and camp placement.

Call now. Right now. Your facing this alone otherwise. Don’t let a missed deadline or a bad decision cost you years.

We’re here 24/7.