II 

115TH CONGRESS 

1ST SESSION S. 1933 

To focus limited Federal resources on the most serious offenders. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 5, 2017 

Mr. LEE (for himself, Mr. DURBIN, Mr. FLAKE, Mr. LEAHY, Mr. BOOKER, 

Mr. WHITEHOUSE, Mr. FRANKEN, Mr. BLUMENTHAL, Mr. UDALL, Mr. 

WYDEN, Mr. SCHATZ, Mr. KING, Mr. PETERS, Mr. MARKEY, Ms. 

DUCKWORTH, Mr. SANDERS, Mr. HEINRICH, Mr. COONS, Mr. MERKLEY, 

Mr. KAINE, and Ms. BALDWIN) introduced the following bill; which was 

read twice and referred to the Committee on the Judiciary 

A BILL 

To focus limited Federal resources on the most serious 

offenders. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Smarter Sentencing 

5 Act of 2017’’. 

6 SEC. 2. APPLICABILITY OF STATUTORY MINIMUMS. 

7 Section 3553(f)(1) of title 18, United States Code, 

8 is amended by striking ‘‘defendant’’ and all that follows 


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1 through ‘‘point’’ and inserting ‘‘criminal history category 

2 for the defendant is not higher than category 2’’. 

3 SEC. 3. CLARIFICATION OF APPLICABILITY OF THE FAIR 

4 SENTENCING ACT. 

5 (a) DEFINITION OF COVERED OFFENSE.—In this 

6 section, the term ‘‘covered offense’’ means a violation of 

7 a Federal criminal statute, the statutory penalties for 

8 which were modified by section 2 or 3 of the Fair Sen9 tencing Act of 2010 (Public Law 111–220; 124 Stat. 

10 2372), that was committed before August 3, 2010. 

11 (b) DEFENDANTS PREVIOUSLY SENTENCED.—A 

12 court that imposed a sentence for a covered offense, may, 

13 on motion of the defendant, the Director of the Bureau 

14 of Prisons, the attorney for the Government, or the court, 

15 impose a reduced sentence as if sections 2 and 3 of the 

16 Fair Sentencing Act of 2010 (Public Law 111–220; 124 

17 Stat. 2372) were in effect at the time the covered offense 

18 was committed. 

19 (c) LIMITATIONS.—No court shall entertain a motion 

20 made under this section to reduce a sentence if the sen21 tence was previously imposed or previously reduced in ac22 cordance with the amendments made by sections 2 and 

23 3 of the Fair Sentencing Act of 2010 (Public Law 111– 

24 220; 124 Stat. 2372) or if a motion made under this sec25 tion to reduce the sentence was previously denied. Nothing 


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1 in this section shall be construed to require a court to re2 duce any sentence pursuant to this section. 

3 SEC. 4. SENTENCING MODIFICATIONS FOR CERTAIN DRUG 

4 OFFENSES. 

5 (a) CONTROLLED SUBSTANCES ACT.—The Con6 trolled Substances Act (21 U.S.C. 801 et seq.) is amend7 ed— 

8 (1) in section 102 (21 U.S.C. 802), by adding 

9 at the end the following: 

10 ‘‘(57) The term ‘courier’ means a defendant 

11 whose role in the offense was limited to transporting 

12 or storing drugs or money.’’; and 

13 (2) in section 401(b)(1) (21 U.S.C. 

14 841(b)(1))— 

15 (A) in the flush text following clause 

16 (viii)— 

17 (i) by striking ‘‘10 years or more’’ 

18 and inserting ‘‘5 years or more’’; 

19 (ii) by striking ‘‘such person shall be 

20 sentenced to a term of imprisonment which 

21 may not be less than 20 years and’’ and 

22 inserting ‘‘such person shall be sentenced 

23 to a term of imprisonment of not less than 

24 10 years and’’; and 


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1 (iii) by striking ‘‘mandatory term of 

2 life imprisonment without release’’ and in3 serting ‘‘term of imprisonment of not less 

4 than 25 years’’; and 

5 (B) in the flush text following clause 

6 (viii)— 

7 (i) by striking ‘‘5 years’’ and inserting 

8 ‘‘2 years’’; and 

9 (ii) by striking ‘‘not be less than 10 

10 years’’ and inserting ‘‘not be less than 5 

11 years’’. 

12 (b) CONTROLLED SUBSTANCES IMPORT AND EXPORT

13 ACT.—Section 1010(b) of the Controlled Substances Im14 port and Export Act (21 U.S.C. 960(b)) is amended— 

15 (1) in paragraph (1), in the flush text following 

16 subparagraph (H)— 

17 (A) by inserting ‘‘, other than a person 

18 who is a courier,’’ after ‘‘such violation’’; 

19 (B) by striking ‘‘person commits’’ and in20 serting ‘‘person, other than a courier, com21 mits’’; and 

22 (C) by inserting ‘‘If a person who is a cou23 rier commits such a violation, the person shall 

24 be sentenced to a term of imprisonment of not 

25 less than 5 years and not more than life. If a 


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1 person who is a courier commits such a viola2 tion after a prior conviction for a felony drug 

3 offense has become final, the person shall be 

4 sentenced to a term of imprisonment of not less 

5 than 10 years and not more than life.’’ before 

6 ‘‘Notwithstanding section 3583’’; and 

7 (2) in paragraph (2), in the flush text following 

8 subparagraph (H)— 

9 (A) by inserting ‘‘, other than a person 

10 who is a courier,’’ after ‘‘such violation’’; 

11 (B) by striking ‘‘person commits’’ and in12 serting ‘‘person, other than a courier, com13 mits’’; and 

14 (C) by inserting ‘‘If a person who is a cou15 rier commits such a violation, the person shall 

16 be sentenced to a term of imprisonment of not 

17 less than 2 years and not more than life. If a 

18 person who is a courier commits such a viola19 tion after a prior conviction for a felony drug 

20 offense has become final, the person shall be 

21 sentenced to a term of imprisonment of not less 

22 than 5 years and not more than life.’’ before 

23 ‘‘Notwithstanding section 3583’’. 


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1 SEC. 5. DIRECTIVE TO THE SENTENCING COMMISSION. 

2 (a) DIRECTIVE TO SENTENCING COMMISSION.—Pur3 suant to its authority under section 994(p) of title 28, 

4 United States Code, and in accordance with this section, 

5 the United States Sentencing Commission shall review and 

6 amend, if appropriate, its guidelines and its policy state7 ments applicable to persons convicted of an offense under 

8 section 401 of the Controlled Substances Act (21 U.S.C. 

9 841) or section 1010 of the Controlled Substances Import 

10 and Export Act (21 U.S.C. 960) to ensure that the guide11 lines and policy statements are consistent with the amend12 ments made by sections 2 and 4 of this Act and reflect 

13 the intent of Congress that such penalties be decreased 

14 in accordance with the amendments made by section 4 of 

15 this Act. 

16 (b) CONSIDERATIONS.—In carrying out this section, 

17 the United States Sentencing Commission shall con18 sider— 

19 (1) the mandate of the United States Sen20 tencing Commission, under section 994(g) of title 

21 28, United States Code, to formulate the sentencing 

22 guidelines in such a way as to ‘‘minimize the likeli23 hood that the Federal prison population will exceed 

24 the capacity of the Federal prisons’’; 

25 (2) the findings and conclusions of the United 

26 States Sentencing Commission in its October 2011 


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1 report to Congress entitled, Mandatory Minimum 

2 Penalties in the Federal Criminal Justice System; 

3 (3) the fiscal implications of any amendments 

4 or revisions to the sentencing guidelines or policy 

5 statements made by the United States Sentencing 

6 Commission; 

7 (4) the relevant public safety concerns involved 

8 in the considerations before the United States Sen9 tencing Commission; 

10 (5) the intent of Congress that penalties for 

11 violent, repeat, and serious drug traffickers who 

12 present public safety risks remain appropriately se13 vere; and 

14 (6) the need to reduce and prevent racial dis15 parities in Federal sentencing. 

16 (c) EMERGENCY AUTHORITY.—The United States 

17 Sentencing Commission shall— 

18 (1) promulgate the guidelines, policy state19 ments, or amendments provided for in this Act as 

20 soon as practicable, and in any event not later than 

21 120 days after the date of enactment of this Act, in 

22 accordance with the procedure set forth in section 

23 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 

24 note), as though the authority under that Act had 

25 not expired; and 


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1 (2) pursuant to the emergency authority pro2 vided under paragraph (1), make such conforming 

3 amendments to the Federal sentencing guidelines as 

4 the Commission determines necessary to achieve 

5 consistency with other guideline provisions and ap6 plicable law. 

7 SEC. 6. REPORT BY ATTORNEY GENERAL. 

8 Not later than 6 months after the date of enactment 

9 of this Act, the Attorney General shall submit to the Com10 mittees on the Judiciary of the House of Representatives 

11 and the Senate a report outlining how the reduced expend12 itures on Federal corrections and the cost savings result13 ing from this Act will be used to help reduce overcrowding 

14 in the Federal Bureau of Prisons, help increase proper in15 vestment in law enforcement and crime prevention, and 

16 help reduce criminal recidivism, thereby increasing the ef17 fectiveness of Federal criminal justice spending. 

18 SEC. 7. REPORT ON FEDERAL CRIMINAL OFFENSES. 

19 (a) DEFINITIONS.—In this section— 

20 (1) the term ‘‘criminal regulatory offense’’ 

21 means a Federal regulation that is enforceable by a 

22 criminal penalty; and 

23 (2) the term ‘‘criminal statutory offense’’ 

24 means a criminal offense under a Federal statute. 


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1 (b) REPORT ON CRIMINAL STATUTORY OFFENSES.— 

2 Not later than 1 year after the date of enactment of this 

3 Act, the Attorney General shall submit to the Committee 

4 on the Judiciary of the Senate and the Committee on the 

5 Judiciary of the House of Representatives a report, which 

6 shall include— 

7 (1) a list of all criminal statutory offenses, in8 cluding a list of the elements for each criminal stat9 utory offense; and 

10 (2) for each criminal statutory offense listed 

11 under paragraph (1)— 

12 (A) the potential criminal penalty for the 

13 criminal statutory offense; 

14 (B) the number of prosecutions for the 

15 criminal statutory offense brought by the De16 partment of Justice each year for the 15-year 

17 period preceding the date of enactment of this 

18 Act; and 

19 (C) the mens rea requirement for the 

20 criminal statutory offense. 

21 (c) REPORT ON CRIMINAL REGULATORY OF22 FENSES.— 

23 (1) REPORTS.—Not later than 1 year after the 

24 date of enactment of this Act, the head of each Fed25 eral agency described in paragraph (2) shall submit 


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1 to the Committee on the Judiciary of the Senate and 

2 the Committee on the Judiciary of the House of 

3 Representatives a report, which shall include— 

4 (A) a list of all criminal regulatory of5 fenses enforceable by the agency; and 

6 (B) for each criminal regulatory offense 

7 listed under subparagraph (A)— 

8 (i) the potential criminal penalty for a 

9 violation of the criminal regulatory offense; 

10 (ii) the number of violations of the 

11 criminal regulatory offense referred to the 

12 Department of Justice for prosecution in 

13 each of the years during the 15-year period 

14 preceding the date of enactment of this 

15 Act; and 

16 (iii) the mens rea requirement for the 

17 criminal regulatory offense. 

18 (2) AGENCIES DESCRIBED.—The Federal agen19 cies described in this paragraph are the Department 

20 of Agriculture, the Department of Commerce, the 

21 Department of Education, the Department of En22 ergy, the Department of Health and Human Serv23 ices, the Department of Homeland Security, the De24 partment of Housing and Urban Development, the 

25 Department of the Interior, the Department of 


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1 Labor, the Department of Transportation, the De2 partment of the Treasury, the Commodity Futures 

3 Trading Commission, the Consumer Product Safety 

4 Commission, the Equal Employment Opportunity 

5 Commission, the Export-Import Bank of the United 

6 States, the Farm Credit Administration, the Federal 

7 Communications Commission, the Federal Deposit 

8 Insurance Corporation, the Federal Election Com9 mission, the Federal Labor Relations Authority, the 

10 Federal Maritime Commission, the Federal Mine 

11 Safety and Health Review Commission, the Federal 

12 Trade Commission, the National Labor Relations 

13 Board, the National Transportation Safety Board, 

14 the Nuclear Regulatory Commission, the Occupa15 tional Safety and Health Review Commission, the 

16 Office of Compliance, the Postal Regulatory Com17 mission, the Securities and Exchange Commission, 

18 the Securities Investor Protection Corporation, the 

19 Environmental Protection Agency, the Small Busi20 ness Administration, the Federal Housing Finance 

21 Agency, and the Office of Government Ethics. 

22 (d) INDEX.—Not later than 2 years after the date 

23 of enactment of this Act— 

24 (1) the Attorney General shall establish a pub25 lically accessible index of each criminal statutory ofVerDate Sep 11 2014 04:03 Oct 11, 2017 Jkt 079200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1933.IS S1933

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1 fense listed in the report required under subsection 

2 (b) and make the index available and freely acces3 sible on the website of the Department of Justice; 

4 and 

5 (2) the head of each agency described in sub6 section (c)(2) shall establish a publically accessible 

7 index of each criminal regulatory offense listed in 

8 the report required under subsection (c)(1) and 

9 make the index available and freely accessible on the 

10 website of the agency. 

11 (e) RULE OF CONSTRUCTION.—Nothing in this sec12 tion shall be construed to require or authorize appropria13 tions. 

Æ 


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