MOTIONS & REMEDIES — RETROACTIVITY

First Step Act Retroactivity (§404)

One of the First Step Act's most powerful provisions reached backward in time: Section 404 let people sentenced under the old crack-cocaine rules ask a court to resentence them under the fairer 2010 law. It is a real, still-active route to a reduced sentence for a specific group — and it is often misunderstood.

LAST REVIEWED: July 5, 2026 · FEDERAL SYSTEM ONLY · EDUCATIONAL — NOT LEGAL ADVICE

TIME LEDGER — CASE FILE SUMMARY §404 — RETROACTIVE RELIEF

What §404 does	Makes the Fair Sentencing Act of 2010 retroactive for crack-cocaine offenses
Who qualifies	People sentenced for a covered crack offense before August 3, 2010
Who decides	The sentencing court, on the person's motion — with discretion
Not retroactive	The Act's mandatory-minimum changes (§401, §402) apply going forward only
How to raise it	A motion for a reduced sentence in the sentencing court
Related	Sentence-reduction motions

The problem §404 was written to fix

For decades, federal law punished crack cocaine far more harshly than powder cocaine — at one point a 100-to-1 disparity, so that a small amount of crack triggered the same sentence as a hundred times as much powder. The disparity fell hardest on specific communities and was widely criticized as unjust. The Fair Sentencing Act of 2010 reduced the disparity to 18-to-1, but it applied only going forward, leaving people sentenced before 2010 stuck under the old rules.

Section 404 of the First Step Act closed that gap. It made the Fair Sentencing Act's changes retroactive, allowing people sentenced for covered crack offenses before August 3, 2010 to ask a court to impose a reduced sentence as if the fairer law had applied all along.

Who qualifies for §404 relief

Section 404 applies to a "covered offense" — a federal crack-cocaine offense whose penalties were modified by the Fair Sentencing Act — committed before August 3, 2010. A person serving a sentence for such an offense may move the court for a reduced sentence. Eligibility turns on the statute of conviction and the date, not on the specific conduct or the amount a person believes was involved.

Importantly, eligibility to seek relief is not the same as a guaranteed reduction. Section 404 opens the courthouse door; it does not dictate the outcome. The court determines whether, and by how much, to reduce, which is where the discretion lives.

How courts decide

Once a person is eligible, the court has discretion whether to reduce the sentence and to what extent. Courts generally consider the sentencing factors in 18 U.S.C. §3553(a) — the nature of the offense, the person's history and characteristics, and the need for the sentence — often including post-sentencing conduct like programming and rehabilitation. A strong record of growth while incarcerated can meaningfully affect the outcome.

This discretionary structure means two people with similar offenses can receive different §404 outcomes based on their records and the court's assessment. It also means the motion is worth preparing carefully, with attention to rehabilitation evidence, rather than treating eligibility as the finish line.

What a §404 resentencing actually involves

When a court grants §404 relief, it imposes a reduced sentence as if the Fair Sentencing Act's lower penalties had been in effect at the original sentencing. In practice this usually means recalculating the statutory penalty range for the covered offense under the current thresholds and then arriving at a new sentence within the court's discretion. Courts have generally treated this as a focused resentencing rather than a full plenary do-over of every issue in the case, though the exact scope has been the subject of appellate litigation.

The Supreme Court has clarified aspects of how §404 operates, including confirming that eligibility turns on the statute of conviction rather than the defendant's actual conduct, and addressing how courts should approach the discretionary decision. For a person considering a motion, the practical implication is that the covered-offense analysis is the gateway, and the strength of the discretionary case — rehabilitation, conduct in custody, and the §3553(a) factors — often decides how much reduction follows. Our sources page links the primary materials for those who want to read the governing decisions directly.

What §404 does NOT do

A crucial clarification: the First Step Act's retroactivity is specific to Section 404's crack-cocaine provision. The Act's other major sentencing changes — the mandatory-minimum reforms in Sections 401 and 402, which narrowed certain enhancements and adjusted some triggers — apply only to offenses committed on or after the Act's enactment. They are not retroactive.

This distinction disappoints many people who hear "First Step Act" and assume all its sentencing benefits reach backward. They do not. Only the crack-cocaine provision in §404 is retroactive. Confusing §404 with §401/§402 leads to motions that cannot succeed, so it is worth being precise about which provision applies.

How to raise a §404 motion

A §404 request is made by motion in the sentencing court — the court that imposed the original sentence. A person can file pro se, though the discretionary, record-intensive nature of the analysis means counsel can add real value, particularly in marshaling rehabilitation evidence and framing the §3553(a) argument. Our guide on when you need a lawyer and on finding post-conviction counsel can help assess that.

Because §404 has been active for years, much of the initial wave of motions has been resolved, but the provision remains available to eligible people who have not yet sought relief. Anyone who was sentenced for a pre-2010 crack offense and never pursued §404 should evaluate whether it fits.

Where §404 sits among the tools

Section 404 is one of several post-conviction sentence-reduction routes, each fitting different circumstances. For extraordinary and compelling circumstances, there is compassionate release. For legal or constitutional error, a §2255 motion. For post-sentencing cooperation, Rule 35(b). And separately from any court motion, there are the BOP-administered time reductions like First Step Act credits.

The key is matching the tool to the situation. Section 404 fits a specific group — pre-2010 crack offenses — very well and no one else. Our overview of sentence-reduction motions maps how these routes relate so families can identify which one, if any, applies to their case.

Frequently asked questions

Is the First Step Act retroactive?

Partly. Section 404 made the Fair Sentencing Act of 2010's crack-cocaine reductions retroactive, letting people sentenced for covered crack offenses before August 3, 2010 seek a reduced sentence. But the Act's mandatory-minimum changes (Sections 401 and 402) are not retroactive — they apply only to offenses committed on or after enactment.

Who qualifies for a §404 sentence reduction?

A person serving a sentence for a 'covered offense' — a federal crack-cocaine offense modified by the Fair Sentencing Act — committed before August 3, 2010. Eligibility turns on the statute of conviction and the date. Eligibility opens the door, but the court has discretion over whether and how much to reduce.

How do courts decide §404 motions?

Eligible people can move the sentencing court, which then has discretion whether to reduce and by how much. Courts generally weigh the 18 U.S.C. §3553(a) factors and often consider post-sentencing conduct like programming and rehabilitation, so a strong record while incarcerated can meaningfully affect the outcome.

Does the First Step Act reduce all drug sentences retroactively?

No. Only the §404 crack-cocaine provision is retroactive. The broader mandatory-minimum reforms in §401 and §402 apply going forward only. Assuming all First Step Act sentencing benefits reach backward is a common and costly misunderstanding.

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