First Step Act Ineligible Offenses: Categories and Sentence Impact

Federal inmates convicted of certain offenses cannot earn First Step Act time credits at all, no matter how much programming they complete or how well they behave. The list of First Step Act ineligible offenses lives in 18 U.S.C. § 3632(d)(4)(D) and names roughly 80 specific statutes covering homicide, sex offenses, terrorism, certain firearms counts, high-level drug trafficking, and several other categories.¹ A single ineligible count in a multi-count sentence disqualifies the entire term.

How the Exclusion Works

The Bureau of Prisons checks each inmate’s judgment and commitment order against the statutes listed in § 3632(d)(4)(D). If any count of conviction matches, the inmate is barred from earning FSA credits.² The determination is automatic. There is no appeal process, no waiver, and no exception for good behavior or program completion.

Two features of the list catch people off guard. First, it enumerates specific statutes, not broad categories, so the exact statute and subsection on the judgment controls the outcome. Second, many listed offenses trigger exclusion only when specific aggravating circumstances are present. The U.S. Sentencing Commission’s exclusion table flags these conditional requirements in bold.³ Two inmates convicted of what sounds like the same crime can have different eligibility outcomes depending on which subsection the prosecutor charged.

Homicide, Kidnapping, and Violent Assault

Every section of Chapter 51 of Title 18 disqualifies, meaning first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter, with only a narrow exception for certain less serious involuntary manslaughter convictions.² Kidnapping under 18 U.S.C. § 1201 is on the list, as are assassination or assault offenses targeting members of Congress, Cabinet officials, Supreme Court justices, and the President or presidential staff.⁴

The assault exclusions are narrower than most people expect. Not all federal assault convictions disqualify. The statutes that bar credits are:

18 U.S.C. § 111(b), assaulting a federal officer with a deadly weapon or causing bodily injury.
18 U.S.C. § 113(a)(1), (7), and (8), which cover assault with intent to murder, assault causing substantial bodily injury to a spouse or intimate partner, and assault by strangulation of a partner.
18 U.S.C. § 115, retaliating against a federal official by injuring a family member, though a conviction solely for a threat does not disqualify.
18 U.S.C. § 116, female genital mutilation.
18 U.S.C. § 117, domestic assault by a habitual offender.

A federal assault conviction under § 113(a)(3) for assault with a dangerous weapon is not on this list. The statute is specific about which paragraphs count.

Sexual Exploitation and Abuse

Convictions under 18 U.S.C. §§ 2241 through 2245 are all disqualifying, covering federal sexual abuse from aggravated sexual abuse to abusive sexual contact.⁴ Child exploitation offenses under 18 U.S.C. §§ 2251 and 2251A, which address producing or trafficking child sexual abuse material, also disqualify. Convictions for transporting individuals for illegal sexual activity, sex trafficking, and sexual exploitation of children appear on the list as well. The BOP describes the category as covering “sex and sexual exploitation” broadly.⁵

Terrorism, Espionage, and National Security

Treason under 18 U.S.C. § 2381 and every section of Chapter 113B disqualify.⁴ The Chapter 113B exclusion is broad: it covers providing material support to terrorist organizations, using weapons of mass destruction, bombing government property, acts of nuclear terrorism, and every other offense defined within that chapter.

Espionage convictions under 18 U.S.C. §§ 793 and 794 also disqualify. These statutes address gathering or delivering defense information, whether to aid a foreign government or through unauthorized retention or disclosure.² Threats against the President, successors to the presidency, and former presidents under 18 U.S.C. §§ 871 and 879 round out the national security category. Genocide convictions under 18 U.S.C. § 1091 are listed as well.

Firearms, Explosives, and Weapons of Mass Destruction

The single most common disqualifying offense in the federal system is 18 U.S.C. § 924(c), which penalizes possessing, using, or carrying a firearm during a violent crime or drug trafficking offense. The statute carries mandatory consecutive sentences, and any § 924(c) conviction blocks FSA credits.²

The explosives exclusion covers all of Chapter 39 of Title 18, addressing dangerous articles and explosives. There is one narrow exception: transporting fireworks into a state that prohibits their sale is not disqualifying. Convictions involving the use of fire or explosives under 18 U.S.C. § 844(f)(3), (h), or (i) are separately listed.⁴ Biological weapons (all of Chapter 10) and chemical weapons (all of Chapter 11B) are categorically excluded. Drive-by shootings under 18 U.S.C. § 36 and criminal street gang convictions under 18 U.S.C. § 521 also appear on the list. Distribution of weapons of mass destruction information under § 842(p) is included, but only when the conviction actually involved a weapon of mass destruction rather than conventional explosives.

High-Level Drug Trafficking

Most federal drug offenders remain eligible for FSA credits. The exclusions target the top of the distribution chain. The primary disqualifying drug statute is 21 U.S.C. § 848, the Continuing Criminal Enterprise or “Kingpin” statute, which requires proof that the defendant organized or managed at least five other people in a series of drug felonies generating substantial income.⁶ Certain trafficking convictions under 21 U.S.C. § 841 also appear on the list, with eligibility turning on the specific subsection charged, the quantity proven, and whether the defendant held a leadership role. A low-level courier and a convicted kingpin in the same organization can have entirely different eligibility outcomes.

Robbery, Arson, and Property Destruction

Bank robbery is not categorically excluded, but bank robbery resulting in death under 18 U.S.C. § 2113(e) is disqualifying. Robberies and burglaries involving controlled substances under 18 U.S.C. § 2118(c) are only excluded when they result in assault with a dangerous weapon or death.⁴ The base offense alone may not disqualify, but the aggravated version does.

Arson within special maritime and territorial jurisdiction under 18 U.S.C. § 81 is a standalone exclusion. Destruction of aircraft or aircraft facilities under § 32 and destruction of motor vehicles or motor vehicle facilities under § 33 are both listed.²

Corruption, Immigration, and Human Trafficking

Bribery of public officials under 18 U.S.C. § 201 is disqualifying, whether the defendant was the official taking the bribe or the person offering it.⁴

Immigration offenses appear with conditions. Illegal reentry under 8 U.S.C. § 1326 disqualifies only if the removed alien falls into the categories described in subsection (b)(1) or (b)(2), which generally involve prior felony or aggravated felony convictions. Aiding certain aliens to enter the U.S. under § 1327 and importing a person for an immoral purpose under § 1328 are also on the list.²

Human trafficking is a separate category from immigration offenses. The BOP identifies human trafficking as one of the broad categories that triggers ineligibility, alongside violence, terrorism, and sexual exploitation.⁵ Federal trafficking statutes covering forced labor and sex trafficking carry their own exclusions distinct from the immigration smuggling provisions.

Other Excluded Offenses

Several disqualifying offenses do not fit neatly into the major categories:

Escape from custody under 18 U.S.C. § 751 bars credits.
Computer fraud under 18 U.S.C. § 1030(a)(1) disqualifies, but only the most serious variety, involving national defense or foreign relations information. Ordinary hacking convictions under other subsections of § 1030 are not listed.
Certain offenses trigger exclusion under 18 U.S.C. § 3559(c) only when the defendant has prior serious violent felony convictions, creating a “three strikes” layer on top of the base offense.

One Ineligible Count Taints the Whole Sentence

This is where the rule hits hardest, and where families most often misunderstand the situation. If an inmate is serving time on multiple counts and even one count involves a disqualifying offense, the inmate cannot earn FSA time credits on any of the counts. The regulation states plainly that if an inmate “is serving a term of imprisonment for an offense specified in 18 U.S.C. 3632(d)(4)(D), the inmate is not eligible to earn FSA Time Credits.”⁷ There is no provision to split the sentence and earn credits on the eligible counts while serving out the ineligible one.

Someone convicted of a drug trafficking count that would normally be eligible plus a § 924(c) firearms count earns zero FSA credits for the entire term. A charging or plea decision that includes even one listed statute shuts the door.

What Ineligible Inmates Can Still Receive

Exclusion from FSA credits does not strip an inmate of everything programming can offer. The BOP has confirmed that inmates with disqualifying offenses “can still earn other benefits, as prescribed by BOP, for successfully completing recidivism reduction programming.”⁵ Those benefits can include improved housing assignments, increased commissary spending, and additional phone or visitation privileges.

Good conduct time credit also remains available to nearly all federal inmates, including those ineligible for FSA credits. Under the First Step Act’s revised calculation, inmates can receive up to 54 days of credit for each year of the sentence imposed, reduced to 42 days per year for inmates who fail to meet literacy program requirements.⁸ Good conduct time is separate from FSA earned time credits and has no offense-based exclusion list. For inmates convicted of a disqualifying offense, it is the only mechanism that shortens time served.

1
Federal Bureau of Prisons. FSA Time Credits Final Rule
2
Office of the Law Revision Counsel. 18 USC 3632 – Development of Risk and Needs Assessment System
3
U.S. Sentencing Commission. First Step Act Earned Time Credits
4
Federal Bureau of Prisons. Good Time Disqualifying Offenses
5
Federal Bureau of Prisons. First Step Act Overview
6
Office of the Law Revision Counsel. 21 USC 848 – Continuing Criminal Enterprise
7
eCFR. 28 CFR Part 523 Subpart E – First Step Act Time Credits
8
Federal Register. Good Conduct Time Credit Under the First Step Act