Federal Drug Crime Mandatory Minimum Sentences

When it comes to drug offenses, federal mandatory minimum prison sentences can be hammers.  Many drug distribution offenses under federal law have a 10 year mandatory minimum – even for a single transaction! The most important two factors when it comes to federal sentencing for drug offenses are type and quantity.  Type is important because federal law treats different drugs, and whether the drug is pure or a mixture, differently.  Quantity is important because federal sentences become more severe as quantity increases.  Also, it is important to note that in most cases quantity is aggregated for purposes of the sentencing guidelines – including uncharged amounts through a concept known as “relevant conduct.”

If the offense for which the defendant is convicted has a mandatory minimum prison sentence, there are two ways to get a sentence below the mandatory minimum.  Keep in mind that these mechanisms really only come into play where the sentencing guidelines also dictate a prison sentence below the mandatory minimum sentence.  For example, if the offense carries a 10 year mandatory minimum and the guidelines are Zone D, level 33, Criminal History Category III (168-210 months), getting less than the mandatory minimum of 120 months (10 years) is extremely unlikely.

Safety Valve – For “Small Players” Without a Criminal History

 If the defendant qualifies for the “safety valve,” the defendant can be sentenced below the mandatory minimum and according to the guidelines. The safety valve is a 5-part test found in § 5C1.2 of the guidelines manual. To qualify for the safety valve, the defendant must meet all of the following:

 

  1. He has no more than 1 criminal history point under the guidelines;
  2. He did not use violence, threats of violence, or possess a gun or other dangerous weapon;
  3. The offense did not result in death or serious bodily injury to any person;
  4. He was not a leader, organizer, manager, or supervisor of others in the offense; and
  5. He has truthfully provided the government with all the information he has concerning the offense.

If a defendant qualifies for the “safety valve” they can be sentenced below the mandatory minimum.  The “safety valve” rule is codified under 18 U.S. Code § 3553 (f).  The “safety valve” does not require the prosecutor to make a motion; rather it simply requires a finding by the judge that the defendant meets the requirements.

 

Substantial Assistance – It’s Always a Good Idea to Help the Feds

 Most federal prosecutors pursue drug cases with an eye towards obtaining information leading to additional prosecutions.  The primary mechanism is by obtaining “proffers” from defendants – a “proffer” is a fancy word for sitting down with the prosecutor and investigators and letting them ask questions about your involvement and the involvement of others in drug crimes.  “Proffers” are extremely important because they are the foundation to providing “substantial assistance.”  “Substantial assistance” may just be a proffer, it may be testifying at the grand jury, or it may be testifying at trial.  It could even be conducting “buys” or “sales” for law enforcement.  “Substantial assistance” is key because it leads to reduction in the guideline points and it offers an opportunity to be sentenced below the mandatory minimum.

Under U.S.S.G. § 5K1.1, the judge can sentence a defendant below the mandatory minimum if the defendant gave the prosecution substantial assistance in investigating or prosecuting others who committed crimes.  18 U.S. Code § 3553(e) provides the authority that the judge can go below the mandatory minimum based on substantial assistance.  Importantly, the prosecutor must file a motion (normally called a “5K” motion) for the judge to have the authority to go below the mandatory minimum.

 

Here is an example:

The defendant pleads guilty under 21 U.S.C. § 841(b)(1)(B), conspiracy to possess with intent to distribute at least 500 grams of cocaine.  Because of relevant conduct rules, he is also held accountable for 50 extra grams of cocaine, bringing the total to 550 grams. Under U.S.S.G. § 2D1.1, this drug amount makes the base offense level 26.

The defendant played a minor role in this offense. Under U.S.S.G. § 3B1.2(b), subtract 2 offense levels from the offense level of 26. This provides a new offense level of 24.  The defendant also accepted responsibility and agreed to plead guilty to the offense. Under U.S.S.G. § 3E1.1(b), subtract 3 levels from the offense level of 24. This provides a total offense level of 21.

The defendant has 1 prior felony drug conviction from five years ago. He served 14 months in prison for this offense. Under U.S.S.G. § 4A1.1(a), the defendant gets 3 points for his prior offense. He has no other criminal history, and he was not on parole or probation at the time he committed his current crime. Thus, his criminal history category is II (because he has 3 criminal history points).

According to the sentencing table, his guidelines are 41-51 months in prison.

The defendant was convicted under 21 U.S.C. § 841(b)(1)(B), which requires a mandatory minimum of 5 years (or 60 months). This number falls above the guideline range of 41-51 months.  Unless an exception applies, the defendant is looking at a sentence of at least 60 months, because of the mandatory minimum.

The defendant does not qualify for the safety valve– he has more than 1 criminal history point. Thus, he cannot receive the benefit of the safety valve or be sentenced below the mandatory minimum.

If the defendant pleads guilty and gives the prosecutor names and other information that helps with investigating or charging others, he may receive a sentence below the mandatory minimum of 60 months. First, the prosecutor must decide that the defendant’s help was indeed “substantial.” Then, the prosecutor must ask the judge to sentence the defendant below the mandatory minimum, using U.S.S.G. § 5K1.1 and 18 U.S. Code § 3553 (e).  Let’s assume the prosecutor files the 5K motion and also asks the judge to give the defendant another 2 level reduction for the assistance provided.  The total offense level is now 19 and the judge can go below the mandatory minimum.  The guidelines are now 33-41 months.

 

Rules to Remember About Federal Drug Crime Mandatory Minimum Sentences

 

  • There are only 2 exceptions: safety valve and substantial assistance.
  • The mandatory minimum trumps any shorter guideline sentence, unless the safety valve or substantial assistance applies.
  • Unless the safety valve or substantial assistance applies, the mandatory minimum is the bottom, not the top, which the judge must consider.

 Patrick Korody is a former Navy JAG who practices federal, military, and state criminal defense in and around Jacksonville, Florida.  He can be reached at 904.383.7261.  He offers a free initial case evaluation.

 

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