Blog – Sentencing of Federal Drug Offenders:
By Laura Monagle.
The 21 United States Code (‘USC’) Controlled Substances Act is the piece of legislation that sets out the United States Federal drug offences. This is an incredibly lengthy and complex Act, which can result in very harsh penalties, set out separately in the United States Sentencing Commission (‘USSC’) Guidelines Manual. This post will discuss the way in which Federal drug offences are sentenced.
Federal sentencing is carried out entirely differently to the State system. While plea bargaining plays a huge role in both systems, unlike the State system, there is no obligation on a Federal court judge to accept a sentence previously agreed upon by a defendant and the Assistant United States Attorney (‘AUSA’). Sentencing is completely within the discretion of Federal Court judges, although this is subject to the sentencing guidelines (referenced above), and statutory sentencing minimums. The case of Gall v. United States 446 F.3d 884 (Supreme Court, 2007) set out the procedure for Federal sentencing, as follows – (1) determine the range as per the sentencing guidelines (referenced above) – (2) determine whether any departures (either upward or downward) can be applied to this range – (3) determine whether variance is warranted via any of the § 3553(a) factors.
The Guidelines Manual sets out the sentencing range for each of the enumerated offences. Through the use of offense ‘levels’, the guidelines provide a month range within which the court must impose a sentence, unless there are any applicable departures or variances (discussed below). The ranges include specific offence characteristics, which may either increase or decrease the base level of an offence. The ranges for drug offences are set out in Chapter 2 Part D, with reference to the sentencing table contained in Chapter 5 Part A. The process of determining the sentencing range can be incredibly complex because of the multitude of factors at play, and as such defendants charged with drug offences should retain an experienced attorney.
A departure (either an upward or downward) is a change made to the guideline sentencing range (or in some cases, the mandatory minimum sentence). It should be noted that these are considered rare, and should only be applied in cases that are not ‘run of the mill’. There are three avenues through which a departure can be applied for – (1) because of the criminal history of the defendant (that is, the history of a particular defendant either over or under represents the seriousness of that history, and the chance that the defendant will commit further crimes) – (2) the provision of substantial assistance (to be discussed below), and – (3) other grounds (relating to aggravating and/or mitigating factors). There are also a multitude of prohibited grounds of departure, which include but are not limited to race, gender, national origin, religion, socio-economic status, drug or alcohol abuse/dependence, gambling addiction, or coercion/duress. These factors cannot be taken into account during sentencing.
A variance is a further consideration, which should only be taken into account after a determination on departure has been made. The factors to be taken into account for the purpose of variance are enumerated in 18 USC § 3553(a), and include the defendant’s prior criminal history, any personal characteristics of the defendant, as well as health and family issues, and the nature of the offence in question. A variance allows for a defendant to be sentenced outside of the guideline range, but does not allow for sentencing below a mandatory minimum sentence.
Mandatory Minimum Sentences:
21 USC § 841 enumerates the weight amounts required of each of the enumerated drugs (LSD, marijuana, crack cocaine, powder cocaine, heroin, methamphetamine or PCP) in order to trigger either the statutory minimum of five years, or ten years without parole. There is no judicial discretion in the Federal system to sentence below these statutory mandatory minimums if a particular fact scenario (that is, the requisite amount of one of the enumerated drugs) is present. These minimums apply to any of the unlawful acts set out in sub-section (a): it shall be unlawful for any person knowingly or intentionally – (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance, or – (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance. For example, any of the aforementioned acts that involve 28 grams of crack cocaine, or 100 grams of heroin, will attract a five-year mandatory minimum. In the same vein, any of the aforementioned acts that involve 1000 kilos of marijuana, or 50 grams of pure methamphetamine will attract a ten-year mandatory minimum.
Avoid Mandatory Minimum Sentences:
There are three ways in which an individual charged with an offense containing a statutory mandatory minimum can avoid that sentence.
Firstly, the defendant can proceed to trial and be acquitted, though there are myriad risks involved in proceeding to trial.
Secondly, in some circumstances certain defendants will be able to qualify for the statutory safety valve. The defendant would only be capable of qualifying for this safety valve if all of the following are made out: the defendant has minimal or no criminal history; the offence committed did not involve violence or the use of a firearm; the commission of the offence did not result in death or serious injury to another person; the defendant was a low-level offender (for example, a ‘mule’, not a ‘kingpin’); and the defendant has been truthful in providing information to the prosecution. Ultimately, the decision of whether to sentence below the mandatory minimum even if all of the above are made out rests with the judge; however, the prosecution can play a significant role in aiding the court to their decision. It should also be noted that while this safety valve may allow the judge to sentence below the minimum, the eventual sentence is still subject to the sentencing guidelines (referenced above).
Thirdly, if the prosecution deems that the defendant has been of ‘substantial assistance’ to them, they can file a motion (known as a ‘§ 5K motion’) with the court stating that the defendant should be sentenced below the mandatory minimum. This constitutes a departure (as discussed above). In almost all such cases, the prosecution will require that the defendant to plead guilty before they agree to file a § 5K motion with the court, regardless of the assistance that the defendant has provided. Generally speaking, the prosecution will only be willing to accept information regarding an individual of equal or higher status than the defendant. The court cannot sentence the defendant below the mandatory minimum, despite any assistance provided by the defendant, if the prosecution does not file a § 5K motion. It is entirely within the prosecutor’s discretion as to whether to offer the defendant the chance to cooperate, and following this cooperation, whether to file a § 5K motion. Following such a filing, the judge is under no obligation to follow the recommendation of the prosecutor. In determining whether to grant a departure from the mandatory minimum, and the nature of that departure, the court must consider the significance of the information provided, as well as its reliability, the risk of injury to the defendant or their family stemming from this assistance, and whether the assistance was provided in a timely manner. It should be noted that the court is required to provide reasons for its decision, should it decide in favour of departure. It should also be mentioned that ‘substantial assistance’ is not defined within the statute, and has accordingly been applied differently between the Federal districts. There are some clear risks associated with this course of action, given that 6 out of 10 defendant who do provide some assistance to the prosecution do not have a § 5K motion filed to the court on their behalf. For this reason, any defendant who is considering providing assistance on the promise of a § 5K motion should consult an experienced attorney before doing so.
Prosecution Bargaining Tool:
Federal drug offences have the potential to attract huge terms of imprisonment, a fact which Federal prosecutors are known to use to their advantage. Only 3% of Federal drug defendants will ever go to trial, and it is often suggested that this is the result of prosecution bargaining to force a plea of guilty. The average sentence following conviction at trial for a Federal drug offence is three times longer than sentence resulting from a plea. The Federal system, it is often suggested, punishes defendants for going to trial, and is able to do so because of the unique tools which prosecutor’s possess to ‘force’ a defendant to plead guilty.
Prosecutors have two tools within their discretion to put before the court which can dramatically increase the sentence which a defendant is faced with, often to such an extent that it forces a plea of guilty:
- Introduction of prior felony convictions: under 21 USC § 851 (a)(1), if the prosecutor chooses to file the prior felony information of a defendant with the court, this will automatically increase the sentence faced. If a defendant has one prior felony conviction, this will result in a doubling of the defendant’s sentence. If a defendant has two prior felony convictions, and they are facing a ten year mandatory sentence, this will result in the sentence being commuted to life (with no parole). Any prior conviction for which more than one year of imprisonment could (not necessarily was, but could have been) have been imposed will constitute a relevant felony conviction, even if the underlying State offence would not constitute a Federal offence. There is no statute of limitations on the prior convictions which can be submitted as part of prior felony information. Once this information is submitted to the court, the judge has no discretion, and must impose the sentencing enhancement. It has been suggested that this is a tool frequently used by prosecutors to force defendants to enter a plea of guilty. Federal Judge John Gleeson, of the Eastern District of New York, stated in a recent case that, “to coerce guilty pleas, and sometimes to coerce cooperation as well, prosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one – not even prosecutors themselves – thinks are appropriate”. The huge impact which a prior felony information filing can have on the possible sentence faced by the defendant means that an experienced defence attorney is necessary when navigating this process.
- Involvement of a firearm: under 18 USC § 924 (c)(1), the prosecutor can also seek an additional mandatory sentence if a firearm was used in relation with a drug trafficking crime, which must be served consecutively to the underlying sentence for the drug offence. While there are separate sub-sections relating to the brandishing or discharging of a firearm, it is sufficient if the firearm was merely possessed. There is also case law to suggest that constructive possession (that is, the defendant themselves need not have possessed the gun; it will be sufficient for a co-defendant in a drug conspiracy to have possessed the firearm) will suffice to trigger these provisions. In the case of firearm possession or presence in the vicinity, one conviction will result in a further five year mandatory sentence. Each subsequent conviction carries a twenty five year mandatory sentence. Each subsequent conviction must be consecutively served. This can result in a scenario where a defendant ends up serving more time on mandatory firearm enhancements than on their underlying drug conviction. For example, in the case of United States v. Washington 301 F.Supp.2d 1306 (M.D. Ala, 2004), a twenty two year old was sentenced to a total term of imprisonment of forty years, thirty years of which were § 924 enhancements. The court found that this sentence was “irrational” and “unjustifiable”, but also that they had “no choice”. It has once again been suggested that prosecutors will use the threat of such an outcome to try to force defendants to enter a plea of guilty instead of going to trial. For this reason, it is essential that defendants facing such mandatory enhancements have an experienced attorney, to aid negotiations with the prosecution, and attempt to keep such enhancements from going before the court.
A further tool which prosecutors can use to ‘force’ a plea of guilty stems from the charges that they choose to file against a defendant. For example, a prosecutor can threaten to file a charge that carries with it a mandatory minimum sentence, and agree to amend the charges to charges that do not if the defendant enters a plea of guilty. An experienced defence attorney is essential in navigating this process, as the charges that are filed against a defendant can clearly have a significant impact on the potential sentence facing a defendant.
There is limited scope for an appeal against a sentence imposed by a Federal district court to an appellate court. As set out by Gall v. United States (reference above), the only considerations which an appellate court can make are – (1) considering whether the district court correctly calculated the guideline range of any given offence, and – (2) determining whether the ultimate sentence was reasonable, in light of all of the circumstances including relevant departures and variances. Given the statutory nature of sentences for drug offences, there is very little wiggle room in determining a sentence to be imposed in the first place, and therefore an appeal has a limited capacity for success. For this reason, it is essential that any defendant facing drug charges retain an experienced attorney to take their case before a sentence is imposed.
 United States v. Kupa WL 5550419 (EDNY, 2013).
 United States v. Washington 301 F.Supp.2d 1306 (M.D. Ala, 2004),