How Low-Level Federal Drug Charges Can Lead to Massive Sentences
Federal Drug Attorney Explains How Low-Level Federal Drug Charges Lead to High Sentences
Why do you need to retain a federal criminal defense attorney if you are charged with a federal drug crime? The first and foremost reason is federal drug cases carry massive penalties and you can be punished for a far greater quantity of drugs than were found on you. This article explains how low-level drug charges can lead to massive sentence due to the reliance on the recommendations of the United States Sentencing Guidelines, as well as overly-broad punishment enhancements.
The United States Sentencing Guidelines are the most significant factor impacting the lives of individuals convicted of federal crimes. Many articles, training presentations, treatises, and bar room conversations have lamented the controversial results the guidelines have had for federal offenders. While esoteric philosophical debates may be fascinating to attorneys and law professors, justice is far more important than academic discourse. It is the moral backbone of society and a reflection of social values.
Put simply, justice is an expectation of citizens that offenders will be punished for their misdeeds while, simultaneously, an expectation that such punishments fit that offender and the severity of his or her crime.
Courts have two ways to achieve accuracy and proportionality in sentencing.
First, courts can simply take an unstructured “each crime is unique” approach just looking at the facts of a case and asking a judge to do his or her best to come up with a sentence. The second approach is to seek a highly structured, mathematical approach that seeks uniformity in sentencing. The United States Sentencing Guidelines are an attempt at this second approach.
Guideline Policy Statement
To achieve this end, Congress first sought honesty in sentencing. It sought to avoid the confusion and implicit deception that arose out of the pre-guidelines sentencing system which required the court to impose an indeterminate sentence of imprisonment and empowered the parole commission to determine how much of the sentence an offender actually would serve in prison. This practice usually resulted in a substantial reduction in the effective length of the sentence imposed, with defendants often serving only about one-third of the sentence imposed by the court.
Second, Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders. Third, Congress sought proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity.
Federal Sentencing in Drug Cases
Sentencing on federal drug cases is a serious and complex matter. A skilled federal defense attorney will examine the case to determine the amount of drugs to be considered for sentencing, look at any special characteristics of the offense that might warrant a downward departure, and look for ways to obtain sentencing below the mandatory guidelines, if at all possible. Defending federal drug crimes successfully requires an attorney who not only understands the nature of the charge, but also one that can know the ins-and-outs of federal sentencing guidelines.
Learn more about federal drug cases.
Federal sentences for drug cases can be massive. Take drug trafficking for instance:
Federal Trafficking Penalties for Schedules I, II, III, IV, and V (except Marijuana)
500-4999 grams mixture
|First Offense: Not less than 5 yrs. and not more than 40 yrs. If death or serious bodily injury, not less than 20 yrs. or more than life. Fine of not more than $5 million if an individual, $25 million if not an individual.Second Offense: Not less than 10 yrs. and not more than life. If death or serious bodily injury, life imprisonment. Fine of not more than $8 million if an individual, $50 million if not an individual.||Cocaine |
5 kilograms or more mixture
|First Offense: Not less than 10 yrs. and not more than life. If death or serious bodily injury, not less than 20 yrs. or more than life. Fine of not more than $10 million if an individual, $50 million if not an individual.Second Offense: Not less than 20 yrs, and not more than life. If death or serious bodily injury, life imprisonment. Fine of not more than $20 million if an individual, $75 million if not an individual.2 or More Prior Offenses: Life imprisonment. Fine of not more than $20 million if an individual, $75 million if not an individual.|
|Cocaine Base |
28-279 grams mixture
|Cocaine Base |
280 grams or more mixture
40-399 grams mixture
400 grams or more mixture
|Fentanyl Analogue |
10-99 grams mixture
|Fentanyl Analogue |
100 grams or more mixture
100-999 grams mixture
1 kilogram or more mixture
1-9 grams mixture
10 grams or more mixture
5-49 grams pure or
50-499 grams mixture
50 grams or more pure
or 500 grams or more mixture
10-99 grams pure or
100-999 grams mixture
100 grams or more pure
or 1 kilogram or more mixture
|Any Amount Of Other Schedule I & II Substances||First Offense: Not more than 20 yrs. If death or serious bodily injury, not less than 20 yrs. or more than Life. Fine $1 million if an individual, $5 million if not an individual.Second Offense: Not more than 30 yrs. If death or serious bodily injury, life imprisonment. Fine $2 million if an individual, $10 million if not an individual.|
|Any Drug Product Containing Gamma Hydroxybutyric Acid|
|Flunitrazepam (Schedule IV) |
|Any Amount Of Other Schedule III Drugs||First Offense: Not more than 10 yrs. If death or serious bodily injury, not more than 15 yrs. Fine not more than $500,000 if an individual, $2.5 million if not an individual.Second Offense: Not more than 20 yrs. If death or serious injury, not more than 30 yrs. Fine not more than $1 million if an individual, $5 million if not an individual.|
|Any Amount Of All Other Schedule IV Drugs (other than one gram or more of Flunitrazepam)||First Offense: Not more than 5 yrs. Fine not more than $250,000 if an individual, $1 million if not an individual.Second Offense: Not more than 10 yrs. Fine not more than $500,000 if an individual, $2 million if other than an individual.|
|Any Amount Of All Schedule V Drugs||First Offense: Not more than 1 yr. Fine not more than $100,000 if an individual, $250,000 if not an individual. Second Offense: Not more than 4 yrs. Fine not more than $200,000 if an individual, $500,000 if not an individual.|
What can a federal criminal defense attorney do?
If you or a loved one is facing a federal drug charge, contact an experienced federal criminal defense attorney immediately. Understand that federal cases are complex and very different than state charges. Find an attorney who is experienced handling similar cases. An experienced federal attorney can walk you through the underlying criminal case, any challenges or weaknesses the government may have, talk to you about the benefits and drawbacks of cooperation, assist you in minimizing your sentence and help find the best location for you to serve any sentence if a sentence cannot be avoided. Additionally, a criminal defense attorney will be able to identify key pretrial issues, file appropriate motions including motions for discovery, release, and a lighter sentence all of which can improve your situation or even get your case no-billed or dismissed.
Ghost Dope Drives Sentencing Guidelines
The Guidelines base sentences upon more than isolated, discrete, one-time events. Take the following example:
A mid-level distributor, let’s call him “Ernie,” makes two annual trips to Mexico to arrange for the transport and delivery of drugs into the United States, making hundreds of thousands of dollars a year. Each delivery is for 14 kilograms of meth.
Several links further down the chain, we have a low-level distributor, let’s call him “Burt,” has been selling five ounces of meth a week for two years. Ernie and Bert don’t know each other. Bert has no direct ties to Mexico, and has never been outside of the United States. On average, Bert made about $50,000 a year, and used a large portion of his proceeds to feed his own addiction.
Imagine one of the end-users (“Oscar”) who Bert had been selling to gets picked up on a traffic stop. When the feds threaten prosecution, Oscar starts talking about everything he knows or has heard to try to avoid prosecution. Oscar tells federal agents he knows that Ernie received one 14-kilogram delivery of methamphetamine. Oscar also tells federal agents that he’s never seen Bert with much methamphetamine and that he considers Bert a friend. Oscar admits that he know Bert has sold five ounces a week for the last two years, and that the drugs found on Oscar came directly from Bert.
Agents test the drugs found on Oscar and it comes back over 90% pure methamphetamine.
Imagine that both Ernie and Bert are arrested. Ernie will be held accountable for the 14 kilograms of methamphetamine that Oscar told the agents about. This gives rise to a base level offense of 34 under the United States Sentencing Guidelines.
Burt will be held responsible for 14 kilograms (5 ounces a week for 104 weeks) but because of the purity of drugs, Bert is responsible for “methamphetamine actual” instead of methamphetamine. Even though the weight is the same, Bert will have a higher base level offense, clocking in at a level 38.
Without any further enhancements, that results in a sentence that is 7-10 years higher for Bert than for Ernie, even though in any world, a higher-level distributor like Bert should be more culpable than a low-level distributor like Bert.
As an aside, both Ernie and Bert could face importation enhancements. Ernie could be enhanced if there was evidence that the drugs were imported from Mexico. Bert’s sentence could be enhanced simply by the purity of the drugs when agents testify, as they often do, that such high levels of purity in methamphetamine come from methods that are commonly used by manufacturers across the border.
Don’t miss: Ghost Dope in federal drug cases.
Enhancements Increase Federal Sentences
Imagine federal agents later execute a search warrant on Ernie’s house and Bert’s house. No drugs are found in either house. A gun is found inside Bert’s house, which he kept around for home protection. The feds go back to Oscar and ask him some follow-up questions. Oscar admits that he would buy the drugs from Bert by going to Bert’s house once a week. Oscar says he’s never seen Bert with a gun and didn’t even know he had one.
What does this information mean to the feds? Bert is likely to see two further enhancements. One for maintaining a premises to store or distribute drugs and a second for possession of a firearm. The case law on the firearm enhancement means that an objection that there is no evidence that the firearm was used in furtherance of the crime and was only present for home defense is unlikely to prevail.
Together, these two-level enhancements could result in an additional 8-10 years for which Bert will be sentenced.
Ultimately, one of the weaknesses of the United States Sentencing Guidelines is that low-level offenders can, and often are, punished harshly and sometimes minor players are treated like kingpins. The Guidelines do attempt to create adjustments for minor and players through “minimal roles” and “aggravating roles.” In practice, however, Bert is highly unlikely to benefit from this adjustment. Bert, who has little control over the source of supply, or purity of the drugs, will be hit for purity, importation, and because he’s dealing out of his house, maintaining a premises.
These Guideline considerations can be found in sections 2D1.1 (quantity, purity, importation, premises, and involvement of a weapon), 3B1.1 (aggravating role), 3B1.2 (mitigating role), and 5a (sentencing table).
What do we do?
First and foremost, we listen to understand. When a loved one gets arrested for a federal criminal offense, we understand their life is flashing before their eyes and they are wondering how they got where they are. Being there to talk to them and explain how the criminal process works is invaluable.
Second, we look at the government’s position. Are we working the case pre-indictment, and if so what can we do to influence what happens next. If the case has already been indicted, do we have all the evidence or is there evidence we need to gather. Are there witnesses we need to speak to?
We seek the best possible outcomes – within the system and without. That means if the prosecution can be avoided altogether, that is our first goal. If the prosecution cannot be avoided, we walk you through the possibilities – ranging from a trial to a plea.
Also published on Medium.