federal drug lawyer

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.

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.

[At this point, most discussions would veer into pointing out that since Booker the Guidelines are no longer mandatory and that the judiciary acknowledges that approach one (each crime is unique) needed more emphasis). However, the Guidelines are still to be considered and the great majority of sentences still fall within the Guidelines.]

While the Guidelines are not mandatory upon federal judges, they are still extremely important. In fact, more than 75% of federal drug sentences are either within the guidelines or beneath them at the Government’s request.

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.

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 prosecution can be avoided altogether, that is our first goal. If prosecution cannot be avoid, we walk you through the possibilities – ranging from a trial to a plea.

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Benson Varghese

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Benson Varghese is the Managing Partner of Varghese Summersett PLLC. He is a state and federal practitioner who has handled thousands criminal cases and taken over 100 cases to trial by jury. Benson is frequently called upon to handle cases that require a high degree of knowledge in technology, scientific evidence, forensic evidence, as well as serious intoxication cases. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.