How Federal Sentencing Works in Drug Cases
The Bureau of Prisons reports that, as of October 2018, more than 169,000 people were serving penitentiary time for federal offenses. Within that population, more than 46 percent of prisoners – about 78,000 -are incarcerated for drug-related sentences.
Methamphetamine and Cocaine in the Federal Criminal System
Within that subset, most inmates are serving sentences for methamphetamine or cocaine related offenses – which historically carry large sentences. Federal sentences often involve significant periods of time. In fact, more than 49 percent of federal sentences are 10 years or longer.
By comparison, in 2018 Texas has more than 30,000 persons serving time for state drug-related offenses. This is out of roughly 141,000 inmates.
Not only is the incarceration population a staggering number, the budgets necessary to pursue drug cases aren’t inconsequential. The budget for the Drug Enforcement Administration (DEA) and the Bureau of Prisons (BOP) budget are in the millions millions.
Methamphetamine: “A New Generation” Figuratively and Literally
In 2016, the Drug Enforcement Administration (DEA) seized approximately $1 million worth of methamphetamine in North Dallas. Agents arrested a Mexican National in rural Hunt County that they said was tied to the “New Generation” drug cartel. Because of the noxious fumes associated with making meth, officials said many cartel players now prefer to produce both methamphetamine and a more potent form referred to as ICE in rural areas.
This is an example of just one of multiple raids, arrests, and seizures that occur daily as part of the government’s effort to combat the drug. Regardless of one’s position regarding the sensibility or efficacy of these efforts, one thing is clear: The system that investigates and prosecutes meth-related crime is substantial.
The DEA and local law enforcement agencies, such as the Dallas Police Department or Tarrant County Sheriff’s Office, participate in this effort, in conjunction with multiple other federal agencies. For example, the Organized Crime and Drug Enforcement Task Force (OCDETF) program was established in 1982 to coordinate multiple agencies to “identify, disrupt, and dismantle the most serious drug trafficking and money laundering organizations and those primarily responsible for the nation’s drug supply.”
Over the last 25 years, cocaine accounted for the largest number of DEA domestic arrests. However, the disparity between cocaine arrests and methamphetamine arrests has shrunk considerably.
While the numbers are significant, it is hardly news that the U.S. Government, in addition to virtually every local law enforcement agency, is committed to a massive campaign to combat drugs. What is less well-known is just how the federal government approaches criminal cases pertaining to drug offenses.
For persons suspected, or arrested, for a federal methamphetamine charge, it is important to understand the most important difference between most state prosecutions and those within the federal court system.
The largest difference lies within the actual conduct prosecuted. Most state drug cases are brought by local law enforcement agencies, such as the Arlington Police Department, who make arrests of persons in actual present possession of narcotics. In a very real sense, the act of ‘possession’ is the object of prosecution. In contrast, most federal drug cases, including those for methamphetamine related activity, pursue persons who ‘conspire’ to distribute drugs. Thus, ‘conspiracy’ or reaching an agreement to buy and sell drugs is the object of conspiracy.
For example, 21 USC 841 proscribes the manufacture, possession, and delivery of methamphetamine, cocaine, LSD, heroin, marijuana, synthetic marijuana such as k2 and other analogs, and multiple other drugs. This is similar to most state statutes proscribing possession, delivery, and manufacturing.
However, most federal drug cases proceed under 21 USC 846 which proscribes the conspiracy to violate 21USC 841. This means that the Government can make its case even if no drugs are ever recovered by law enforcement.
It is important to acknowledge that most states have conspiracy statutes. It is also true that possession cases could theoretically be made without the actual recovery of drugs. However, these are merely academic statements. The truth is that, for the great majority of cases, state prosecutions only occur if law enforcement officials actually capture drugs.
Why does that matter? Simple, in both the state and federal systems punishments for drug offenses are driven by the quantity of drugs involved. Since state cases proceed on the basis of actual recovery, the amount captured largely dictates the punishment. However, if, as it is typically done in federal cases, conspiracy is the theory of prosecution, then federal courts include all drugs agreed by conspirators to be distributed. Under the United States Sentencing Guidelines all relevant conduct can be used in determining the scope of an offense under USSG § 1B1.3.
USSG, § 1B1.3, 18 U.S.C.A.
§ 1B1.3. Relevant Conduct (Factors that Determine the Guideline Range)
(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:
(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were–
(i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal activity;
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;
An Example of How Sentencing Works in a Federal Criminal Case
The following example illustrates the difference. Assume Aaron talks to Ben about delivering 1 pound of methamphetamine to Carla on New Year’s Day. Assume also that Aaron is the source of supply and Ben is the middle-man who found Carla as a buyer. Assume further that Aaron went ahead and gave 1 pound of meth to Ben who then delivers it to Carla. Imagine then that on the following day Carla gives 4 ounces (1/4 pound) to Edgar, Fran, and Gabriel. Then imagine Fran gets arrested and caught with her ¼ pound of meth. Imagine that Fran confesses to DEA agents that she got her ¼ pound from Carla. Finally, imagine that the same DEA agent gets a warrant for Carla’s home and executes it on January 3rd. During that search agents find another pound of meth Carla just got from Ben. Next, assume that Carla gets arrested and talks to the agent before she is appointed an attorney. During that conversation she explains that she bought the 2 pounds of meth described above (January 1st and 3rd) and explains that Ben is her source of supply and she knows that Aaron gave Ben the 2 pounds of methamphetamine.
Under typical state theories of prosecution, you would expect that Carla would be held responsible for the 1 and ¼ pounds she and Fran were caught with. Also, Fran would be responsible for her ¼ pound. Since neither Aaron, Ben, Edgar, nor Gabriel were caught with drugs, they wouldn’t be prosecuted. [They might be investigated and be under surveillance by agents or police officers, but they wouldn’t be prosecuted in a state court.] Applying the Texas Penal Code and Health and Safety Code both Carla and Fran are facing felony state charges.
In contrast, if the United States Attorney’s Office opens a case for prosecution for conspiracy to distribute drugs under 21 USC § 846, Aaron, Ben, Carla, Edgar, Fran, and Gabriel will all be on the hook for felony charges.
Also, the punishments they face are likely to vastly different under the State and Federal systems. In Texas, even though Carla and Fran (not any of the others) face first degree charges, if they do not have significant priors it is quite possible they could face probation or sentence of ten years or less in prison. Also, in Texas drug offenses are eligible for parole (meaning that a prisoner can request parole) after actual time served plus any good time credit equals 25% of the sentence. This means that even under a 10-year sentence, Carla and Fran can start petitioning for parole. While there’s no guarantee parole would be granted, many prisoners are paroled long before fully serving their sentence. In fact, in 2012 Texas drug offenders served, on average, 58% of their sentences.
Under the federal system, the six defendants are looking at sentences which are subject to many considerations depending on criminal history (just as is true in the State system), use of weapons, whether the drugs were imported, whether a residence was used to conduct drug transactions, and countless others.
[The following example are meant for illustration. The number of factors that can affect the guidelines are immense.]
Regarding Edgar, Fran, and Gabriel, (assuming that no co-conspirator hasn’t leveled statements attributing more drugs to them), they will at least be held accountable for 112 grams of methamphetamine. The applicable guideline is USSG § 2D1.1. By itself, that amount by itself begins at a base offense level calculation at 24 if the methamphetamine is not pure. If it were pure then it would be characterized as methamphetamine (actual) or (ice). 112 grams of ice begins at a base offense level 32.
To put this in perspective. A level 24 with no criminal history calls for 51 – 63 months imprisonment. If they timely plea guilty and get a downward adjustment for acceptance of responsibility, then they would be subject to level 19 which calls for 30-37 months imprisonment. If the drugs are pure or ice then start with a base offense level of 32 which calls for 121-151 months imprisonment. . If they timely plea guilty and get a downward adjustment for acceptance of responsibility, then they would be subject to level 27 which calls for 70-87 months imprisonment.
Carla is in a different situation. Assuming that no co-conspirator has leveled statements attributing more drugs to her, she will at least be held accountable for 896 grams of methamphetamine. The applicable guideline is USSG § 2D1.1. By itself, that amount by itself begins at a base offense level calculation at 30 if the methamphetamine is not pure. If it were pure then it would be characterized as methamphetamine (actual) or (ice). 896 grams of ice begins at a base offense level 34.
To put this in perspective. A level 30 with no criminal history calls for 97-121 months imprisonment. If she timely pleads guilty and gets a downward adjustment for acceptance of responsibility, then she would be subject to level 25 which calls for 57-71 months imprisonment. If the drugs are pure or ice then start with a base offense level of 34 which calls for 151-188 months imprisonment. If she timely pleads guilty and gets a downward adjustment for acceptance of responsibility, then she would be subject to level 29 which calls for 87-108 months imprisonment.
Depending upon whether Carla engages in a second interview known as a proffer, which amounts to a free talk with federal agents or local officers, Aaron and Ben may be in a deeper situation. If she doesn’t enter into a proffer agreement then Aaron and Ben will be in the same predicament as Carla.
Now, imagine Carla goes into such a proffer agreement and says, ‘you know what guys. I lied. I actually engaged in 12 transactions with Ben where Aaron supplied him 1 pound of meth each time. Now Carla is on the hook only for her 2 pounds but Aaron and Ben are on the hook for 12pounds each. They each would be responsible for more than 5 kilos. If it’s not pure then the base offense level would start at 34 which calls for 151-188 months imprisonment. If they timely plea guilty and get a downward adjustment for acceptance of responsibility, then they would be subject to level 29 which calls for 87-108 months imprisonment.
If it’s pure then the base offense level begins at 38 which calls for 235-293 months imprisonment. If she timely pleads guilty and gets a downward adjustment for acceptance of responsibility, then she would be subject to level 33 which calls for 135-168 months imprisonment.
****All of the above examples assume that no guns were involved and that none of the actors have any criminal history (criminal history category I [the first column below]) or other aggravating factors****
Below is the sentencing table provided under the guidelines.
Methamphetamine in Texas
Health & Safety Code § 481.112
§ 481.112. Offense: Manufacture or Delivery of Substance in Penalty Group 1
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1.Methamphetamine is classified as a substance prohibited under penalty group one. Health and Safety Code § 481.102.
Methamphetamine is classified as a substance prohibited under Penalty Group One. Health and Safety Code § 481.102.
Under Texas law, possession of between 4-200 grams of methamphetamine would be characterized as a first degree felony which could carry anywhere from a probated sentence [depending on the criminal history of the defendant] to life imprisonment. Texas Penal Code § 12.32.
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