The judge may increase the sentence if there are certain aggravating factors, such as the presence of a weapon, whether the offense involved violence, or whether the offense involved the distribution of drugs to a minor.
See, e.g.: https://bjs.ojp.gov/content/pub/pdf/dofp12.pdf (U.S. Department of Justice: “Drug Offenders in Federal Prison”)
The judge may decrease the sentence if there are certain mitigating factors, such as the offender’s lack of criminal history, the offender’s cooperation with authorities, or the offender’s mental illness.
See, e.g.: https://www.justia.com/criminal/aggravating-mitigating-factors/ (“Aggravating and Mitigating Factors in Criminal Sentencing”).
Federal Mandatory Minimum Sentencing for Drug Offenses
The United States has a system of mandatory minimum sentencing laws for certain drug offenses. These laws require a minimum prison sentence for these particular crimes, regardless of the circumstances of the offense or the offender’s criminal history. The federal mandatory minimum sentencing laws for drug offenses are outlined in the Controlled Substances Act (CSA) (21 U.S.C. § 801, et. seq.).
The CSA classifies drugs into five “schedules,” based on the drug’s potential for abuse and medical usefulness.
See: federal drug schedules: https://www.dea.gov/drug-information/drug-scheduling
Schedule I drugs, such as heroin, are considered to have a high potential for abuse and no accepted medical use.
Schedule II drugs, such as cocaine, have a high potential for abuse but also have some accepted medical uses; and so on.
The CSA sets different mandatory minimum sentences for different schedules of drugs. For example, the mandatory minimum sentence for possession of Schedule I or II drugs is five years, while the mandatory minimum sentence for possession of Schedule III drugs is three years.
The CSA also sets different mandatory minimum sentences for different drug offenses. The mandatory minimum sentence for Simple Possession (21 U.S.C. § 844: https://www.law.cornell.edu/uscode/text/21/844) of a controlled substance is one year.
The mandatory minimum sentence for manufacturing or distributing a controlled substance is five years.
The mandatory minimum sentence for manufacturing or distributing a controlled substance near a school is ten years. 21 U.S. Code § 860: https://www.law.cornell.edu/uscode/text/21/860
The mandatory minimum sentence for manufacturing or distributing a controlled substance near a playground is twenty years. (Same.)
The CSA outlines different mandatory minimum sentences for different quantities of drugs. For example, the mandatory minimum sentence for manufacturing or distributing 100 grams or more of heroin is ten years. The mandatory minimum sentence for manufacturing or distributing 5 kilograms or more of cocaine is ten years.
See: https://www.justice.gov/usao-nh/frequently-used-federal-drug-statutes (“Frequently Used Federal Drug Statutes”).
The CSA also sets different mandatory minimum sentences for drug offenses committed by people with prior drug convictions. For example, the mandatory minimum sentence for manufacturing or distributing a controlled substance is ten years if the offender has one prior drug conviction, and twenty years if the offender has two or more prior drug convictions.
See: https://crsreports.congress.gov/product/pdf/R/R45074 (Congressional Research Service: “Mandatory Minimum Sentencing of Federal Drug Offenses”).
The recommended sentence is often less than the mandatory minimum sentence, but the judge has the discretion to sentence the offender to the mandatory minimum term.
Not surprisingly, the federal mandatory minimum sentencing laws for drug offenses are far too harsh and inflexible.
See, e.g.: https://www.brennancenter.org/our-work/analysis-opinion/end-mandatory-minimums (Brennan Center for Justice: “End Mandatory Minimums”).
More specifically, the mandatory minimum sentences are too long and do not fairly consider the circumstances of the offense or the offender’s criminal history.
Deviation from Federal Drug Cases Mandatory Minimum Sentencing Guidelines
The prosecution may plea bargain with defendants in federal court and recommend a sentence below the statutory minimum sentence.
See, e.g.: U.S. Attorney’s Office — Central District of California (https://www.justice.gov/usao-cdca/contact)
The court may accept the prosecutor’s recommendation and sentence the defendant accordingly. However, the court is not required to do so, and may instead sentence the defendant to the statutory minimum sentence or higher.
There are several reasons why a prosecutor might recommend a sentence below the mandatory minimum sentence for a federal drug offense. One reason is that the prosecutor may believe that the defendant does not deserve the mandatory minimum sentence because the defendant’s role in the offense was minimal. Another reason is that the Assistant U.S. Attorney may believe that the defendant will be more likely to cooperate with the government if he or she is “offered” a shorter prison term (meaning that in consideration for cooperation, the prosecutor will recommend a lenient prison term).
See: https://www.ojp.gov/ncjrs/virtual-library/abstracts/drug-informants-motives-methods-and-management (U.S. D.O.J. – “Drug Informants: Motives, Methods, and Management”).
The prosecutor may also believe that a shorter sentence may be more effective in deterring the defendant from committing future crimes. If the offender is a first-time, non-violent offender with no criminal history, the judge may use a “safety valve” provision to avoid imposing the mandatory minimum sentence.
See: https://sgp.fas.org/crs/misc/R41326.pdf (C.R.S. – “Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions”).
Federal Drug Offenses and the Death Penalty
The death penalty is available for drug-related offenses in federal court but is rarely imposed. The death penalty has only been imposed three times for drug-related offenses since the federal death penalty was reinstated in 1988.
See: https://deathpenaltyinfo.org/stories/federal-laws-providing-death-penalty (Death Penalty Information Center – “Federal Laws Providing for the Death Penalty”).
Federal Drug Offenses and Three-Strikes Laws
There is no federal three-strikes law as in California, which provides for longer sentences for offenders with certain prior felony convictions.
See Strike Offense (California Penal Code section 667(a)&(b): https://codes.findlaw.com/ca/penal-code/pen-sect-667.html; California Penal Code section 667.5(c) (“Violent Felonies”): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=667.5.&lawCode=PEN; California Penal Code section 1192.7(c) (“Serious Felonies”): https://codes.findlaw.com/ca/penal-code/pen-sect-1192-7.html).
Strike Sentencing Enhancement (California Penal Code section 1170.12: https://codes.findlaw.com/ca/penal-code/pen-sect-1170-12.html)
Defenses to Federal Drug Trafficking Charges
There are numerous viable defenses to federal drug trafficking charges.
Some of these defenses may be specific to the type of drug involved, while others may be more general.
- Government Overreach ⏤ This is a defense that is often raised in drug conspiracy cases. Government overreach occurs when the government violates the Constitutional rights of the accused during the investigation or arrest process. See Fourth Amendment of the U.S. Constitution: https://constitution.congress.gov/constitution/amendment-4/
The government routinely violates the rights of individuals during drug conspiracy investigations. The most common violation of rights occurs when the government searches the home of an individual without a search warrant.
If the government searches the home of a suspect without a valid search warrant, the search can be ruled illegal, or the federal agents exceed the scope of the search warrant, then the evidence gathered as a result of the illegal search can be suppressed. A successful motion to suppress evidence can lead to the dismissal of charges and freedom for the accused.
See Federal Motion to Suppress: https://www.law.cornell.edu/wex/motion_to_suppress
- Insufficient Evidence ⏤ This is the most common defense raised in drug conspiracy cases. The government must prove the accused conspirator knew the conspiracy existed and that he or she knew the objective of the conspiracy. The government will often rely on the statements of informants or other co-conspirators to establish the required knowledge. If the government cannot establish that the accused knew the conspiracy existed and knew its objective, the charges can be dismissed.
Other defenses include:
The defendant did not know that the drug was illegal. This may be the case if the drug was recently classified by the federal government as being illegal, or if the defendant is from a country where the drug is legal.
The defendant did not know that the drug was in their possession. This could be the case if the drug was planted on the defendant without their knowledge.
The defendant was entrapped by law enforcement. This occurs when law enforcement officers induce a person to commit a crime that they would not have otherwise committed. To successfully use this defense, the defendant must show that they were not predisposed to commit the crime and that the law enforcement officers used improper methods to induce them to commit the crime.
Seizure and Forfeiture of Property in Federal Drug Cases
Under 21 U.S.C. § 853, the government can seize and forfeit any property that is connected to a felony violation of the Controlled Substances Act.
See Criminal Forfeitures (21 U.S. Code § 853: https://www.law.cornell.edu/uscode/text/21/853).
Below are examples of property that the government may forfeit or seize.
- Any property that is used to facilitate drug trafficking or that represents the proceeds of drug trafficking;
- Any property that is purchased with drug trafficking proceeds. For example, if a defendant purchases a boat with drug proceeds, the government may seize the boat as a substitute asset;
- Any property that is owned jointly by a defendant and his or her immediate family. For example, if a defendant owns a house jointly with his or her spouse, the government may seize the house following a successful investigation;
- Any property that is owned by a defendant’s spouse or child if the spouse or child knew that the property was purchased with drug proceeds. For example, if a defendant purchases a house with drug proceeds and his or her spouse knows about it, the government may seize the house; and
- Any property that is used to facilitate drug trafficking or any property that represents the proceeds of drug trafficking. For example, if a defendant uses his or her car to transport drugs, the government may seize the car.
See also: https://www.justice.gov/afms/types-federal-forfeiture (U.S. D.O.J. – “Types of Federal Forfeiture”).