How to Avoid Potentially Mandatory Minimum Jail Sentences in Federal Drug Cases

Mandatory Minimum Jail Sentences in Federal Drug Cases

Mandatory minimum jail sentences in federal drug cases are avoidable.  Under federal law, illegal drugs and controlled substances are addressed in Title 21, United States Code, Section 841 (21 U.S.C. § 841).   There are three levels of federal felony drug crimes.   All drugs may fit into one or more levels depending upon the drug type and quantity involved.  Threshold quantities of specific drugs trigger mandatory minimum jail sentences.  Under limited circumstances, these mandatory minimum sentences may be avoided by convicted drug offenders.

Levels of Federal Drug Offenses

The three levels of federal drug offenses are set forth in 21 U.S.C. § 841.  The first and most severe level, 21 U.S.C. § 841 (b)(1)(A), provides that convicted offenders shall be punished by a term of imprisonment not less than ten (10) years and no more than life.   The second level, 21 U.S.C. 841 (b)(1)(B), provides that convicted offenders shall be punished by a term of imprisonment not less than five (5) years and no more than forty (40) years.   The third and least severe level, 21 U.S.C. § 841 (b)(1)(C), contains no mandatory minimum jail time and provides that convicted offenses may be punished for not more than twenty (20) years.   This level does not contain mandatory jail time.

Avoiding Mandatory Minimum Jail Sentences

If you are charged with a federal drug crime that calls for a mandatory minimum jail sentence upon conviction, there are four ways to avoid the mandatory prison term.  

Winning at Trial

The first way is to proceed to trial and win.   This may occur with a finding or verdict of not guilty of any alleged drug crime or upon a guilty finding, but not of the drug type or quantity required by law for imposition of a mandatory minimum jail sentence. 

For example, conspiracy to possess with intent to distribute a mixture or substance containing a detectable amount of heroin in the quantity of one kilogram or more has a mandatory minimum jail sentence of 10 years, if convicted.  If a jury finds you not guilty of this offense after trial, no punishment is imposed.  Alternatively, if the jury finds you guilty of conspiring to possess heroin, but in a quantity less than one kilogram, you would be eligible for a sentence below 10 years, thus avoiding the mandatory minimum.

Plea Agreement Negotiation

The second way to avoid mandatory minimum jail time in federal drug cases is to negotiate terms of a plea agreement with the government that provides for admitting guilt or responsibility to a lower level drug crime that does not require a mandatory sentence.  Again, for an example involving heroin, one kilogram or more triggers a mandatory minimum jail term of 10 years, whereas 100 grams or more of heroin triggers a mandatory minimum jail sentence of 5 years.   If charged with a drug crime involving one kilogram or more of heroin under 21 U.S.C. § 841 (b)(1)(A), you may seek to negotiate a plea agreement that calls for your admission to 100 grams or more under 21 U.S.C. 841 (b)(1)(B).  Similarly, you may seek to negotiate a plea agreement that calls for an admission to a drug offense involving heroin, but without reference to any particular quantity under 21 U.S.C. § 841 (b)(1)(C).  In this instance, no mandatory minimum jail sentence would apply.

Successfully negotiating a plea agreement to a federal felony drug crime that does not involve a mandatory sentence is contingent on several factors.   These factors include, but are not limited to, the individual defendant’s criminal history and level of culpability; the nature and circumstances of the charged offenses; the defendant’s background and personal circumstances; the U.S. Attorney’s Office prosecuting the matter; current Department of Justice policy; evidentiary strengths and weaknesses of the case; and other factors.  Having a hardworking, experienced criminal defense lawyer with a reputation for successfully handling federal criminal matters is also important.

Safety Valve Provision

The third way to avoid potential mandatory minimum jail time is to qualify for a limitation on the application of mandatory jail sentences in federal drug cases that are described in 18 U.S.C. § 3553 (f) and U.S. Sentencing Guidelines § 5C1.2 (U.S.S.G.).  This limitation on the application of mandatory minimum jail time is colloquially called the “safety valve.”  To qualify for this exception to mandatory minimum jail time, the defendants who plead guilty or accept responsibility for their misconduct must meet five criteria: (1) have no more than one criminal history point for purposes of U.S.S.G. calculations; (2) did not use violence or threats of violence or possess a firearm or other dangerous weapon during the instant offense; (3) did not cause death or serious bodily injury to another during commission of the instant offense; (4) did not serve as an organizer, leader, supervisor or manager of others in the instant offense; and (5) truthfully provide the government with all known information regarding his or her own misconduct.  Defendants who meet the above-referenced criteria, regardless of the convicted drug offense, are not subject to mandatory minimum jail sentences.

Cooperation With the Government

The fourth and final way to avoid mandatory minimum jail time if convicted of a federal felony drug offense is to cooperate with the government.   There are many ways to cooperate.   Examples include meeting with government officials and disclosing information of others’ criminal conduct, identifying others believed to be involved in criminal activity, providing testimony against others at grand jury, pretrial and/or trial proceedings, participating in controlled purchases of narcotics under the supervision of law enforcement, wearing a secret wire, recording device or camera under the supervision of law enforcement, and more.

Cooperation Agreements and Sentencing

People who cooperate usually plead guilty, enter into a plea agreement with the government, and typically, a separate cooperation agreement.   These agreements make no promises to the defendant.  They are open-ended and contain no guarantees of leniency or specific sentencing recommendations.   When cooperation is complete and it is time for sentencing, if the government is satisfied with the cooperator’s efforts, it will file a motion under U.S.S.G. § 5K1.1.   This provision is entitled Substantial Assistance to Authorities.   The government controls the filing of this motion.  If the motion is filed, the cooperating defendant is no longer subject to mandatory minimum jail time for his or her convicted offense and the Court is free to impose whatever sentence it deems to be appropriate.

The Importance of Legal Representation

Mandatory minimum jail sentences in federal court are harsh.  When applicable, federal judges do not have authority to avoid imposing them unless one of the exceptions described in this article applies.  Under current Department of Justice (DOJ) policy, the governing is pursuing the highest-level drug offenses supported by evidence to seek mandatory minimum sentences for convicted offenses.   Current DOJ administration also endorses the use of 21 U.S.C. § 851, which allows mandatory minimum sentences to be doubled for defendants with prior drug convictions.   Because of this current landscape in the federal criminal justice system, having an experienced federal criminal defense attorney on your case cannot be underestimated.

If you have been charged with a federal drug crime, call Federal Criminal Defense Attorney John L. Calcagni III today for a free consultation.   He is licensed and actively practices in U.S. District Courts for the Districts of Rhode Island, Massachusetts, Connecticut, Southern District of New York, Eastern District of New York and the Northern District of New York.