Major Changes to Federal Drug Crime Sentencing Guidelines Underway: DOJ’s Holder Helps Federal Criminal Defense Lawyers Get Lower Sentences for Drug Defendants

In 1986, Congress passed the Anti-Drug Abuse Act (”ADAA”) which formed a two level (aka two-tiered) formula for use in federal sentencing of certain kinds of drug traffickers. This was the first federal legislation passed as part of the “War on Drugs” (there were others, e.g., the Fair Sentencing Act of 2010). In the ADAA, mandatory minimum drug sentences were set up (among other things), where federal law required a federal judge to sentence someone convicted of a federal drug crime to a set amount of time in prison that was correlated to the amount and type of drugs for which he or she was found to possess.

Big Fish and Little Fish in One Big Sentencing Net – Current Federal Drug Sentencing Guidelines

When the ADAA was passed, Congress was attempting to establish nationwide sentencing minimums to serious drug crimes; however, the result of its application in courtrooms across the country has been to have lower level drug charges and people who are far from Kingpins being scooped up into guideline ranges and getting years of incarceration that are almost the same as those for the serious offenders.

In short, the quantity of drugs does not automatically jive with the position of power in a drug trafficking operation. The result of the federal law’s application has been to sentence people with only a tangential part in a drug trafficking scheme in much the same result as those who are dealing and running illegal drug operations. See, U.S. Dept. of Justice, Nat’l Inst. Of Justice, An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories (1994, February).

Federal Penitentiary in Beaumont: a Texas high security federal prison

Justice Department Wants to Change Drug Sentencing for Federal Drug Crimes

In January, the United States Sentencing Commission formally began the process of altering the federal sentencing process for drug crimes. Specifically, the Commission is proposing an amendment to revise the Drug Quantity Table that is used in the sentencing guidelines for federal drug trafficking offenses.

This Drug Quantity Table, subsection (c) of 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy), would be changed so that the offense level associated with drug quantities that trigger the statutory and ten-year mandatory minimum penalties down from the current 27 and 32 levels to a lower 24 and 30, respectively.

Read the full text of the United States Sentencing Commission’s 2014 Proposed Amendments to the Federal Sentencing Guidelines here.

Eric Holder Testifies On Behalf of the Justice Department

Last week, Attorney General Eric Holder, representing the Department of Justice before the United States Sentencing Commission, testified that the Obama Administration is essentially in support of a proposed a two-level reduction BUT the proposal if effective would have no effect and would not change the mandatory minimums in sentencing drug crimes in federal court where they are mandated by federal law. Holder stated (read his full statement here):

The Justice Department strongly supports the Commission’s proposed change to the Drug Quantity Table. If adopted, this amendment would lower by two levels the base offense levels associated with various drug quantities involved in drug trafficking crimes. This would have the effect of modestly reducing guideline penalties for drug trafficking offenses while keeping the guidelines consistent with current statutory minimums – and continuing to ensure tough penalties for violent criminals, career criminals, or those who used weapons when committing drug crimes. …

As it stands – and as this Commission has recognized – certain types of cases result in too many Americans going to prison for too long, and at times for no truly good public safety reason. Although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners. One in 28 American children currently has a parent behind bars. State and federal governments spent a combined $80 billion on incarceration during 2010 alone. And as you know – of the more than 216,000 current federal inmates – nearly half are serving time for drug-related crimes….

Among the key changes I mandated … is a modification of the Justice Department’s charging policies – to ensure that people convicted of certain low-level, nonviolent federal drug crimes will face sentences appropriate to their individual conduct – rather than stringent mandatory minimums, which will now be applied only to the most serious criminals. The Commission’s proposed amendment to the Federal Sentencing Guidelines would help to further advance and institutionalize this work, controlling the federal prison population and ensuring just and proportional sentences.

What This Means to Texas Defendants Facing Federal Drug Charges in Federal Sentencing Hearings

Read carefully, and you will find that Attorney General Eric Holder’s proposed 2 level reduction does not change statutory minimums in sentencing. Holder’s proposal goes to the sentencing guidelines ONLY. He’s proposing changes to the guidelines and he’s explaining that within the Justice Department, he has instructed his prosecutors to follow new policies on how they charge people to try and solve the problem of “little fish” being dumped into the same sentencing law requirements as the “big fish” of drug trafficking.

So, the guidelines are what is at issue here. Not the sentencing statutes. Nevertheless, by Holder endorsing the reduction at levels down by two levels, if effective, would be a very positive step for those that are not bumping up against mandatory minimum sentences as set by statute. This may mean significant benefits to current and future defendants in federal drug cases; for instance, I can think of one instance of a pending federal drug case here in Texas where this proposal by Holder, if followed, would save the defendant up to 48 months in a federal prison — and 48 months (4 years) is a significant change for the better in someone’s life as they face sentencing by a federal district judge.

More about these important proposed changes to the current federal criminal sentencing procedures next week.