Policy Changes in Charges, Pleas, and Sentencing for Federal Drug Crime Prosecutions: New AG Garland DOJ Directive

An internal memorandum from the Attorney General of the United States (“AG”) addressed to “all federal prosecutors” may not seem that powerful to some.  After all, it isn’t a new federal statute passed by Congress and it isn’t an Executive Order signed by the President.  Still, a single memo from the AG can cause major changes not only in how criminal cases are investigated, charged, and prosecuted within the federal system but also in effective criminal defense of federal felony matters. An AG Memorandum can be a very big deal for everyone involved in federal criminal cases.

Why?  The Attorney General sits on the President’s Cabinet as the effective “Secretary of the Department of Justice,” alongside the Secretaries of State, Treasury, Education, and Commerce.  Since March 2021, Merrick Garland has served as our nation’s AG, recognized as the “chief law enforcement officer of the federal government.”

AG Garland is the head prosecutor for all federal criminal matters.  So, when the AG instructs his prosecutors throughout the federal system (“AUSAs”) in how they are to do their jobs or in the approaches they are to take in certain types of crimes, those attorneys must follow his mandate.  Sometimes, this may be procedural or technical and without huge ramifications.  In other instances, these AG memoranda may have widespread impact – which is what has happened recently with the Garland’s December 16, 2022, Memorandum.

AG Memorandum 20,530, from Attorney General Merrick Garland to All Federal Prosecutors, Subject: Additional Department Policies Regarding Charging, Pleas, and Sentencing in Drug Cases can be read online in its entirety at the Justice Department website (“AG Memo”).

The AG Memo: Big Changes to Felony Federal Drug Cases

In this new memorandum, federal prosecutors have been instructed on modifications to the policies of the Department of Justice regarding federal drug cases that include (1) charging an offense; (2) plea negotiations and entering into a plea agreement with the defense; and (3) making sentencing recommendations in drug prosecutions. AG Memo, p.1.

This new directive references an earlier internal memorandum (the “General Policies Memorandum”) (“GP Memo”), explaining that it is providing “additional, specific policies regarding charging, pleas, and sentencing in drug cases” that jive with AG Garland and the Justice Department’s decision to focus federal prosecutorial efforts on “combatting violent crime.”  AG Memo, p. 1.

Here is a synopsis of these prosecutorial policy directives that criminal defense attorneys may find in their review of this new Justice Department memorandum:

AUSAs to Avoid Mandatory Minimum Offenses in Title 21 Federal Drug Charges

First, the AG references the GP Memo instruction to AUSAs that “charges that subject a defendant to a mandatory minimum sentence should ordinarily be reserved for instances in which the remaining charges … would not sufficiently reflect the seriousness of the defendant’s criminal conduct, danger to the community, harm to victims” and “such purposes of the criminal law as punishment, protection of the public, specific and general deterrence, and rehabilitation.” GP Memo, pp.2- 3.

AG Garland, including a reference to the United States Sentencing Commission, points out that this new policy has “particular force in drug cases brought under Title 21 of the United States Code, where mandatory minimum sentences based on drug type and quantity have resulted in disproportionately severe sentences for certain defendants and perceived and actual racial disparities in the criminal justice system.” AG Memo, p. 1.

• See United States Sentencing Commission, Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal Justice System 8, 26, 57 (Oct. 2017), and our prior discussion in Mandatory Minimum Penalties in Federal Sentencing.

How AUSAs Should Decline to Charge Quantity to Trigger Mandatory Minimums: 4 Criteria

The Attorney General then instructs federal prosecutors that they “should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant satisfies all of the following criteria” in a Title 21 drug case:

• The defendant’s relevant conduct does not involve: the use of violence, the direction to another to use violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;
• The defendant does not have a significant managerial role in the trafficking of significant quantities of drugs;
• The defendant does not have significant ties to a large-scale criminal organization or cartel, or to a violent gang; and
• The defendant does not have a significant history of criminal activity that involved the use or threat of violence, personal involvement on multiple occasions in the distribution of significant quantities of illegal drugs, or possession of illegal firearms.

-AG Memo, pp. 1-2.

What About The Safety Valve?

AG Garland explains that when applying these criteria to a particular matter, federal prosecutors are not to take the safety valve into account.  They “…should consider whether the above criteria are satisfied without regard to whether the defendant would be eligible for a sentence below a mandatory minimum term based on application of the safety valve, 18 U.S.C. § 3553(f), or on substantial assistance under 18 U.S.C. § 3553(e).”

For more on the safety valve, read our in-depth article, Less Time for Federal Drug Crimes: When Safety Valve Defense Circumvents Mandatory Minimum Sentences Under Federal Law.

What About If The Case Has Some, But Not All Of The Four Criteria?

Of course, there will be times when the accused meets some, but not all, of the criteria listed in the Garland directive.  What then?  There may still be a way to avoid the mandatory minimums.

AG Garland instructs federal prosecutors that they “…should not automatically charge the quantity necessary to trigger the mandatory minimum, but rather weigh the considerations set forth in this memorandum and the General Policies Memorandum to carefully determine, through the exercise of their discretion and in consultation with their supervisors, whether a Title 21 charge with a mandatory minimum sentence is appropriate.” AG Memo, p.2.

He gives an example: “[I]n a case involving a defendant who serves only as a “drug mule,” but who arguably does not satisfy all of the criteria discussed above, the balance of considerations may still weigh against the filing of a Title 21 charge carrying a mandatory minimum sentence.” AG Memo, p.2, fn.1.

Supervisory Attorney Must Approve Any Mandatory Minimum Charge

The AG Memo reiterates the requirement of GP Memo that requires any decision to include a mandatory minimum charge in a charging document or plea agreement cannot be made by the federal prosecutor alone.  These mandatory minimum prosecutions have to reviewed and approved by the appropriate supervisory attorney for that prosecutor’s division.

Criteria and Timing of Discovery: Charges, Indictment

Prosecutions build over time; what if there are additional facts that come to light as the case proceeds through the system?  The AG Memo considers the timing of discovery for the criteria that circumvents mandatory minimums.  AG Memo, p.2.

AG Garland direction here is clear:

If information sufficient to determine that all of the criteria above are satisfied is available at the time initial charges are filed, prosecutors should decline to pursue Title 21 charges triggering a mandatory minimum sentence.

If this information is not yet available, prosecutors may file charges involving these mandatory minimum statutes pending further information. If information that the criteria are satisfied is subsequently obtained, prosecutors should pursue a disposition that does not require a Title 21 mandatory minimum sentence.

For example, a prosecutor could ask the grand jury to supersede the indictment with charges that do not carry mandatory minimum sentences; a defendant could plead guilty to a lesser included offense that does not carry the mandatory minimum; or a defendant could waive indictment and plead guilty to an information that does not charge the quantity necessary to trigger the mandatory minimum.

AG Memo, pp.2-3.

AUSAs Should Try and Avoid Filing Under 21 U.S.C. § 851 for Enhancement

The AG also instructs federal prosecutors on what to do when there are drug charges that would provide for the filing of an information pursuant to 21 U.S.C. § 851, which requires enhanced statutory penalties as a part of sentencing.  AG Memo, p. 3.

AG Garland directs DOJ prosecutors that drug cases should be considered using “…the same criteria discussed above for charging mandatory minimum offenses, as well as whether the filing would create a significant and unwarranted sentencing disparity with equally or more culpable codefendants.”  AG Memo, p. 3.

Moreover, “Prosecutors are encouraged to make the Section 851 determination, and to file any such a notice, at the time the case is charged or as soon as possible thereafter.” AG Memo, p.3.

And, of great interest from a criminal defense perspective, comes the following instruction regarding plea bargaining or negotiation of settlement versus going to trial:

“As with any filing, a Section 851 enhancement should not be filed simply to exert leverage to induce a plea or because the defendant elected to exercise the right to trial. General Policies Memorandum at 3.”  AG Memo, p.3.

AUSA Sentencing Recommendations in Federal Drug Cases

In the federal criminal justice system, unlike the Texas criminal courts, there are sentencing guidelines established by the United States Sentencing Commission that are to be followed by the judge when imposing punishment. For details, read our discussions in

• Loss Amounts in Federal Sentences: Calculating Economic and Financial Losses in Federal Felonies
• Methamphetamine Trafficking and Federal Sentencing 
• Money Laundering and Federal Sentencing Guidelines
• Guns and Drug Trafficking:  Firearms and Mandatory Minimum Sentences under Federal Law.

AG Garland considers how these sentencing guidelines are to work with federal drug cases in 2023.  He explains that “[t]he General Policies Memorandum advises that, although in many cases the appropriate balance among the 18 U.S.C. § 3553(a) factors will lead to a recommendation for a sentence within the advisory range resulting from the application of the Sentencing Guidelines, there are cases in which such a sentence may not be “proportional to the seriousness of the defendant’s conduct” or “achieve the purposes of criminal sentencing as articulated in 18 U.S.C. § 3553(a).” Accordingly, “…[i]n such cases, prosecutors may conclude that a request for a departure or variance above or below the guidelines range is warranted.” AG Memo, p. 3, citing GP Memo p.5.

The AUSAs are instructed to handle sentencing recommendations in the context of drug cases as follows, where “…requests for departures or variances may be particularly justified in the following circumstances”:

• Certain cases in which the guidelines range does not adequately reflect the defendant’s crime and culpability:

At times, a low-level seller in a large-scale drug organization may be held responsible under the relevant conduct provisions of the Sentencing Guidelines for a large quantity of drugs that produces an advisory range near the top of the sentencing table. In such cases, prosecutors should consider supporting a downward departure or variance, particularly where all or most of the criteria listed on the first two pages of this memorandum are satisfied. Conversely, where the criteria are satisfied and yet the penalty yielded by the advisory guidelines range is not proportional to the seriousness of the defendant’s conduct, prosecutors may consider seeking an upward departure or variance.

• Certain cases in which the career offender guidelines range does not adequately reflect the defendant’s crime and culpability:

Similar consideration should be given in a case in which the defendant is subject to sentencing under the career offender guideline, see U.S.S.G. § 4 B 1.1, which is designed to trigger guideline ranges at or near statutory maximum sentences. In a case in which all or most of the listed criteria are present, and the defendant’s status as a career offender is predicated only on the current and previous commission of nonviolent controlled substance offenses, prosecutors should consider supporting a downward variance to the guidelines range that would apply in the absence of career offender status.2 (For purposes of this memorandum, nonviolent offenses are those that do not involve the actual or threatened use of a weapon or other means of violence.) Conversely, if the defendant’s prior convictions involved the actual or threatened use of violence, but the crimes do not qualify as career offender predicates under the “categorical approach,” if appropriate prosecutors may consider advocating for an upward variance, including toward the career offender range.

• AG Memo, p.3.

Final Word on Sentencing Recommendations

The AG gives the final word on federal prosecutorial sentencing recommendations. He reminds them that “prosecutors must always be candid with the court, the probation office, and the public as to the full extent of the defendant’s conduct and culpability, including the type and quantity of drugs involved in the offense and the quantity attributable to the defendant’s role in the offense, even if the charging document lacks such specificity.”  AG Memo, p. 4.

When The Charges Involve Crack Cocaine

AG Garland recognizes the difference between crack cocaine and powder cocaine in federal felony prosecutions and the well-known sentencing disparity between the two.

He confirms that the “Justice Department supports elimination of the crack-to-powder sentencing disparity … and supports the EQUAL Act, S. 79, which would remove that disparity.”  AG Memo, p. 4.

In support of his position, the AG includes a segment of the formal DOJ Statement to the Senate Judiciary Committee on June 22, 2021, which states: “First, the crack/powder disparity is simply not supported by science, as there are no significant pharmacological differences between the drugs: they are two forms of the same drug, with powder readily convertible into crack cocaine. Second, as documented by the Sentencing Commission, the crack/powder sentencing differential is still responsible for unwarranted racial disparities in sentencing. Third, the higher penalties for crack cocaine offenses are not necessary to achieve (and actually undermine) our law enforcement priorities, as there are other tools more appropriately tailored to that end.” AG Memo, p. 4 and fn.3.

AUSA Directive on Crack Cocaine Cases

The AG has clear instructions to AUSAs on what to do in crack cocaine cases.  They should take the following steps to promote the equivalent treatment of crack and powder cocaine offenses:

If charging a mandatory minimum term of imprisonment under Title 21 for a drug offense involving crack cocaine is deemed warranted under this memorandum, prosecutors should charge the pertinent statutory quantities that apply to powder cocaine offenses. The Criminal Division and the Executive Office for United States Attorneys will issue further guidance on how to structure such charges.

At sentencing, prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine. Where a court concludes that the crack cocaine guidelines apply, prosecutors should generally support a variance to the guidelines range that would apply to the comparable quantity of powder cocaine.

– AG Memo, pages 4-5.

Once again, the AG has a final word here: “[P]rosecutors must always be candid with the court, the probation office, and the public as to the full extent of the defendant’s conduct and culpability, including the type and quantity of drugs involved in the offense, even if the charging document lacks such specificity.” AG Memo, p.5.

Federal Criminal Defense in Felony Drug Cases After December 2022

For anyone accused of federal drug crimes in 2023 and beyond, these new internal policies of the Justice Department may be critical in how their lives are changed by federal investigation, arrest, prosecution, and sentencing.  This is particularly true for those who have been charged in cases involving crack cocaine.

Criminal defense lawyers practicing in federal court know that the AG Memo is not available to be filed of record or used in argument as if it were court case precedent or Congressional legislation.  It is a policy of the Justice Department’s internal operations.  These directives of the Attorney General of the United States are not enforceable by the defense, but they can be very helpful in any discussions, negotiations, and formal plea negotiations for anyone accused under federal criminal law.

The importance of the new AG policy charges cannot be underestimated here in Texas.  For many defendants who will be facing criminal prosecution in any of our federal district courts, the new AG Memo may be tremendously beneficial.

For more on the new AG Memo, read:

• “U.S. Attorney General moves to end sentencing disparities on crack, powder cocaine,” written by David Nakamura and published by the Washington Post on December 16, 2022;
• “ACLU Applauds Merrick Garland for Directive to End Crack and Powder Cocaine Sentencing Disparity,” published by the ACLU on December 16, 2022; and
• “Garland Takes on Mandatory Minimums,” published by the Brennan Center for Justice on January 11, 2023.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read,” Pre-Arrest Criminal Investigations” and “What Happens When You Plead Guilty to Federal Drug Crime? From Guilty Plea to Sentencing Hearing in a Drug Case?”