The Top Federal Felony Charges That Come With Mandatory Minimum Sentences: New USSC Report

Posted on November 25, 2024 by Michael Lowe.

The United States Sentencing Commission (“USSC”) recently published new information regarding mandatory minimum sentences in federal felony charges. Read, United States Sentencing Commission Quick Facts Mandatory Minimum Penalties (FY 2024).

What does this mean for criminal defense lawyers as well as federal prosecutors? And, importantly, how does this impact those who are being investigated, charged, convicted, or sentenced in federal criminal courts here in Texas? Consider the following:

Overview of Mandatory Minimum Penalties

First, details in this process are given in our June 2018 overview of the federal criminal justice system’s mandatory minimum sentences, imposed by statutes that establish required punishment in certain cases upon conviction. Read, Mandatory Minimum Penalties in Federal Sentencing.

As a recap overview, it is imperative to understand, as SCOTUS explained over a decade ago, that “…mandatory minimum sentences increase the penalty for a crime.” Alleyne v. United States, 570 U.S. 99, 114, 133 S.Ct. 2151, 2153, 186 L.Ed.2d 314 (2013). Criminal defense strategy is always to detour around a mandatory minimum if possible.

What are they? These mandatory minimum sentences are detailed in specific federal laws that define activities to be illegal. Congress began passing laws creating required punishments for certain criminal convictions many, many years ago. The 1790 Crimes Act, for instance, created a mandatory punishment of death for treason as well as piracy and several other crimes. More recent examples include The Comprehensive Drug Abuse Prevention and Control Act of 1970 and The Anti-Drug Abuse Act of 1986. There is no single federal statute that lists the various crimes that come with mandatory minimum penalties. Each statutory charge must be reviewed to see if it imposes a mandatory punishment within its wording.

There is another consideration after the language of the statute itself. These federal criminal laws are then considered by the USSC in the creation and implementation of the United States Sentencing Guidelines (“USSG”). The USSG oversee how federal courts around the nation are to apply these punishments based on the facts of the particular case before that bench. The USSG work in tandem with the language of the federal criminal statute in the imposition of punishment.

For more on how sentences are calculated under the Sentencing Tables of the USSG, read our earlier discussions (which include examples with images from the Tables) in:

Essentially, those convicted of certain federal crimes have been found to have committed offenses that come with standard punishments. Judges and juries have no option to alter these sentences. They are required by law. Read, Hoel, Adrian, and Karen Gelb. Mandatory Sentencing. 2008.

Federal Crimes With Mandatory Punishment

What crimes are involved in mandatory minimum penalties? They involve certain offense categories involving things like, according to the USSC:

Identity Theft
Drugs
Firearms
Sex Crimes.

Other crimes that can come with mandatory minimums include cases involving armed career criminals; kidnapping charges; various white-collar crimes (think wire fraud; mail fraud; etc.); some kinds of assaults; and possession of child pornography.

The rationale behind mandatory minimum sentences involves things like uniformity of punishment across all the states, as well as implementing a “tough-on-crime” policy against certain behaviors seen as particularly detrimental to society. See, e.g., “A Timeline of the Rise and Fall of ‘Tough on Crime’ Drug Sentencing,” written by Arit John and published by The Atlantic on April 12, 2014.

According to the USSC, in today’s federal criminal justice system, mandatory punishment for specific federal crimes involves the following (using the latest 2023 data): most federal offenses coming with mandatory minimums involved drug offenses (18,818); followed by firearms offenses (11,131); sex offenses (2776); and identity theft offenses (626).

Average Sentence Under Mandatory Minimums

The average sentence varied depending upon the offense. The average sentences were reported as follows:

Identity theft, 57 months; 28 months with relief;
Drug crimes, 138 months; 64 months with relief;
Firearms violations, average sentence under 18 USC §924(c) was 153 months, 108 months with relief; and those qualifying as armed career criminals under 18 USC §924(e) averaged 223 months, 116 months with relief;
Sex abuse crimes, average sentence was 259 months; 159 months with relief;
Child pornography crimes, average sentence was 143 months; 111 months with relief.

Note that sex abuse had the longest average sentence at 259 months, with identity theft the shortest at 57 months.

What does it mean, “with relief” in the USSC descriptions? These individuals were “relieved” of the mandatory sentence as follows:

5% received relief through the safety valve provision;
4% provided the government with substantial assistance;
1% received relief through both.

Of note, women and non-U.S. citizens were much more likely to get relief from the mandatory punishment. Over half:

9% of males received relief;
9% of females received relief;
8% of U.S. citizens received relief;
2% of non-U.S. citizens received relief.

Also of note, the USSC confirms that a majority (59.1%) of those convicted of a crime mandating mandatory minimum punishment did not receive relief.

Drug Crime Details

The drugs involved in the USSC study forming the basis of these convictions were: meth; fentanyl; heroin; cocaine; crack; and marijuana. The fentanyl category included both fentanyl and fentanyl analogues.

For more on fentanyl, read our earlier discussion in: Fentanyl Charges Under Federal Law: Felonies and Range of Sentencing.

Who Is Facing Mandatory Minimum Sentences Today According to the USSC?

The latest USSC publication reports that 26.6% of all federal criminal cases had a mandatory minimum sentence. They tallied as follows:

3% drug trafficking;
1% sexual abuse;
6% child pornography;
8% firearms;
2% fraud.

First Step Act, Mandatory Minimum Penalties: SCOTUS Review of Fifth Circuit Opinion

The First Step Act is another factor in the application of mandatory minimum sentences. Congress passed this legislation in an attempt to fix recognized injustices in the application of mandatory minimums. For details, read:

The First Step Act continues to be litigated. Right now, there is a split among the federal appeals courts regarding how the statute is to be read. The United States Court of Appeals for the Fifth Circuit, which governs Texas federal courts, has taken the position that the old sentencing rules are to be imposed when a district court is faced with imposing a new sentence for an individual who was originally sentenced before the First Step Act was effective law.

Other circuits disagree. While the Sixth Circuit agrees with the Fifth Circuit, three other appeals courts do not (Third; Seventh; Ninth). The result is the pending matter before SCOTUS, where a case arising out of the Fifth Circuit is being considered. Read the Petition for Writ of Mandamus filed with the High Court here.

Several impressive amicus curiae (“friends of the court”) have filed briefs in Hewitt v. United States, No. 23-1002, before the Supreme Court of the United States. They include:

It is set for oral argument on January 13, 2025.

Also see, “The First Step Act Applies to Resentenced Defendants,” written by Thomas A. Berry and published by Cato at Liberty on May 6, 2024.

Criminal Defense Considerations Regarding Mandatory Minimum Penalties

There are several obvious concerns for any criminal defense attorney with federal mandatory minimum sentencing. Among them are how these laws impact low-level offenders and minorities much more than others. What about drug mules and couriers, for instance? See, Federal Sentencing for Drug Couriers and Drug Mules.

Another reality is that mercy is tossed aside by these laws: their inflexibility ties the hands of judges who see and understand particular circumstances in a case, as argued by the defense, that warrant a lesser sentence. Each criminal case is different, and each defendant’s criminal behavior may have specific circumstances that cry out for a judge’s compassionate expertise in designing the proper punishment. See, “Supreme Court Justice Sounds Off on Mandatory Minimum Sentences,” published by Fox News on August 12, 2003, and “Lawyers Group Criticizes Strict Sentencing Laws,” written by the Associated Press and published by NBC News on June 23, 2004.

For one such example, read Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence.

Criminal Defense Strategies To Avoid Mandatory Minimum Sentencing

Sentencing strategies in federal criminal matters are complex. The range of arguments relies upon the particularities of the case.

Of course, the primary way to avoid mandatory minimums is to aggressively and successfully enter into plea negotiations with the AUSA. The goal here is to work with the prosecution to drop the specific criminal charge that comes with the mandatory punishment. If that charge is removed, then it will not come up at the sentencing hearing.

For more on plea bargaining, read Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview.

Additionally, there are arguments and authorities to bring before the judge at sentencing. The judge must decide if the specific statute that comes with a mandatory punishment has indeed come into play. What if, under the USSG, the mandatory minimum charges apply based upon the defendant’s criminal history? If so, then a savvy defense lawyer may be able to argue for avoiding the minimum in that particular case. Learn more about sentencing hearings: What Happens When You Plead Guilty to Federal Drug Crime? From Guilty Plea to Sentencing Hearing in a Drug Case.

Furthermore, some cases can be advanced by the safety valve. Safety valve laws apply to those who have little if any criminal history, or who cooperate with the government in a significant way.

For more, read Less Time for Federal Drug Crimes: When Safety Valve Defense Circumvents Mandatory Minimum Sentences Under Federal Law and watch this video: Federal Drug Conspiracy Possession With Intent to Distribute: Safety Valve at Sentencing – New Video.

It is critical for anyone facing federal criminal charges to understand that some federal crimes, upon conviction, come with automatic sentences where the judge will have no discretion to alter that punishment. And not only will the convicted person have to spend that set number of years behind bars, no matter the circumstances of their specific case, they will have to do so without any chance of parole or early release.

Unfair? Many think so. Nevertheless, as the USSC points out in its 2024 Quick Facts publication, mandatory minimum sentencing is alive and well in the federal criminal justice system today. It is imperative that anyone worried or suspecting that they may be facing charges of federal criminal law violations seek the guidance and support of an experienced federal criminal defense attorney as soon as possible.

For more, read:

With an understanding of how certain federal crimes come with mandatory federal imprisonment, because of mandatory minimum penalties written into the criminal statute, anyone facing potential federal criminal charges is wise to obtain an experienced federal criminal defense advocate as soon as possible.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Why You May Need a Federal Criminal Defense Lawyer in Texas.”

Posted on November 25, 2024 by Michael Lowe , on InDepth Articles, Sentencing

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