Facing Federal Drug Charges? The Solution is to Attack the Sentencing Guidelines (Part 1)

By Kevin Marcilliat, Attorney, Marcilliat & Mills PLLC

“[T]hese fixes do not reach to the heart of the problem, which is that the vast majority of federal drug offenders serving outsize sentences are in for low-level, nonviolent crimes, and have no serious history of violence.”

– NY Times editorial

Despite what appears to be Congress’s best efforts to pass “the most significant federal sentencing reforms in a generation” (according to the New York Times), the best Congress can do, at the moment anyway, is give us a watered down version of a bill that might actually have made a difference in drug sentencing reform.

What once was…

A lawmaker from Wisconsin and another from Virginia originally had a bill on the table that would have put a huge dent in mandatory minimum sentencing – make mandatory minimums apply only to the leaders of drug trafficking organizations – kingpins – rather than to other low-level offenders like drug mules.

What is now…

According to the New York Times, the watered down version of the bill would do the following (admittedly good things):

• Get rid of “life without parole” for drug offenses
• Give judges more power to impose less harsh sentences (instead of having their hands tied by mandatory minimums) in some cases

What it would not do is focus mandatory minimum sentencing on the true drug kingpins, rather than the nonviolent, low-level offenders, who happen to make up the majority of federal inmates in prison on drug offenses.

Is the definition of ‘drug trafficking’ too broad?

If you’re a so-called drug kingpin (or otherwise one of the leaders of a drug trafficking operation), you fit the criteria of “drug trafficking,” at least under most laws as they’re written.

But, the way things play out, you also fit the criteria of “drug trafficking,” even if you’re just a drug mule, taking drugs to a seller on the street corner. That’s a long way from kingpin status.

Yet federal prosecutors use the haunting specter of mandatory minimum sentences to try to get low-level offenders to squeal on the higher-ups. That’s something us federal defense lawyers, who make it our job to defend people in these situations and to obtain the best result possible under the circumstances, know all too well.

The result is harsh punishment in situations that don’t call for it.

Pleading guilty in federal court is just the beginning.

According to Forbes, approximately 97% of federal drug defendants plead guilty rather than going to trial – but trial is not the only way to assert your rights in a meaningful way. Conventional wisdom holds that pleading guilty is the equivalent of “throwing in the towel,” but the reality in federal court is that the real battle is only just beginning.

An overview of the process in federal district court:

• Initial appearance and arraignment: On the advice of your defense attorney, you make a decision to plead guilty or not guilty.
• Presentence Investigation Report: If you plead guilty – as the majority of federal drug defendants do – the process isn’t over. The U.S. Probation Office creates a lengthy document known as the Presentence Investigation Report (affectionately known as the “PSR”).

The importance of the PSR to the ultimate outcome of the cannot be overstated – this is the document the federal judge will ultimately review at your sentencing hearing while determining how long your prison sentence will be.

This document contains the “Guideline Range” prison sentence that probation deems appropriate based on their interpretation of the U.S. Sentencing Guidelines; however, probation often vastly overplays the Government’s hand when it comes to the application of various sentencing enhancements that have a huge impact on the Guideline Range.

The solution is to attack the Sentencing Guidelines.

For this reason, it is absolutely vital for a federal drug defendant to have an attorney who is not only well versed in the U.S. Sentencing Guidelines, but also one who knows how to attack the PSR before it ever lands on the judge’s desk for the sentencing hearing.

The federal criminal defense team at Marcilliat & Mills PLLC has developed a unique approach to challenging the application of the Guidelines in the PSR in ways that have meaningfully impacted the lives of their clients.

In Part 2, we will give you a sneak peek at a few of the most effective Guideline challenges employed by the attorneys of Marcilliat & Mills PLLC.

If you or someone you know has been charged in federal court or received a target letter from the U.S. Attorney’s Office, contact criminal defense attorney Kevin Marcilliat for a free consultation. Kevin Marcilliat is a skilled criminal attorney who defends clients charged with drug offenses, financial crimes, and sex offenses, among others, in state and federal courts throughout North Carolina. To contact criminal lawyer Kevin Marcilliat, please contact the law firm or call 877-242-1397 for a free consultation. Marcilliat & Mills PLLC can also be followed on Facebook.