“[T]he 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
These challenges can help chisel years off a potential sentence.
In Part 1, we gave you some background on federal drug charges and the sentencing guidelines.
In today’s Part 2, we give you a peek at a few of the most effective Guideline challenges that we employ on behalf of our clients at Marcilliat & Mills PLLC:
- Challenge the drug quantity calculations
- Use the safety valve where appropriate
- Challenge unsubstantiated sentencing enhancements
After reading about these challenges, if you or a loved one is facing federal drug charges and you’d like to speak with an attorney for more information, give Marcilliat & Mills PLLC a call at 877-242-1397.
Challenge the Drug Quantity Calculations
The drug quantity that can be attributed to a federal drug defendant at sentencing is one of the most important factors in determining their ultimate punishment. The higher the quantity of drugs that can be attributed to a defendant, the higher their sentence is likely to be – not to mention the fact that certain quantities can trigger mandatory minimum prison sentences. As noted by the New York Times article, current sentencing policy allows federal prosecutors to assign the entire amount of drug weight found in a drug operation (also known as a conspiracy) to a single defendant, even if that defendant played a relatively minor role in the conspiracy.
Furthermore, the prosecution often seeks to drastically increase the defendant’s Guideline Range by using testimony from confidential informants (CIs) who have allegedly dealt with members of the conspiracy in the past to attribute additional drug weight (also known as “ghost dope” or “ghost weight”) to that defendant. Although the prosecution is not required to prove drug quantity attributable to a particular defendant as a member of a conspiracy beyond a reasonable doubt, federal courts have recognized that drug defendants have a “due process right to be sentenced on the basis of reliable information” (see United States v. Beler, 20 F.3d 1428, 1432 (7th Cir. 1994)).
As a result, it is critical for the defense to challenge the reliability of any CI testimony that increases the defendant’s drug quantity calculations. In a recent case, the attorneys at Marcilliat & Mills PLLC made a successful challenge to the reliability of confidential informant testimony which resulted in the government removing approximately 90% of the alleged drug quantity from the defendant’s PSR – reducing the defendant’s total drug responsibility from over 1000 grams of crack cocaine to less than 100 grams. These objections ultimately resulted in the reduction of the defendant’s recommended Guideline Range by more than 10 years.
Use the Safety Valve Where Appropriate
Assuming that the defendant’s provable drug quantity is enough to trigger a mandatory minimum prison sentence, there are only two ways for the defendant to obtain a sentence below that number: proving the defendant qualifies for the “safety valve” under 18 U.S.C. § 3553(f), or proving the defendant provided substantial assistance under USSG § 5K1.1. Given that “earning a 5K” for substantial assistance depends entirely on whether the defendant possesses information of interest to the Government and the defendant’s willingness to share that information, we will focus our discussion here on the safety valve.
Pursuant to § 3553(f), a federal judge is required to sentence the defendant based solely on the Guidelines (even if the Guideline Range is less than the otherwise applicable statutory maximum) where five requirements are met:
a) The defendant does not have any previous criminal history (defined as “not more than 1 criminal history point”);
b) The defendant did not use violence, threats of violence, or a firearm or other dangerous weapon;
c) The offense did not result in death or serious bodily injury to any person;
d) The defendant was not an organizer, leader, or supervisor of others involved in the offense; and
e) Prior to sentencing, the defendant provides to the Government all information and evidence the defendant has regarding the offense.
Because seeking to use the safety valve to earn a lesser sentence requires the defendant to truthfully provide to the Government information regarding their own criminal conduct prior to the conclusion of their case, this strategy involves inherent risks and should only be used in consultation with an experienced federal criminal defense attorney.
Challenge Unsubstantiated Sentencing Enhancements
Another strategy often employed by federal prosecutors to seek an increased sentence for a federal drug defendant is to maximize the use of (sometimes unwarranted) sentencing enhancements which are set out in the U.S. Sentencing Guidelines. Similar to the drug quantity discussion above, these enhancements are often placed in the Draft PSR by the US Probation Office based on their interpretation of the evidence. If left unchallenged by the defense, these enhancements can form the basis for a federal judge to give the defendant additional prison time at the sentencing hearing. Depending on the defendant’s base offense level, a single one of these enhancements could be the difference in several years of the defendant’s life.
Common sentencing enhancements for federal drug defendants include those for use of a dangerous weapon (increase 2 levels), role in the offense (increase up to 4 levels), and record-related enhancements such as Career Offender or Armed Career Criminal. Similar to the discussion of proving drug quantity above, the Government must prove such enhancements based on reliable information, and may only use uncorroborated hearsay statements to justify an enhancement where “that information has sufficient indicia of reliability to support its accuracy” (see United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir.2010)). Because these enhancements carry the potential to add years to any federal drug defendant’s sentence, the defense must be prepared to challenge any proposed enhancement that is not supported by substantial, reliable evidence.
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