Criminal Defense Alert: Significant Changes in Amendments to 2018 Federal Sentencing Guidelines (USSG)

The 2018 Amendments to the United States Sentencing Guidelines (USSG) were unanimously adopted by the U.S. Sentencing Commission last month.  On May 1, 2018, the Federal Sentencing Guideline amendments were submitted to Congress.

November 2018 Effective Date

They will automatically become effective on November 1, 2018, unless Congress takes proactive steps to disapprove them.  For details on the path each USSG amendment takes from proposal and drafting to becoming an effective part of the Guidelines Manual, read the policy-making discussion provided by the Commission on its site.

Goals of the United States Sentencing Commission

The Sentencing Commission works as an independent agency within the federal judiciary.  It is composed of seven voting and two non-voting, ex officio members.  The Sentencing Commission drafts its  Sentencing Guidelines, as well as the policy statements (commentaries) that are provided to the courts alongside them, pursuant to 28 USC 994(a).

According to Sentencing Commission Chairman, U.S. Circuit Judge William H. Pryor Jr., in the drafting of the 2018 USSG Amendments, the Commission “… worked together to develop solutions that improve the federal sentencing guidelines in a manner that balances fairness, justice, fiscal responsibility, and public safety. I look forward to working with my colleagues to strengthen and to simplify the guidelines. Together, we will continue our efforts to ensure clear and effective guidance for federal courts across the country.”

With the Commission’s stated goals in mind – to balance fairness, justice, fiscal responsibility and public safety – let’s review the changes that are being made to the Federal Sentencing Guidelines from a criminal defense perspective.

Federal Criminal Defense of Drug Crimes

Of particular concern here is the criminal defense of those accused of federal drug crimes involving synthetic drugs, including the extremely popular street drugs like K-2 and fentanyl.  We can expect an increase in arrests and plea negotiations involving all forms of synthetic drugs, if for no other reason that law enforcement perceives these illegal substances as being a huge threat to their efforts.

See, for instance, the discussion in “Threat Assessment: 4 Street Drugs Impacting Police in 2018,” published in January 2018 by PoliceOne.com, where fentanyl is a  named target of the police.

Insofar as Texas, consider the focus on synthetic drugs in the latest DEA National Drug Threat Assessment .  For details, read our discussion in “Texas in the 2017 DEA National Drug Threat Assessment.”

Full Text to 2018 Amendments to the Federal Sentencing Guidelines

The United States Sentencing Commission finalized the 2018 Amendments to the Federal Sentencing Guidelines and released them to the public on April 12, 2018.  The entire text of the 2018 USSG Amendments, together with the Commission’s policy statements and its commentary, are provided below for your convenience:

Significant Changes to the Sentencing Guidelines Effective November 2018

For criminal defense lawyers, it’s important to consider and digest what these changes mean to the defense bar, and how they correspond to the current USSG impacting our clients today.

This is particularly true for those who represent individuals facing federal drug charges, because these USSG Amendments bring major changes in how synthetic drugs are considered under the Sentencing Guidelines.  There are new departure and new enhancement provisions for federal sentencing involving fentanyl, fentanyl analogues, synthetic cannabinoids, and synthetic cathinones.

From my perspective, here is what I perceive to be significant:

1.  Synthetic Cathinones (Flakka, Khat, Bath Salts, etc.)

As we know, bath salts, flakka, gravel, etc., are popular recreational drugs around Texas and the rest of the country.  See, e.g., “Is Flakka Legal in Texas? What Dallas Needs To Know About Flakka.”

What are Synthetic Cathinones?

The DEA defines synthetic cathinones as follows:

Synthetic cathinones have stimulant properties related to cathinone, the psychoactive substance found in the khat shrub, and produce pharmacological effects similar to methamphetamine, cocaine, and MDMA, to name a few. They have been sold as “bath salts”, and sold over the Internet, at convenience stores, tobacco/smoke shops, and gas stations and packaged in shiny plastic bags and bright logos. More recently, the cathinone market has been pushed underground, and is being sold in “traditional drug packaging” like little baggies, and can be found in tablet, capsule, or powder form. Users can experience symptoms of nausea, vomiting, paranoia, hallucinations, delusions, suicidal thoughts, seizures, chest pains, increased blood pressure and heart rate, and violent outbursts. These drugs have also resulted in overdose deaths.  A recent synthetic cathinone product encountered is Flakka; sometimes called Gravel. Flakka is sold as a street deal, like other illegal drugs, not in stores, and can be sold in capsule form or in small baggies. Laboratory analysis has identified the Schedule I controlled substance alpha-PVP in some of these encounters.

Here is how the 2018 USSG Amendments deal with them:

 Comparison to Marijuana

The USSG Amendments adopt a class-based approach to synthetic cathinones.  Now, 1 gram of synthetic cathinone is considered equivalent to 380 grams of marijuana (excluding synthetics that are listed as controlled substances under Schedule III, IV, or V).

Sentencing Table

The minimum base offense level for synthetic cathinones is set at 12.

Methcathinone is included in the class (before the change, it was listed independently in the equivalency table).

Potency Departure

The Amendments recognize that different synthetic cathinones have different levels of potency.  From the Amendments:  “….[t] here may be cases in which a substantially lesser or greater quantity of a synthetic cathinone is needed to produce an effect on the central nervous system similar to the effect produced by a typical synthetic cathinone in the class.”

Methylone (aka MDMA) is used as an example of a synthetic cathinone for a possible downward departure because more methylone is needed for a high, while MDPV is given as an example of a synthetic cathinone for a possible upward departure from the guidelines because of its high potency.

• The DEA Synopsis for Methylone includes its street names “Bath salt,” MDMA, MDMC, MDMCAT, “Explosion,” “Ease,” and “Molly,” and confirms that methylone, it salts, isomers, and salts of isomers, were placed in Schedule I of the Controlled Substances Act (76 CFR 65371) in April 2013.
• The DEA Synopsis for MDPV includes its street names “bath salts,” “Ivory Wave,” “plant fertilizer,” “Vanilla Sky,” “Energy-1” and confirms MDPV, its salts, isomers, and salts of isomers were placed into Schedule I of the Controlled Substances Act (76 CFR 65371) via the Synthetic Drug Abuse Prevention Act of 2012 (Public Law 112- 144, Title XI, Subtitle D).

2.  Synthetic Cannabinoids (Spice, K-2, Synthetic Marijuana, etc.)

Here in the Dallas – Fort Worth area, using Spice or K-2 has become commonplace for many.  Not so long ago, the Dallas Police Chief was quoted as saying law enforcement was “inundated” with trying to control dealers of local K2 / Spice products. See, “Synthetic Drug Arrests In Texas: Police Focusing On K2 And Spice In Dallas.”

What are Synthetic Cannabinoids?

The DEA defines synthetic cannabinoids as follows:

Synthetic cannabinoids are substances that have been encountered laced on plant material and in liquid form and misused and abused for their psychoactive effects. They are often sold under names such as Joker, Green Giant, Scooby Snax, and many others. The misuse and abuse of these substances may result in serious adverse health effects including severe agitation and anxiety, racing heartbeat and high blood pressure, intense hallucinations, and psychotic episodes. Synthetic cannabinoids have also been connected to overdose deaths. These products are generally sold over the Internet, in head shops, tobacco/smoke shops, convenience stores, and gas stations and are often packaged in shiny plastic bags with bright logos.

Here is how the 2018 USSG Amendments deal with them:

Definition Given of Synthetic Cannabinoids

The USSG Amendments provide a definition of “synthetic cannabinoids” as “any synthetic substance (other than synthetic tetrahydrocannabinoil) that binds to and activates type 1 cannabinoid receptors (CB1 receptors).”

Comparison to Marijuana

The USSG Amendments adopt a class-based approach to synthetic cannabinoids.  Now, 1 gram of synthetic cannabinoids is considered equivalent to 167 grams of marijuana (excluding synthetics that are listed as controlled substances under Schedule III, IV, or V).

Sentencing Table

The minimum base offense level for synthetic cannabinoids is set at 12.

Potency Departure

First, there can be a downward departure in calculating under the Sentencing Guidelines if it can be shown there is a “substantially greater quantity of a synthetic cannabinoid is needed to produce an effect on the central nervous system similar to the effect produced by a typical synthetic cannabinoid in the class.”

The Amendments recognize that the potency of synthetic cannabinoids can vary and that some are lower than the “typical synthetic cannabinoid,” e.g., JWH-018 and AM-2201.

In these cases, a downward departure is “invited” because of the low potency of the particular substance.  Specifically, a downward departure is invited if the case involves a “mixture containing a synthetic cannabinoid diluted with an unusually high quantity of base material.”

Contrarily, there are times when concentration and potency in a synthetic cannabinoid invite an upward departure from the USSG.  These are cases involving “pure synthetic cannabinoids,” i.e., those “not combined with another substance.” No examples are given here.

3.  Fentanyl and Fentanyl Analogues

In North Texas, fentanyl and its analogues have surpassed heroin in popularity.  For details, read our discussions in “Carfentanil, Fentanyl Analogues, Heroin, China, The Police, And Felony Arrests,” and “Fentanyl and Heroin Here in Dallas: Dangers of Arrest and More.”

What is Fentanyl or Fentanyl Analogues?

The DEA defines Fentanyl and its Analogues as follows:

Fentanyl is a synthetic opioid. Fentanyl is a very powerful anesthetic (30-50 times more potent than heroin and 50-100 times more potent than morphine) most often used with patients who are already taking other opioids to relieve chronic or breakthrough pain (such as the pain caused by cancer).  Because fentanyl is synthesized, chemists can create a wide range of similar synthetic opioids ranging in potency.  Some of the more commonly abused fentanyl-related substances or fentanyl analogs according to the National Forensic Laboratory Information System (NFLIS) are carfentanil (approximately 100 times more potent than fentanyl) acetyl fentanyl, furanyl fentanyl and 3-methylfentanil.

Here is how the 2018 USSG Amendments deal with them:

 Definition Given for Fentanyl Analogue

The USSG Amendments provide a definition of a fentanyl analogue as “any substance including any salt, isomer, or salt of isomer thereof, whether a controlled substance or not, that has a chemical structure that is similar to fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidnyl] propanamide).”

Comparison to Fentanyl

The USSG Amendments recognizes most fentanyl analogues are “typically about as potent as fentanyl itself.”  The Amendments set a ratio for analogues that is higher than pure fentanyl.

Beginning November 2018, 1 gram of fentanyl analogue is considered equivalent to 10 kilograms of marijuana. (Under the USSG, 1 gram of fentanyl = 2.5 kilograms of marijuana.)

Sentencing Table

The Amendments amend USSG 2D1.1 as follows, with a four-level enhancement of the proposed offense level:

“[i]f the defendant knowingly misrepresented knowingly marketed as another substance any mixture or substance containing fentanyl … or a fentanyl analogue.”

4.  Acceptance of Responsibility (USSG 3E1.1)

When calculating the proposed sentencing range under the Federal Sentencing Guidelines, there can be a reduction of the sentencing if the defendant shows “acceptance of responsibility” for the criminal action for which he or she has been charged.  We discuss how this works under the USSG in “Federal Sentencing Guidelines in Federal Child Pornography Cases.”

In short, under Sentencing Guidelines Section 3E1.1(a), (b), offense levels can be subtracted from the calculation if the defendant clearly demonstrates acceptance of responsibility for his offense.  See, United States Sentencing Guidelines Manual, page 389.

Here is how the 2018 USSG Amendments deal with Acceptance of Responsibility:

 Attempt to Cure Chilling Effect

The Commission acknowledges that the present Sentencing Guidelines may have a “chilling effect” on defendants who opt against making objections to their proposed sentence under the USSG because they are afraid they will “jeopardize their eligibility for a reduction for acceptance of responsibility.”

Courts may have been encouraged to deny reductions after a defendant pled guilty and accepted responsibility for his or her conduct, but failed to successfully challenge the Presentencing Report (PSR) assessment of relevant conduct, according to the Commission.

Additional Language in USSG 3E1.1

Accordingly, the Application Notes to the Guideline have been changed.  Beginning in November 2018, the Sentencing Commission will note in its commentary to this Sentencing Guideline the following:

“A defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility, but the fact that a defendant’s challenge is unsuccessful does not necessarily establish that it was either a false denial or frivolous.”

5 .  Alternatives to Incarceration (5C1.1)(5F1.2)

Of course, every defendant is interested in negotiating a sentence that avoids time behind bars.  Federal plea deals that succeed in an alternative to incarceration are often tremendous criminal defense victories.

To learn the details in one of my recent successes in representing a client who avoided imprisonment even though he seemed destined for many years in a federal institution, read “Probation In A Federal Child Porn Case: Case Study By Defense Attorney Michael Lowe.”

Under the Sentencing Guidelines, the alternatives to incarcerating the accused are found in USSG 5C1.1.

Here is how the 2018 USSG Amendments deal with Alternatives to Incarceration:

Definition Given for Nonviolent First Offender

The USSG Amendments provide the following definition for “nonviolent first offender” as follows:

“[A defendant] with no prior convictions or other comparable judicial dispositions of any kind,” … “who did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense of conviction.”

• Note:  both juvie dispositions and diversionary dispositions are considered prior convictions under this definition.
• Note as well:  the “nonviolence” here refers to the actions of the individual defendant, and not to the offense itself.

Nonviolent First Offenders

The Sentencing Commission adds new commentary for consideration by the courts when sentencing someone who is a first offender who has been found guilty of a nonviolent offense.

The Commentary that will be effective in November 2018 states that the “courts should consider imposing a sentence other than [incarceration]” when the proposed sentencing recommendation falls within the Sentencing Table’s Zone A or Zone B.

For an example of how the Sentencing Table works to calculate a sentencing recommendation, see “Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases.”

Electronic Monitoring in Home Detention

Insofar as home detentions, the Commission has amended the commentary to the courts regarding electronic monitoring of those allowed home detention.

The amendment to the Commentary accompanying USSG 5F1.2 states as follows:

Electronic monitoring is still considered “an appropriate means of surveillance for home detention.”  However, courts should evaluate each case to decide if electronic monitoring of the offender who subject to home detention according to its individual circumstances.  The court must determine on a case by case basis if the home detention should be accompanied by electronic monitoring.

6.  Note to Change in Sentencing Tables

This is not a significant departure in procedure, but it is a big change for those well-acquainted with the Federal Sentencing Guidelines Manual.  There has been a change in vocabulary in the 2018 USSG Amendments.

Beginning in November 2018, “marihuana equivalency” will be known as “converted drug weight” in the Drug Equivalency Tables.

Defending Against the Amendments

As discussed earlier, the Commission’s Chairman defined the goal of these amendments as one “… to balance fairness, justice, fiscal responsibility and public safety.”  Considering these changes, from a defense perspective there are a great number of arguments to be made regarding the fairness of these changes in their application, such as the wide range of weakness or strength in the various synthetic drugs as they are sold on the streets.

Consider fentanyl and its analogues.  As written, these amendments may well result not in “fairness” and “justice” but in inappropriately long sentencing recommendations as well as disproportionate sentencing ranges in PSRs.  For one thing, there is no evidence that increasing the penalties for fentanyl and fentanyl analogues will effectively dampen its demand in the marketplace and curtail its popularity.

It is not wise to increase sentencing guidelines just because the drug has become a media darling and the focus of public scrutiny.

Sentencing in drug cases to be fair must be correlated to the specific case — its dose, its potential for harm.  These guidelines fail to provide proportionality — and it is up the the defense bar to fight zealously for their clients to make sure that their individual cases are given the specific and unique considerations that justice warrants.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Relevant Conduct in The Federal Sentencing Guidelines: Acquittals And Uncharged Conduct.”