Federal Sentencing for Drug Couriers and Drug Mules

At perhaps the lowest rung of the organizational ladder for illegal cartel operations here in Texas and elsewhere is the courier or “mule.”  These are the people who physically transport or move stuff from one point to another.  Maybe it’s across international borders or over state lines.  It may be on foot (i.e., ingested); by car or SUV; in a semi, bus, or plane.  These illegal distribution methods are notoriously inventive.  Read, “Cartels find creative ways to smuggle drugs into the US,”  written by Ali Bradley and Katie Smith and published by NewsNation on March 1, 2023.

Sometimes, the mule carries money.  Think of the Quinton Tarantino movie “Jackie Brown,” based upon the Elmore Leonard novel Rum Punch and considered one of Tarantino’s best films.  Starring Pam Grier as the flight assistant courier, she is moving money for Samuel L. Jackson’s character who deals in illegal weapons.  Without giving away the plot, federal agents get involved and there are all sorts of twists and turns.

Thing is, bad as the prison time faced by Jackie Brown, it was not the same as it would have been if her carry-on contained drugs and not cash. Because couriers, or mules, who transport drugs of any kind are subject to the very serious federal drug crime laws.  They are much more complex and serious than Texas drug charges, coming with the prospect of long, mandatory minimum sentences required by federal statute.

• For more on mandatory sentences, read our discussion in Mandatory Minimum Penalties in Federal Sentencing.

Why Are Federal Drug Arrests So Serious?  The United States Sentencing Guidelines

When someone is arrested in the State of Texas by federal law enforcement, they enter the federal criminal justice system to face charges of violating federal criminal laws.  Texas is an independent system.  If convicted, they will be sentenced to fines and/or imprisonment according to the United States Sentencing Guidelines Manual (“USSG”) as promulgated by the United States Sentencing Commission.

The USSG limit the power of the federal judge to decide the punishment for any defendant coming before the bench for sentencing. This is much different than sentencing before a Texas criminal judge, who will have discretion to decide the appropriate punishment for the accused.  Texas does not have a Sentencing Commission with a state sentencing guideline manual for judges to follow.

For more on how the USSG work, check out the overview provided by the USSC and read our earlier discussions in:

• Loss Amounts in Federal Sentences: Calculating Economic 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.

The Job of Drug Mule or Drug Courier

So, how does someone become a drug mule?  Maybe it is by invitation of a friend or family member.  Sometimes, it is by solicitation.  Social media and online gaming (like Grand Theft Auto) offer lots of opportunities for organizations to find people interested in making some fast cash.  They may or may not realize that the job is moving illegal drugs; some may think they are being paid to haul consumer goods like electronics.  See, “How Mexico’s Real Life Cartels Recruit Drug Mules On Grand Theft Auto Online,” written by Thomas Brewster and published by Forbes on January 24, 2022.

And then, there are those that have no idea they have become a part of the drug trafficking distribution chain.  They are unaware they are transporting anything for anyone.  These people may be shocked to find drugs hidden in their car or truck or backpack, where someone has placed the product surreptitiously.  They are called “blind mules.“

Drug Mules Face Federal Charges Under Several Federal Statutes

When arrested for drug smuggling, a drug mule who allegedly couriered illegal substances in violation of federal law may be facing charges under several different federal statutes.  These may or may not include allegations of drug trafficking.

Drug trafficking is a different crime from drug smuggling or drug possession.

Under the federal statutes, there are two different charges to be faced if someone is arrested for transporting illegal drugs.  Drug smuggling and drug trafficking are two different crimes.

To be convicted of drug trafficking, the AUSA must prove the elements of 21 U.S.C. §841, where there is sufficient evidence to prove up manufacturing, dispensing, or distributing a controlled substance by the accused.

Drug possession is also a federal criminal law under 21 U.S.C. §844.  These are illegal drugs the accused had for personal use and brings with it a different and lesser range of punishment than trafficking charges.

Federal Drug Smuggling Criminal Laws

Drug smuggling is outlawed by several different federal statutes, among them the following.  The AUSA may file charges based upon any one or more of these laws.  If there is evidence to support it, the AUSA may also seek a conviction for drug trafficking or drug possession under the above laws as well.

18 USC §545

Drug mules or couriers are considered to be drug smugglers by federal law in violation of 18 U.S.C. §545.  See, e.g., United States v. Bradley, No. 3: 16-cr-50008 (W.D. Va. Jan. 5, 2022).

The federal smuggling law provides for 20 years’ incarceration upon conviction, and states:

Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces or attempts to smuggle or clandestinely introduce into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper; or 

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law— 

Shall be fined under this title or imprisoned not more than 20 years, or both. 

Proof of defendant’s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section. 

Merchandise introduced into the United States in violation of this section, or the value thereof, to be recovered from any person described in the first or second paragraph of this section, shall be forfeited to the United States.

The term “United States”, as used in this section, shall not include the Virgin Islands, American Samoa, Wake Island, Midway Islands, Kingman Reef, Johnston Island, or Guam.

Of course, most AUSAs will not move forward in prosecuting a drug mule on this charge alone.  They will look at the law enforcement investigation for facts to support adding lots of additional charges often connected with federal drug smuggling crimes.

Other Federal Drug Smuggling Laws

There are several other potential criminal smuggling charges a drug mule can face in federal court.  They include:

• 21 U.S.C. § 825: prohibits anyone from bringing into the country anything that is not in its proper container with proper labelling on that container, and this applies both to controlled substances and legally prescribed drugs;
• 21 U.S.C. § 952: outlaws the importation of any (1) Schedule I or II controlled substance and any (2) Schedule III, IV, or V narcotics into the United States; and
• 21 U.S.C. § 955: makes it a crime to bring any controlled substance onto a vessel or on any type of aircraft.

Penalties for Drug Mules Under Federal Drug Smuggling Laws

For those convicted of drug smuggling, the statutory punishment is found in 21 U.S.C. §960. Under this federal statute, the range of punishment depends not only upon the drug(s) found to have been smuggled by the defendant (the controlled substance(s)) but how much of that drug(s) was being smuggled.

Importantly, 21 U.S.C. §960 is specific:  there is no eligibility for parole for those sentenced pursuant to its provisions.  Drug mules convicted in federal court must complete the entire term of their sentence, which means many years behind bars (5 years at the minimum).

Drug Mules Can Face Enhanced Federal Smuggling Charges: 21 U.S.C. §960

For any drug courier facing a second smuggling conviction, the sentence goes up to a 10-year minimum.  If the facts of the case provide evidence that death or serious bodily injury of an individual was caused by the smuggled illegal substance, then another federal statute allows for an enhancement of the punishment.  Under 21 U.S.C. §960, the mule can be sentenced to life imprisonment and a $10 Million fine.

Drug Mule Punishment: Application of the USSG in Federal Sentencing

Drug mules who are convicted on federal drug smuggling charges will be brought before the federal judge for punishment at a sentencing hearing where both the AUSA and the defense attorney may present evidence.  The judge’s considerations will include a Presentencing Investigation Report (“PSR”) as prepared by the probation officer.  Fed. R. Crim. P. 32.

The PSR will have a proposed sentencing range based upon a calculation using the USSG.  The base offense level, any enhancements or adjustments, and criminal history will all be considered.  These may not be accurate and must be independently evaluated by the defense.  For example, in the above-referenced Bradley case, the defense disputed the PSR based upon alleged errors in the probation officer’s USSG calculations.

Example: The Bradley USSG Drug Smuggling Calculations

This was after the defendant, Jason Bradley, pled guilty to (1) one count of smuggling goods into the United States in violation of 18 U.S.C. § 545 and (2) one count of entry of goods by means of false statement in violation of 18 U.S.C. § 542.

The drug courier argued that the PSR used USSG § 2D1.1 (for unlawful manufacturing, importing, exporting, or trafficking of controlled substances, i.e., drug trafficking) instead of the correct USSG §2T3.1 (for drug smuggling) to determine the recommendation’s base offense level.  Other points of error in the PSR were that it was wrong to include (1) a two-level enhancement because importation of controlled substances and (2) a two-level adjustment because of the accused being a leader in the underlying criminal organization.

The district court found that the PSR was correct and affirmed the sentencing calculations pursuant to the application of evidence to the USSG as follows (quoting in part):

2T3.1(c) refers us to § 2D1.1 for smuggling violations, like this one, involving controlled substances. Section 2T3.1(c) instructs that “[i]f the offense involves a contraband item covered by another offense guideline, apply that offense guideline if the resulting offense level is greater than that determined above.” The Introductory Commentary preceding § 2T3.1 provides insight into the purpose behind this cross-reference….

Paragraph 24 of the PSR lays out the offense conduct that establishes Bradley’s role as an organizer of the drug conspiracy. According to the PSR, Bradley “directed co-conspirators to falsify electronic transfers of money to avoid suspicion”, “encouraged the use of `burner phones'”, “engaged in research about the legality of certain chemicals and sent emails to his co-conspirators about his findings” and “helped organize trips to China for co-conspirators to obtain synthetic drugs to send back to the United States.” These facts are undisputed, and the Court finds that they establish that Bradley “controlled others” and thus was an organizer of the criminal activity within the meaning of § 3B1.1(c)….

Finally, one can violate 18 U.S.C. § 545 without smuggling drugs, so it is untrue that an enhancement for importation of a controlled substance would apply to every § 545 conviction. Regardless, “there is a presumption that double counting is proper where not expressly prohibited by the guidelines.” United States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010).

Criminal Defenses for Drug Mules or Couriers in Federal Court

When someone is arrested and charged by federal law enforcement for drug smuggling, that alleged drug mule or drug courier is beginning a long fight through the federal criminal justice system.  Not only will thing likes the possibility of regaining freedom through federal bail procedures need to be addressed, but the defense attorney will need to do a thorough, independent investigation into the circumstances to determine possible defenses to the charges.

• For more on federal bail, read: Bail after Federal Arrest in Texas and The Bail Reform Act of 1984.

These drug smuggling defense arguments for the alleged drug mule may include:

1.      Challenges to the AUSA’s Case

This will include a legal determination of each element of the criminal laws the government must prove beyond a reasonable doubt in order to obtain a conviction.  There must be admissible, authenticated evidence the accused really did something to bring a controlled substance into the country, for instance.  A blind mule lacks the intent or knowledge to support a federal drug smuggling charge.

2.      Challenges to Law Enforcement’s Search and Seizure

Constitutional protections exist for any search by federal law enforcement, of people or property, as well as any subsequent seizure of items that are later used by the AUSA to support the government’s criminal charges.  If there has been an improper or illegal search or seizure, then the defense may be able to successfully move to suppress that evidence.  This may be enough to get the case dismissed, or to negotiate a plea deal on lesser charges.

• For more on search and seizure, read: Challenging the Search Warrant in Texas: Illegal Search and Seizure.

3.      Safety Valve or Informant

In some defense matters, the accused may be eligible to avoid drug crime statute mandatory minimum sentences pursuant to the First Step Act.  See, 18 U.S.C. § 3553(f); USSG §5C1.2; and read The First Step Act and Texas Criminal Defense in 2019: Part 1 of 2 and The First Step Act and Texas Criminal Defense in 2019: Part 2 of 2.

Another possible defense argument for a lesser sentence than the mandatory minimum for a drug courier or drug mule is to have the accused agree to provide “substantial assistance” to the federal government.  See, 18 U.S.C. § 3553(e); USSG §5K1.1; and read Policy Changes in Charges, Pleas, and Sentencing for Federal Drug Crime Prosecutions: New AG Garland DOJ Directive.

4.      Consideration of Federal Policies Regarding Prosecution of Low-Level Drug Mules

Fairness can also be argued by the defense in plea negotiations.  Today, it is understood that across the country, and particularly in border states like Texas and Arizona, there has been a steady rise in the number of federal prosecutions of drug couriers with long prison sentences for these drug mules.  This, despite how young they may be or how little their participation or power may be in the overall drug trafficking operations.

This disproportionate sentencing is an injustice.  Mandatory sentencing for drug mules in federal court all too often is much, much greater than their guilt.  For more, read Johnson, Melissa. “Reversing the Evils of Federal Mandatory Minimum Sentences: Is Clemency the Only Answer?.” Journal of Civil Rights and Economic Development 33.3 (2021): 4.

As explained by the American Criminal Law Review:

…[P]ut in practice in the 1980s, mandatory minimum punishments are the main source of trial penalties for drug couriers. After trial conviction, even defendants with clean records charged with offenses requiring these penalties come before judges who largely have no sentencing discretion but to impose five or ten years, depending on the drug amount. Facing such punishment, a vast majority of couriers accept plea offers. Mandatory minimum punishments make trials rare, even for cases of actual innocence. Only three percent of federal drug defendants go to trial.

• • Goncalves Jr, Walter I. “” How Much Time Am I Looking at?”: Plea Bargains, Harsh Punishments, and Low Trial Rates in Southwest Border Districts.”  Crim. L. Rev.59 (2022): 293, 315.

For anyone who is facing federal charges for drug smuggling in Texas, the need for an experienced and zealous criminal defense advocate is vital.  All too often, drug couriers are facing spending a considerable amount of their lifetimes behind bars, if not life imprisonment, and yet they agree to a burdensome plea deal.  These matters deserve a determined defense.

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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?”