Mandatory Minimum Penalties in Federal Sentencing

Congress Decides Your Prison Sentence with Certain Federal Crimes

Our modern system of mandatory minimum sentencing in federal cases arguably began with the passage of the Anti-Drug Abuse Act of 1986.  Congress enthusiastically targeted drug “kingpins” for explicit punishment, mandating that the federal judge must sentence these defendants, upon conviction, to imprisonment in a federal facility for at least 10 years (first offense) and 20 years (second offense). Middle management in the drug organizations was to receive mandatory minimum sentences as well:  5 years (first offense) and 10 years (second offense).

Two years later, Congress expanded the reach of the Drug Abuse Act of 1986 to include those convicted of conspiracy in the drug operations.  And Congress’ Mandatory Minimum Sentencing Train was off and running down the federal tracks, until we have the convoluted and controversial set of mandatory minimum sentences facing federal defendants today.

This isn’t new policy.  As the United States Sentencing Commission notes in its Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017), Congress has mandated specific punishments within criminal laws almost since our nation began.  In the Crimes Act of 1790, seven offenses were defined with a corresponding penalty of death; these included the crimes of treason, murder, and rescuing someone who had been convicted of a capital crime.  Overview, page 2, footnote 1.

What are Mandatory Minimum Penalties?

What does this mean for anyone arrested and charged on federal criminal law violations?  If you are facing conviction on a federal charge, then it’s important to understand which charges have leeway insofar as prosecutorial negotiation (plea bargaining) and judicial discretion (sentencing hearings) and which do not.

If you come before the federal bench for sentencing on a charge that corresponds to a mandatory minimum established by Congress, then the legislators have decided your punishment. There’s no flexibility in sentencing here.  You do the time, period.  (There are exceptions, as discussed below.)

Mandatory minimum sentences are defined by federal statutes passed by Congress.  These laws (1) define federal crimes and (2) include automatic prison terms for their violation.

Common Mandatory Minimum Felonies

Today, according to US Sentencing Commission research, most federal convictions with mandatory minimum sentences correspond to charges involving:

• drugs (Controlled Substances Act violations);
• firearms;
• identity theft; and
• child sex offenses (child porn or sexual contact with a minor).

Drug Crimes

Those accused of drug trafficking are most likely to face a mandatory minimum sentence today.  Nationally, drug trafficking charges are involved with approximately 67% (two-thirds) of mandatory minimum sentences being imposed.

The War on Drugs explains this high percentage rate among those accused of federal drug charges.  However, for any defendant arrested on federal crimes based upon child porn and child sexual exploitation, the likelihood of facing a mandatory minimum sentence is high with growing Congressional focus on fighting child porn (especially on the internet).

Child Porn

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act was passed in 2003.  It sets new mandatory minimum sentences for child sexual abuse and child pornography crimes.  Under the PROTECT Act, 18 U.S.C. § 2252(a)(3)(B), the mandatory minimum sentence for producing child pornography is 15 years for first-time offenders, 25 years of imprisonment for repeat child exploitation offenders, and 35 years for offenders with more than two prior child exploitation convictions.

Note: challenges to the constitutionality of the PROTECT Act failed. US v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008).  See, “Supreme Court Upholds Child Pornography Law,” written by Linda Greenhouse and published in the New York Times on May 20, 2008.

Firearms

Congress focuses upon the possession or use of a variety of firearms “during, in relation to, or in furtherance of a crime” with mandatory minimum sentencing defined in 18 U.S.C. § 924.  The crimes here involve either those defined as “crimes of violence” or drug trafficking.

Tricky here for the defendant is the risk that the prosecutor will “stack” the mandatory minimum sentences, charging multiple defined in 18 U.S.C. § 924(c)  in the same proceeding, which will force the firearms sentences to be served consecutively to any sentences imposed for the underlying offenses and other section 924(c) offenses.

The Supreme Court of the United States has approved prosecutorial stacking of firearms violations.  See Deal v. United States, 508 U.S. 129, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993).

Identity Theft

Identity theft is another growing area of criminal activity that is of rising concern for the federal government.  In 2004, Congress passed the Identity Theft Penalty Enhancement Act, which imposes a 2 year mandatory minimum sentence on charges of aggravated identity theft.

Specifically, a two year prison sentence must be imposed consecutively to any other prison term when someone “during and in relation to…” committing felonies including theft, false statements, fraud, or offenses related to nationality and citizenship or immigration (like forged passports or visas).

The Act also forbids the judge to reduce the sentence for the underlying felony (theft, etc.) and again allows stacking of the violations.

Mandatory Minimum Sentencing Realities

There has long been an outcry against Congress unilaterally setting up mandatory punishments for all defendants and ignoring the realities that may impact the particular case.  Judges may want to use their discretion to impose a sentence that is more equitable and just with the full agreement of both prosecution and defense, but they are unable to do so.  See, e.g., Lowenthal, Gary T. “Mandatory sentencing laws: Undermining the effectiveness of determinate sentencing reform.” Cal. L. Rev. 81 (1993): 61.

In fact, the injustice of these mandatory sentences defined by the legislature and not by the judiciary has long been the subject of controversy and debate.  Read, for example, the American Bar Association Standard 18-1.2, where the ABA position is explained regarding the Legislative Function in Sentencing and specifically its Standard 18-3.21, which states:

(a) The legislature should authorize sentence of an individual offender to a term of total confinement.

(b) A legislature should not prescribe a minimum term of total confinement for any offense.

Nevertheless, these statutory sentences are imposed in federal courts all the time today.   This is especially true for those who are convicted of federal drug crimes. From the United States Sentencing Commission, we know the tremendous impact that these mandatory sentences have on individuals arrested and charged in the federal system.

Consider the following facts for fiscal year 2017:

1. Over 60 percent (62.7%) of offenders convicted of an offense carrying a mandatory minimum penalty did not receive relief from the penalty and were subject to the mandatory minimum penalty at sentencing (13.7% of all federal offenders).
2. Drug trafficking offenses accounted for almost two-thirds (67.8%) of the offenses carrying a mandatory minimum penalty, followed by fraud (6.5%), child pornography (6.0%), and sexual abuse (5.5%).
3. Almost 40 percent (37.3%) of offenders convicted of an offense carrying a mandatory minimum were relieved of the mandatory minimum penalty because:

• 5% received relief solely by providing the government with substantial assistance;
• 3% received relief solely through the statutory safety valve provision; and
• 5% received relief through both the statutory safety valve provision and by providing substantial assistance to the government.

Federal Crimes with Mandatory Minimum Sentences

Not every federal defendant who faces conviction on a federal charge must face the challenge of dealing with a congressional sentencing decision already made in his case.  Many do, because there are so many ways that the federal laws can work to impose these mandatory minimum penalties.

Three Ways a Minimum Sentence Gets Activated Under Federal Law

Anyone convicted of a federal crime may be sentenced according to a mandatory minimum penalty defined by Congress if his case involves:

• An offense that details the mandatory minimum (the crime carrying the mandatory sentence);
• The charge contains a reference to another underlying offense which carries one; or
• Particulars regarding the offender’s criminal history capture a minimum sentencing requirement.

1.  Defined in the Offense

In these situations, the mandatory minimum sentence applies pursuant to the language within the law that defines the offense.  As an example, if someone is arrested on federal meth charges, then 21 U.S.C. § 841(a),(b)(1) states that any conviction for trafficking 50+ grams or more of methamphetamine “shall be sentenced to a term of imprisonment which may not be less than 10 years …[n]otwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph.”

2.  Triggering Offense

Circumstances surrounding the case may incorporate a mandatory minimum penalty.  One example here is the defendant’s possession or use of a firearm in connection with an underlying offense.  Under 18 U.S.C. § 924(c), “… [unless] a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime: (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. (The sentence becomes harsher if certain kinds of firearms are involved, like machine guns.) “

3.  Criminal History

The defendant’s past may come back to haunt him (or her) resulting in a mandatory minimum sentence.  For instance, under 18 U.S.C. § 924(e),  there is a mandatory minimum penalty of 15 years if a person “…has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be … imprisoned not less than fifteen years….”

Exceptions:  Safety Valve and Cooperating with the Government

For those facing mandatory minimum penalties as defined by Congress, the statutes leave little room for negotiation; they even include specific language instructing the judge that probation and parole are not allowed.  (See the full language of 21 U.S.C. § 841(a),(b)(1) as an example here.)

However, defendants with experienced and aggressive defense counsel will be made aware of two exceptions to the imposition of the mandatory minimum sentences.  These are known as (1) the safety valve and (2) cooperation.

1.  Safety Valve Exception

The “safety valve” exception works in federal drug cases.  It is not available in other kinds of federal charges with mandatory minimums.  See 18 U.S.C. § 3553(f)(1)-(5).

The Safety Value Exception consists of a test with five (5) hurdles for the defendant to jump.  As described in §5C1.2 of the United States Sentencing Manual, these are:

(1)       the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines before application of subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category);

(2)       the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3)       the offense did not result in death or serious bodily injury to any person;

(4)       the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and

(5)       not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

 If the defendant can show the trial judge at the sentencing hearing that he passes all five hurdles, then the judge may impose a sentence that is lower than the mandatory minimum sentence defined in the charge.  (The judge isn’t required to impose a below mandatory minimum sentence.)

Where does the judge go to figure out this lower sentence?  He references the United States Sentencing Guidelines.  Under Section 5C1.2 of the Federal Sentencing Guidelines Manual, application of the “safety valve” results in a reduction of two (2) levels.

For details on how the Sentencing Guidelines (e.g., levels) work in a federal drug case, read our discussion in “Federal Sentencing Guidelines: Conspiracy To Distribute Controlled Substance Cases.”

2.  Cooperation

The federal government encourages defendants to cooperate with its efforts to enforce the federal laws.  Accordingly, Congress has enacted statutes that work to motivate those accused of serious felony crimes to help law enforcement in their efforts.

This forms the second exception to mandatory minimums and it applies to all federal offenses (not just drug crimes). If the accused cooperates with the United States Attorney General’s Office, then he may not have to serve all that time that is defined by Congress in the mandatory minimum sentence.

This can be a difficult road for the defendant in many ways.  Not the least of which is that his defense attorney cannot argue the cooperation exception to the judge at the sentencing hearing. 

This exception can only be requested to apply to the accused’s sentencing by the prosecutor.  The judge will decide whether or not to apply the cooperation exception to the mandatory sentence defined in the federal statute.

This motion by the prosecutor can be made pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure after sentencing.  The prosecution can also file this request before the judge decides sentencing pursuant to Section 3553(e) of the Anti-Drug Abuse Act of 1986, as explained in the Sentencing Commission’s commentary to USSG 5k1.1:

“A defendant’s assistance to authorities in the investigation of criminal activities has been recognized in practice and by statute as a mitigating sentencing factor. The nature, extent, and significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court on an individual basis. Latitude is, therefore, afforded the sentencing judge to reduce a sentence based upon variable relevant factors….The sentencing judge must, however, state the reasons for reducing a sentence under this section. 18 U.S.C. § 3553(c). The court may elect to provide its reasons to the defendant in camera and in writing under seal for the safety of the defendant or to avoid disclosure of an ongoing investigation.”

 Other Potential Sentence Reductions: Bureau of Prisons’ Discretion

There are ways to have a sentence reduced with the individual not having to serve the full sentence after the sentencing hearing as well.  These are found in laws passed Congress allowing for discretionary reductions by the Bureau of Prisons.  They include the following:

1.  Boot Camp (Shock Incarceration)

Pursuant to 18 U.S.C. 4046, Congress empowers the Bureau of Prisons with the ability to place in a shock incarceration program any person who is sentenced to a term of imprisonment of more than 12, but not more than 30, months, for a time period not to exceed 6 months if:

• The person consents to that placement;
• They agree to adhere to a highly regimented schedule that provides the strict discipline, physical training, hard labor, drill, and ceremony characteristic of military basic training; and
• They participate in appropriate job training and educational programs (including literacy programs) and drug, alcohol, and other counseling programs.

Additionally, they must:

• be U.S. or naturalized citizens;
• be in prison for the first time or with only minor prior incarceration;
• have a minimum custody security classification;
• be in good health;
• as a general rule, be under the age of 35 years; and
• no detainers or pending charges.

If the Director of the Bureau of Prisons decides the inmate has successfully completed the required period of shock incarceration, “boot camp” can reduce prison time for someone convicted and serving time by one year or more.

2.  Good Time

Under 18 U.S.C. 3624, a prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner’s term of imprisonment, less any time credited toward the service of the prisoner’s sentence for “satisfactory behavior.”  This is called “good time credit.”

Only prisoners serving a term of imprisonment of more than 1 year  (excluding life sentences) may receive credit toward the service of the prisoner’s sentence as a “good time” reduction.

Satisfactory behavior for “good time” reduction includes:

• Full credit if the prisoner has displayed exemplary compliance with institutional disciplinary regulations during the year, as determined by the Bureau of Prisons;
• No credit or such lesser credit as the Bureau determines to be appropriate if there has not been complete exemplary compliance; and
• Special consideration is given for any prisoner who has earned, or is making satisfactory progress toward earning, a high school diploma or an equivalent degree during the time period.

While 18 U.S.C. 3624 provides that 54 days per year can be deducted from sentence, from a criminal defense perspective the reality is that the Bureau of Prisons grants “good time” reductions of 47 days per year (or around 13%).

3.  Drug Rehabilitation

For some drug crime defendants, there is another possible vehicle for sentence reduction by the Bureau of Prisons provided by Congress in 18 U.S.C. §3621(e).   Congress offers this sentence reduction as an “incentive for prisoners’ successful completion” of a treatment program to help them with their addiction issues.

Here, the defendant’s sentence can be reduced by up to one (1) year if:

• He volunteers to participate in drug rehab;
• The defendant’s substance abuse problem is properly authenticated in his record;
• He was convicted of a non-violence offense; and
• There are no detainers or INS holds.

4.  Halfway House (Prerelease Custody)

In 18 U.S.C. 3624(c), Congress instructs the Bureau of Prisons to assist the prisoner in his reentry into society by allowing him to serve up to the last 12 months of his sentence in “prerelease custody.”

The Bureau is to allow the prisoner to live “…under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.”

This may include a community correctional facility or home confinement.  Prerelease custody covers either the shorter of either: (a) 10% of the term of imprisonment of that prisoner, or (b) six (6) months.

Aggressive Criminal Defense in Federal Cases Facing Mandatory Sentencing

Obviously, criminal defense lawyers look for ways to argue around the imposition of mandatory minimum sentences.  One of the key components to an aggressive defense here is negotiation with the federal prosecutor on the charges that the defendant faces.

However, things are more difficult insofar as plea negotiations today than they have been in years past.  This is because of the stance taken by the current Attorney General for the United States, Jeff Sessions, and the instructions he has given to the Offices of the Attorney General throughout the federal districts.

In May 2017, Attorney General Sessions issued a formal memorandum giving his directive to all federal prosecutors, which is within his purview as the top federal prosecutor in the federal government.

Now, prosecutors are to go for the most serious charges they can find, looking for the harshest sentences they can put together in their case.  If they want to agree in negotiation to a different (lesser) sentence, then they are warned to “carefully consider” this decision.  Furthermore, they are to have that decision for a lesser sentence okayed by their boss and then they have to document all their reasons for deviating from the harshest possible sentence in the file. 

Specifically, Sessions instructs all federal prosecutors (emphasis added):

1. First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. …. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences. There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted. In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file .

2. Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file. Any inconsistent previous policy of the Department of Justice relating to these matters is rescinded, effective today.

For more on this change in Department of Justice policy from a criminal defense perspective, read our discussion in “New 2017 Federal Drug Policy From Attorney General Jeff Sessions.”

This change in policy does not mean that criminal defense lawyers cannot negotiate significant sentencing reductions for their clients.  It does mean that mandatory minimum sentencing, despite its controversy, is more powerful than it has been in a decade. 

Accordingly, anyone believing they are being investigated for a federal offense is wise to obtain experienced federal defense counsel 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,” Pre-Arrest Criminal Investigations.”