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FEDERAL DRUG SENTENCING: DID WASHINGTON FINALLY WAKE UP?

Ask any Tampa Federal Criminal Lawyer how they feel about Federal drug sentencing and I have little doubt the response you receive would be a groan and a look of disgust. Federal drug sentencing, for whatever popular and illusory reason the Federal Sentencing Commission chooses to hang their hat on, has been and is outrageous. For every crime there must necessarily be some kind of punishment otherwise the system is useless and we can cue anarchy. However, when one with little criminal history and no real ties to a cartel or gang takes a shot to make five times his yearly wage for a noble albeit illegal reason and ultimately is sentenced to a 10 year minimum mandatory prison term, have we really achieved anything? Should a drug sentence really be higher than a crime of violence or a sex crime against a minor? It doesn’t pass the smell test but it happens all the time. Title 21 of the Federal Criminal code details minimum mandatory sentences and it has been a leverage point of Federal Prosecutors since its inception.

Not only can a defendant be charged with a violation of Title 21 that calls for a mandatory minimum prison sentence, in certain instances the defendant’s sentence potential or mandatory minimum be increased because of a criminal history to make a minimum mandatory completely exorbitant. If the US Attorney’s office pops your man with a nice little 851 enhancement you are now staring down the barrel of a potential of a 20 year minimum mandatory or mandatory life sentence depending on the number of prior drug felonies he has. If the defendant was facing a 5 year minimum mandatory he is now looking at 10 and if there is no minimum mandatory, his statutory maximum increases. You can run but you can’t hide from the 851… All for one prior drug felony. Granted this enhancement is not automatic but it is wholly discretionary for the Federal Prosecutor. Depending on which Prosecutor is driving the bus, you could be in for a bumpy ass ride. This enhancement isn’t even inclusive of a Career Offender enhancement, and animal that has been criticized as not being based on empirical data by the Supreme Court in Kimbrough v. US, 552 U.S. 85, 109-110 (2007). When one is saddled with both an 851 and career offender enhancement his Federal criminal lawyer will earn a few more gray hairs.

Something had to give and it seems that it might have with Attorney General Holder’s “Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division.” Within AG Holder’s memo there is a shift to a more discretionary policy in charging those accused of drug crimes with those charges mandating a minimum mandatory. Specifically the memo states, “[w]e must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers.” Ah yes, it appears Mr. Holder has heard of The Mayberry Law Firm and our views… As many Federal Defenders and private Federal Criminal Attorneys have opined for some time now, “long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.” If they don’t do that, what’s the point of locking someone up for ever and ever amen so that the tax payer must pay the freight for three hots and a cot? I feel like it’s our grandfathers’ argument that they don’t want their hard earned money to pay for a prisoner to live in prison.

Specifically, AG Holder’s well thought out memorandum states that when Title 21 is applicable to engage a minimum mandatory prison term based on drug quantity and type, “prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria:

• The defendant’s relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

• The defendant is not an organizer, leader, manager or supervisor of others within a criminal organization;

• The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and
• The defendant does not hava significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.”

In short, those horrible sentences for low level drug mules and peons involved in the movement of drugs could go by the wayside in lieu of much less severe penalties should their particular circumstances fit the guidance set forth by this memorandum.

If you’ve been charged with a Federal crime, contact The Mayberry Law Firm for a free evaluation of your case. Nothing is more serious than a Federal charge. Contact our office at 813-444-7435 or at 727-771-3847 and let us help.