U.S. Sentencing Commission Proposes 2-Level Reduction to Drug Trafficking Sentences

In keeping with the theme from 2013 that the mandatory minimum sentences impose harsher penalties than necessary to serve the purposes of sentencing, the U.S. Sentencing Commission voted to seek comment on a proposed amendment to lower the base offense levels in the Drug Quantity Table by two levels across the board.  In its news release, Judge Patti B. Saris, Chair of the Commission, stated that the proposal reflects the Commission’s “priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety.”  Judge Saris described the proposed approach as “modest” and stated that “[t]he real solution rests with Congress.”  The Commission continues to “support efforts there to reduce mandatory minimum penalties, consistent with [the Commission’s] recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.

The comment period on the proposed amendments runs through mid-March 2014, and a public hearing is scheduled for March 13, 2014, in Washington, D.C.  More information is available at www.ussc.gov, including a reader-friendly version of the amendments and a link to the Federal Register notice.

Other proposed amendments address U.S.S.G. §§ 1B1.10, 2L1.1, 5D1.2, 5G1.3, the Violence Against Women Reauthorization Act of 2013, and relevant conduct for felon in possession.  The § 2L1.1 amendment would add the following language to the description of the reckless endangerment enhancement: “guiding persons through, or abandoning persons in, dangerous terrain without adequate food, water, clothing, or protection from the elements.”

A Few Kilos Short of 10-Year Mandatory Minimum Sentence, but Conspiracy Conviction Stands

United States v. Daniels, No. 12-30413 (5th Cir. July 17, 2013) (King, Davis, Elrod)

A group accused of drug distribution appealed their convictions and sentences for conspiracy to distribute and to possess with intent to distribute five kilos or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). The defendants argued that evidence provided at trial was insufficient to support the jury’s verdict regarding drug quantity. Since only 1.535 kilograms were offered as physical evidence to the jury, the panel agreed that evidence did not support a finding that the conspiracy involved five kilograms or more. The Government’s failure to prove the five kilo quantity did not invalidate the conspiracy convictions but did call for resentencing (resentencing under 21 U.S.C. § 841 (b)(1)(B)(ii) was deemed appropriate in this case). The panel also vacated Daniels’ sentence on unlawful use of a communication facility and remanded to the district court for resentencing.

On 9/5/2013, the panel decided pursuant to a petition for rehearing by several defendants that those defendants’ sentences on the substantive counts would also be vacated and the case remanded for resentencing since the “Guidelines range calculations were driven by the conspiracy’s non-vacated 5 kilogram finding.”

Thanks to FPD Intern Matthew Gonzalez for this blog post.

AG Mandatory Minimum Policy Does Not Confer Benefits to Defendants Already Charged and Convicted

United States v. Barnes, No. 12-3562 (Sept. 17, 2013) (Davis, Jones, Benavides) (per curiam)

Barnes pleaded to possession with intent to distribute 50 grams of methamphetamine and was sentenced to the statutory mandatory minimum sentence of 120 months of imprisonment.  Barnes argued in his appeal that the Attorney General’s memorandum dated August 12, 2013, affords him sentencing relief.  The panel rejected that argument because the memo was issued after Barnes was charged and convicted, and because it expressly notes that the “policy set forth herein is not intended to create or confer any rights privileges, or benefits in any matter, case, or proceeding.”

The panel also rejected Barnes’ argument that the Government breached the plea agreement by failing to file a § 5K1.1 motion for downward departure.  The plea agreement left any such filing to the Government’s discretion, and Barnes agreed at the plea hearing that no promises existed outside the plea agreement.

As a side note, the Attorney General also issued a memorandum on August 29, 2013, detailing how the new mandatory minimum prosecution policy applies to pending cases.  The memo encourages prosecutors, in their discretion, to apply the policy to defendants who have pled guilty but have not been sentenced.  The memo also specifically states that the policy is not retroactive to defendants already sentenced.

Sequestration Silver Lining? Holder Refines Charging Policy for Mandatory Minimums

Attorney General Eric Holder issued a memo today to U.S. Attorneys refining the charging policy for mandatory minimum cases in recognition that "[w]e must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers"; "[l]ong sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation"; and "rising prison costs have resulted in reduced spending on criminal justice initiatives . . . ."
While prosecutors must still evaluate whether a defendant is eligible for any statutory mandatory minimum statute or enhancement, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets the following criteria:

1) conduct does not involve violence, possession of a weapon, trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

2) not organizer, leader, manager or supervisor of others;

3) no significant ties to large-scale drug trafficking organizations, gangs, or cartels; and

4) no significant criminal history (defined as normally meaning three or more criminal history points)

The memo states that, if the prosecutor does not have enough information regarding whether defendant meets these criteria, the prosecutor can file charges involving mandatory minimum statutes. Later, to avoid the mandatory minimum, the prosecutor could ask the grand jury to supersede the indictment, the defendant could plead guilty to a lesser included offense, or the defendant could waive indictment and plead guilty to a superseding information.

This policy, though, won’t change the quantity that will be the base of the Sentencing Guidelines calculation.

The memo also applies similar criteria to deciding whether to file an information pursuant to 21 U.S.C. § 851 for a recidivist enhancement.

In an NPR interview, Holder commented that he thinks "there are too many people in jail for too long, and for not necessarily good reasons." He also supports legislative efforts to change mandatory minimum laws, and the Senate Judiciary Committee will hold a hearing on mandatory minimum laws next month.

Mandatory Minimum at Original Sentencing Applies to Modification Hearing Notwithstanding Dorsey

United States v. Kelly, No. 12-30936 (May 13, 2013) (Jones, Dennis, Haynes)

The panel affirmed that Kelly was subject to the 10-year mandatory minimum in place at the time of his original sentencing in 2004, not the 5-year mandatory minimum in place at the time of his modification hearing pursuant to 18 U.S.C. § 3582(c)(2) hearing. The panel found that Dorsey v. United States, 132 S. Ct. 2321 (2012), did not change precedent regarding § 3582(c)(2) hearings. Since a modification hearing pursuant to § 3582(c)(2) is not an original sentencing hearing, the mandatory minimum that existed at the time of the original sentencing still applies.

In 2004, Kelly pleaded guilty to possession with intent to distribute 50 grams or more of cocaine base and possession of a firearm during a drug-trafficking offense. He was sentenced to 121 months in prison. The Fair Sentencing Act ("FSA") of 2010 changed the statutory minimum for 50 grams or more of cocaine from 10 years to 5 years. Kelly filed a motion to reduce pursuant to § 3582(c)(2) based on Amendment 750 to the U.S. Sentencing Guidelines, which lowered the base offense levels for crack cocaine offenses in conformity with the FSA. The district court modified the sentence to 120 months after determining that it could not reduce the sentence further due to the mandatory minimum in effect at the time of his original sentencing. The panel affirmed.

Downward Departure to Cat I for Overrepresented Criminal History Does Not Make Defendant Safety-Valve Eligible

United States v. Jasso, No. 10-40203 (5th Cir. Feb. 17, 2011) (Garza, Stewart, Haynes)

Let's say you're facing a mandatory minimum, but you're ineligible for safety valve relief because you've got more than one criminal history point.  What if you persuade the district court that your criminal history category is overrepresents the seriousness of your criminal history, and you get a departure to category I under guideline §4A1.3?  Will that make you safety-valve eligible?

No.  The safety valve criteria—including the no-more-than-one-point limitation—are found in both a guideline (U.S.S.G. §5C1.2(a)) and a statute (18 U.S.C. § 3553(f)).  In 2003, the guideline was amended "to require . . . that the defendant not have more than one criminal history point 'as determined under the sentencing guidelines before application of subsection of 4A1.3.”  And prior to that time, courts had interpreted the statute to have the same restriction.

What about Booker?  Didn't it render § 3553(f) advisory? "Although this is an issue of first impression in this circuit, we note that every court of appeals that has addressed this argument has rejected it. . . . We join our sister circuits in holding that Booker did not impair or render advisory § 3553(f)(1)’s requirement that a defendant 'not have more than 1 criminal history point' as a prerequisite to safety valve relief."

One last shot:

Jasso argues alternatively that the 2003 amendment to U.S.S.G. § 5C1.2(a)(1), which added the words “before application of subsection (b) of § 4A1.3,” constituted an improper delegation by Congress of its rule-making authority to the United States Sentencing Commission. This argument is frivolous. The constitutionality of the Guidelines, and the Commission’s authority to promulgate them, is beyond cavil. See Mistretta v. United States, 488 U.S. 361 (1989); accord Booker, 543 U.S. at 242 (“Our holding today does not call into question any aspect of our decision in Mistretta.”). We do not find that the 2003 amendment to § 5C1.2(a)(1) falls outside the Commission’s authority or violates the nondelegation doctrine.

Fives Reiterate That District Court May Not Impose Sentence Below Statutory Minimum, Absent Substantial Assistance Motion or Safety Valve

United States v. Montes, No. 08-10932 (5th Cir. Mar. 26, 2010) (Reavley, Davis, Stewart)

That's what the court held in United States v. Krumnow, and that's what it holds here:

In United States v. Krumnow, 476 F.3d 294, 295-98 (5th Cir. 2007), we held that district courts could impose a sentence of imprisonment below a statutory minimum only if: (1) the government so moves pursuant to 18 U.S.C. § 3553(e), asserting the defendant’s substantial assistance to the government; or (2) the defendant meets the “safety valve” criteria set forth in 18 U.S.C. § 3553(f). Otherwise, post-Booker sentencing courts lack discretion to depart below relevant statutory minimums. Id. at 297.

Montes does not contend otherwise. Instead, he argues that United States v. James, 468 F.3d 245 (5th Cir. 2007) gave the district court the discretion to depart below the mandatory minimum sentence. In James, this court opined that “[t]here is . . . no statutory provision or jurisprudential holding that would prohibit a court from departing below the section 924(c)(1) minimum if the court felt that such a sentence was appropriate.” Id. at 248. This court’s holding in Krumnow, however, forecloses any interpretation of James’s language that would imbue district courts with discretion to depart below the mandatory minimum absent a substantial assistance motion under 18 U.S.C. § 3553(e) or application of the 18 U.S.C. § 3553(f) safety valve, both of which are not present in the instance case. In Krumnow, this court clarified its ruling in James and expressly held that the language upon which Montes now relies was “simply either subsumed in the analysis for why the § 924(c) sentence may be reduced if the Government requests it or is dictum. Restated, this statement [the one upon which Montes now relies] in James is not its holding.” Krumnow, 476 F.3d at 297-98 (emphasis in original and some citations omitted). Thus, the district court could not depart below the sentences it actually imposed for the section 924(c)convictions.

Montes's sentence, in case you're wondering, was 4,705 months' imprisonment.