Is There Some More Real Change Going to Happen Out There?

January 28, 2014
By Hanging Out with Carl Gunn


  • Amendments significantly reducing both the drug guidelines and the statutory mandatory minimums are presently being considered by the Sentencing Commission and Congress.
  • An Attorney General memorandum issued in August directs prosecutors not to charge mandatory minimum triggering quantities in cases where they aren’t appropriate and provides guidelines for making that determination.
  • Use the Attorney General’s memorandum in negotiations and the proposed guideline and statutory amendments to make sentencing variance arguments, or, in the alternative, slow your cases down until the amendments become effective.


I thought I’d share some information about developments in drug sentencing law – which many of you may have already heard about – that give at least a little cause for hope. It’s on all three government branch fronts – judicial (at least if you consider the Sentencing Commission judicial), congressional, and executive. And before you unjustly give me credit for collecting the information, let me give credit where it’s due – to our wonderful Federal Public Defender Sentencing Resource Counsel group. They also deserve credit for the ideas which I offer at the end of this post on how to use this information.

First, the change on the judicial (or quasi-judicial) front. The Sentencing Commission has published an amendment to the drug guideline, which I’m attaching here, that would reduce drug base offense levels across the board by 2 levels. The amendment is only published for comment at this point, so it hasn’t yet been adopted by the Commission, but it seems like something the Commission’s really inclined to do. The publication for comment is accompanied by a press release, attached here, with some nice statements by the present chair of the Commission, Judge Saris, about the need to reduce incarceration because of its monetary costs as much as because of fairness. Then another reason given – in the request for comment itself – is that base offense levels were set where they are now in part to allow downward adjustments for guilty pleas or cooperation. (See page 2 of the proposed amendment linked above.) The implication is that this is not an appropriate basis for making the guidelines higher.

Second, there’s developments in the congressional branch, though they face the higher hurdles that congressional action always faces. In that branch, there’s a far more dramatic proposal for decreasing sentences, in the form of what’s been named the “Smarter Sentencing Act,” which I’m linking here. This proposed amendment of the drug sentencing statutes would do three things. First, it would extend the safety valve provision in 18 U.S.C. § 3553(f) to become available to defendants in criminal history category II as well as defendants in criminal history category I. Second, it would “clarif[y]” that the Fair Sentencing Act applies in 18 U.S.C. § 3582(c)(2) sentence reduction proceedings as well as new sentencings, so that clients who have already been sentenced can get the benefit of the new Fair Sentencing Act mandatory minimums. Third, and most sweeping, it would dramatically cut the mandatory minimum penalties in 21 U.S.C. § 841(b), by reducing the 10-year mandatory minimum to 5 years and reducing the 5-year mandatory minimum to 2 years, with a directive that the Sentencing Commission ensure that the guidelines “are consistent with the [statutory] amendments.”

As might be expected – or at least hoped – the Sentencing Commission is fully supportive of these amendments, as reflected in a statement provided to the Senate Judiciary Committee by the Commission’s chair, Judge Saris, which I’m linking here. Her statement notes the fairness concerns created by inconsistent application of the mandatory minimum provisions, the fact that they apply to many lower-level offenders in addition to the “major” and “serious” drug traffickers they were intended to target, and the fact that they have dramatically increased the federal prison population, with a corresponding dramatic increase in cost.

Finally, there’s a policy change that’s already taken place – in executive branch policy. Last August, Attorney General Holder issued a memorandum, linked here, in which the Attorney General acknowledged the need to “ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers,” acknowledged that “long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation,” and acknowledged that such sentences have led to “rising prison costs [that] have resulted in reduced spending on criminal justice initiatives, including spending on law enforcement agents, prosecutors, and prevention and intervention programs.” The memorandum then directed prosecutors to decline to charge the quantity necessary to trigger a mandatory minimum sentence if (a) the relevant conduct does not involve violence, a threat of violence, possession of a weapon, trafficking to minors, or death or serious bodily injury; (b) the defendant is not an organizer, leader, manager or supervisor; (c) the defendant does not have significant ties to a large-scale drug trafficking organization, gang, or cartel; and (d) the defendant does not have a “significant criminal history,” which “will normally be evidenced by three or more criminal history points,” though it may be more or less, depending on the prior convictions’ nature. The memorandum also directed prosecutors to file 21 U.S.C. § 851 informations for prior convictions only if “the defendant is involved in conduct that makes the case appropriate for severe sanctions.” The factors the memo listed for consideration in making this determination were (a) whether the defendant was an organizer, leader, manager or supervisor; (b) whether the defendant was involved in the use or threat of violence; (c) the “nature” of the defendant’s criminal history, “including any prior history of violent conduct or recent prior convictions for serious offenses”; (d) whether the defendant has significant ties to a large-scale drug trafficking organization, gang, or cartel; (e) whether filing the enhancement information “would create a gross sentencing disparity” with equally or more culpable codefendants; and (f) “[o]ther case-specific aggravating or mitigating factors.”

Of course, none of this except the Attorney General’s memo is effective yet. The guidelines amendment – if the Commission adopts it – won’t take effect until November 1, and the Smarter Sentencing Act won’t take effect unless and until Congress actually passes it. But it’s worth thinking about in your present cases for at least a couple of reasons.

First, it’s a reason not to rush your cases along. Assuming the Sentencing Commission does adopt the new guidelines, they’ll take effect and apply to any defendant sentenced after November 1, regardless of when the defendant committed his or her offense. That’s a good reason to try to delay your sentencing until at least May 1, which is the date by which the Commission has to decide on the amendment in order to give Congress the 180-day notice that 28 U.S.C. § 994(p) requires, and then November 1 if the Commission does adopt the amendment. Lest you think that judges wouldn’t agree to such delays to take advantage of new guidelines, note the order linked here, granting such a delay to wait for far more uncertain congressional action on a bill known as the Justice Safety Valve Act, which would allow courts to ignore the mandatory minimums wherever “necessary . . . to avoid violating the requirements of [18 U.S.C. § 3553](a).”

Second, since the guidelines are advisory, you can use these pending proposals – and the reasons given for them – even before they take effect. Why not look to the new proposed guideline that the Sentencing Commission thinks is better for “advice,” rather than the old, implicitly (and arguably even explicitly) discredited guideline? Why not look for “advice” in the Commission’s views, as expressed by Judge Saris’s statement to the Senate Judiciary Committee that’s linked above, that there should be even greater changes such as those reflected in the Smarter Sentencing Act? It’s this new “advice” that reflects the Commission’s “important institutional role [of] the capacity courts lack to ‘base its determination on empirical data and national experience, guided by a professional staff with appropriate expertise,’” that the Supreme Court recognized inKimbrough v. United States, 552 U.S. 85, 109 (2007) (quotingUnited States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring)). The “advice” in the present guidelines is nothing more than a tracking of congressional decisions that don’t even approach being based on empirical data. See Kimbrough, 552 U.S. at 109

Maybe we’re coming around, if not full circle, at least half a circle. I’d say it’s about time.