Challenging the Drug Quantity Used to Calculate Your Sentence

Challenging the Drug Quantity Used to Calculate Your Sentence

If you’ve been convicted of a federal drug crime, one of the most important factors determining your sentence is the quantity of drugs involved. Under federal mandatory minimum sentencing laws, the amount of drugs can trigger long prison terms of 5, 10 years or more.

Many critics argue these mandatory minimums are unfair and lead to excessive punishments. But as long as they remain on the books, the drug quantity calculation is critical. Here’s an overview of how it works and how you may be able to challenge it.

Mandatory Minimums and Drug Quantity

Congress enacted mandatory minimum sentences for drug crimes in the 1980s and 1990s. The laws require judges to impose rigid prison terms based on the type and quantity of drugs involved. For example:

• 5 grams of meth = 5 year minimum
• 50 grams of meth = 10 year minimum
• 500 grams of cocaine = 5 year minimum
• 5 kilos of cocaine = 10 year minimum

Prosecutors don’t actually have to prove these amounts. The law says the judge must apply the mandatory minimum if the drug crime “involved” a particular amount. So the key question becomes: how does the court determine the quantity “involved”?

The Presentence Report

After conviction but before sentencing, federal probation officers prepare a presentence report. This report recommends a sentencing range under the advisory guidelines. It also determines the mandatory minimum, if any, based on the drug quantity.

The probation officer usually calculates drug quantity based on information from the investigation. This could include police reports, informant statements, wiretaps, and defendant statements. The amount doesn’t have to be seized or proven beyond a reasonable doubt. It just has to be reasonably estimated.

If you disagree with the drug quantity finding, it’s critical to object before sentencing. Otherwise, you may lose the ability to appeal it later. Be sure to file written objections and present evidence supporting your position.

Attacking the Drug Quantity Finding

There are several ways to attack an inflated drug quantity determination:

• Argue lack of reliability – If the estimate is based on unreliable sources like guesstimates or liars, point that out.
• Dispute the scope – The government may attribute too wide a time frame or too many transactions to you.
• Challenge factual inaccuracies – If the report relies on incorrect or disputed evidence, say so.
• Object to inclusion of waste – Bags and containers shouldn’t count toward the weight.
• Highlight sentencing entrapment – When informants or agents push quantities above mandatory minimums, argue this is unfair.

In some cases, you may need to hire an expert to analyze the drug quantity calculation. But in many cases, you can point out flaws yourself that could lead to a more reasonable estimate.

The Safety Valve

If you can’t get the drug quantity reduced enough to avoid a mandatory minimum, another option is the “safety valve.” This is a sentencing provision that allows the judge to disregard the mandatory minimum in some drug cases. To qualify, you must:

• Have a minor criminal history
• Not have used violence or weapons
• Not have led the criminal activity
• Have cooperated with the investigation

If you meet these requirements, the judge has discretion to impose a lower sentence even if the mandatory minimum is triggered. This can make a huge difference in how much time you serve.

Other Strategies

Beyond attacking the drug quantity and trying to qualify for the safety valve, other tactics can help reduce your sentence as well:

• Challenge sentence enhancements – Dispute any sentencing enhancements that increase your guideline range.
• Argue mitigating factors – Present personal circumstances that support leniency.
• Cooperate against others – Providing “substantial assistance” could earn you a lower sentence.
• Request a variance – Ask the judge to use their discretion to impose a below-guidelines sentence.

Conclusion

The drug quantity determination has an enormous impact on federal drug sentences. But there are ways to challenge an inflated number and still potentially avoid a lengthy mandatory minimum. An experienced federal drug crimes attorney can help craft the right arguments to fight for the lowest sentence possible under the circumstances.

The laws are harsh, but the facts in your case matter. And skilled advocacy can make the difference between a few years or decades behind bars.

References

[1] How Circuit Courts Should Determine the Mandatory Minimum Sentence for Conspiracy to Distribute Controlled Substances
[2] The Drug Laws That Changed How We Punish
[3] Drug Laws And Snitching – A Primer
[4] A Timeline of the Rise and Fall of ‘Tough on Crime’ Drug Sentencing
[5] Federal Drug Sentencing Laws Bring High Cost, Low Return