Mandatory Minimums and the Limits of Judicial Discretion.

A federal mandatory minimum sentence is a sentence that requires the defendant to serve at least a minimum period of time in prison if he or she is convicted of the offense charged. In all cases involving federal mandatory minimum sentences, the defendant’s trial judge generally has the authority to sentence him or her no lower than the minimum sentence unless Congress has specifically authorized such a lower sentence. When determining whether mandatory minimum sentencing applies, several factors come into play. These factors include the specific federal statute at issue and the specific subsection of the federal statute under which the defendant has been charged. The specific facts at issue in the case will also play a part in determining whether a mandatory minimum sentence applies. Finally, any and all qualifying prior convictions will also be factored into determining whether mandatory minimum sentencing applies.

Congress created federal mandatory minimum penalties within the federal criminal statutes. When Congress created these penalties, it focused on a small number of specific types of offenses. These offenses include those involving illegal drugs, illegal firearms, and criminal offenses involving child exploitation.

The drug-related federal mandatory minimums are among the most frequently used by federal prosecutors. When federal mandatory minimums apply to drug-related crimes, the penalties often start at either five or ten years of federal prison time.

Marijuana manufacturing and distribution cases are common examples of drug crimes that trigger federal mandatory minimum sentencing. These often trigger federal mandatory minimums when they involve the cultivation, production, distribution, or dispensing of a certain amount of marijuana. For example:

• 100 marijuana plants: Cultivation, manufacture, distribution, or dispensing of 100 or more marijuana plants can trigger a five-year federal mandatory minimum sentence; and
• 1,000 marijuana plants: Cultivation, manufacture, distribution, or dispensing of 1,000 or more marijuana plants can trigger a ten-year federal mandatory minimum sentence.

What facts must be proved before a mandatory minimum applies?

In many cases involving federal mandatory minimum sentencing, the mandatory minimum is dependent on whether specific drug types are involved or the amount of drug weight involved.

In most federal cases, the federal indictment will specify whether a mandatory minimum applies. If the indictment alleges facts that would increase the applicable mandatory minimum sentence, then the prosecution must prove these facts beyond a reasonable doubt at trial.

Following the U.S. Supreme Court’s holding in the case of Alleyne v. United States, 570 U.S. 99 (2013), juries must find mandatory-minimum trigger facts beyond a reasonable doubt unless:

• 1. The defendant admits to the mandatory-minimum trigger facts through a valid guilty plea; or,
• 2. The facts at issue involve a prior felony conviction under a sentencing enhancement statute.

In Alleyne, the Court noted that Congress’s legislative history suggests a difference between sentencing based on a defendant’s past criminal record and sentencing based on additional facts proven about a defendant’s actions during the commission of a specific offense. The Supreme Court found that the existence of prior convictions is a judicial determination that is consistent with the Sixth Amendment and that it does not need to be found beyond a reasonable doubt in order to impose an increased sentence. However, if the additional facts involve a defendant’s actions that can support a mandatory minimum, then the defendant’s Sixth Amendment right to a trial by jury includes a jury’s determination of those facts beyond a reasonable doubt.

With this in mind, in the Burrage v. United States, 571 U.S. 204 (2014), the Court found that the U.S. Sixth Circuit’s application of §841(b)(1)(C) was incorrect. As a result of this ruling, the prosecution must prove that the defendant’s drug distribution caused the death of the victim to determine if the death enhancement applies. In this case, the government must be able to prove that but-for the distribution of the drugs, the victim would not have died. This is because the victim had ingested other drugs prior to the distribution of the illegal drugs by the defendant at issue in the Burrage case. So the mere distribution of the drug alone would not have been sufficient to trigger the federal death enhancement.

When does the sentencing court have discretion to impose a sentence below a mandatory minimum sentence?

In many cases, the charging decisions by the federal prosecutor will determine whether mandatory minimum sentencing attaches. As a result, if a federal prosecutor drops the charge that triggers mandatory minimum sentencing, the federal sentencing floor will be removed. So, one of the most important aspects of defending against mandatory minimum sentencing is to work with the federal prosecutor and the United States Attorney’s Office to get the charges dropped before the trial concludes.

How does a mandatory minimum interact with the federal sentencing guidelines?

The federal sentencing guidelines are advisory. Statutory mandatory minimums are binding. Variances under the federal sentencing guidelines, described as Sentencing Policy Statements, allow judges to impose sentences below the applicable guidelines range. However, even with the authority to use a variance to impose a lower sentence, federal judges cannot use this to override a statutory mandatory minimum sentence (unless a separate statutory exception applies).

The guidelines range will be affected by a mandatory minimum when applicable in the following three scenarios. All three of these scenarios fall under U.S.S.G. §5G1.1. They include:

• Case 1: U.S.S.G. §5G1.1(c), In this scenario, the mandatory minimum is lower than the federal sentencing guidelines range. The mandatory minimum will have no impact on the guidelines range calculations.
• Case 2: U.S.S.G. §5G1.1(c), Here, the mandatory minimum is higher than the low end of the federal sentencing guidelines range. This means the sentencing range will be truncated.
• Case 3: U.S.S.G. §5G1.1(b), In this scenario, the mandatory minimum is higher than the federal sentencing guidelines range. In this case, the mandatory minimum becomes the guidelines range.

Departures will not allow federal judges to impose sentences below statutory mandatory minimums. Departures are simply just another type of sentencing variance and, like variances, must be based on the statutory authority that Congress has granted to judges. Therefore, if the prosecution charges the defendant with a criminal offense that carries a mandatory minimum penalty, then the judge cannot use a departure to impose a sentence below the statutory mandatory minimum.

In each case, even if the judge will be unable to go below the statutory floor, judges must still calculate the applicable advisory guidelines range before they can impose a sentence in federal court. Prior to 2005, federal judges were required to impose sentences within the guidelines range. However, in United States v. Booker, the Supreme Court determined that these guidelines were advisory in nature.

Do mandatory minimum sentences on separate counts run consecutively?

Aggravated identity theft carries a mandatory minimum of two years of federal prison time. This is a consecutive sentence, meaning that the federal judge will impose a sentence that runs consecutively to the prison term(s) imposed for the underlying offense(s) in a given case.

Consecutive prison terms do not run concurrently. Instead, each consecutive prison term will be added to any previously imposed prison term(s) in order to determine the defendant’s aggregate prison time.

18 U.S.C. § 924(c) is another section of the federal criminal code that requires consecutive mandatory minimum sentencing. Section 924(c) imposes consecutive mandatory minimum sentencing when a defendant possesses a firearm with the intent to promote or further any criminal offense qualifying as a predicate offense. Section 924(c) also imposes consecutive mandatory minimum sentencing in cases involving a defendant’s use or carriage of a firearm during or in relation to a predicate offense. Generally, section 924(c) specifies that it’s mandatory that its prison term runs consecutively to all other terms of imprisonment imposed in the case. Generally, section 924(c) requires:

• 5 years of federal prison time for qualifying firearms offenses not involving discharge, discharge during the commission of a felony, or discharge that results in a bodily injury or death;
• 7 years of federal prison time for qualifying firearms offenses involving brandishing; and,
• 10 years of federal prison time for qualifying firearms offenses involving a discharge.

If the offense is related to terrorism, aggravated identity theft carries a mandatory five-year federal prison sentence. In these cases, the mandatory minimum remains consecutive and will still be added to any other sentencing terms.

Concurrent prison terms are different. Instead of running one after another, these prison terms run at the same time. This means that the time spent in prison for one offense will be credited toward the defendant’s prison time for the other offense(s). Therefore, concurrent sentences overlap instead of being added to the total time sentenced.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

How does the safety valve work in federal drug cases?

The safety valve is another way that federal judges can avoid imposing a mandatory minimum sentence. The safety valve is found at 18 U.S.C. § 3553(f) and it applies only to federal drug crimes involving the following statutes:

• 21 U.S.C. §841, manufacture, distribution, and possession with intent to manufacture or distribute controlled substances;
• 21 U.S.C. §844, possession, possession with intent to manufacture or distribute, possession by mistake, and unlawful transfer or importation of controlled substances;
• 21 U.S.C. §846, conspiracy and attempt to commit federal drug crimes;
• 21 U.S.C. §960, importation, exportation, manufacture, and distribution of controlled substances from abroad; and, and,
• 21 U.S.C. §963, conspiracy and attempt to import, export, manufacture, or distribute controlled substances from abroad.

In order to qualify for the safety valve, a defendant must satisfy five statutory criteria, including not using a firearm, not causing serious bodily injury or death, not using or threatening violence in connection with the crime, not being a leader, organizer, manager, or supervisor in the crime, and, importantly, providing truthful information about the offense before sentencing.

Additionally, a defendant will be in eligible to benefit from the safety valve if they have “specified criminal-history characteristics.” The characteristics mentioned are:

• Drug offenses that were subject to a mandatory minimum of 5 years or more
• An aggravating drug offense
• More than 4 criminal history points, excluding any points from 1-point offenses, as determined under the federal sentencing guidelines

In 2012, the Supreme Court determined that if a defendant’s sentencing offense falls within one of these three categories, the safety valve will not be available. This case was decided in Pulsifer v. United States, 601 U.S. 124 (2024), 601 U.S. 124 (2024), and this allows a defendant to qualify for the safety valve if he or she has at least one “specified criminal-history characteristic.” However, defendants who have a criminal record can still benefit from the safety valve.

What are some of the major federal crimes that carry mandatory minimum sentences?

Among the most common examples of federal crimes that carry mandatory minimum sentences are drug offenses, firearm offenses, and crimes involving child exploitation. These are some of the federal crimes that carry mandatory minimum sentences:

• 21 U.S.C. 841, conspiracy, attempt, manufacture, distribution, and possession with intent to manufacture or distribute controlled substances
• 26 U.S.C. 7206, making false or fraudulent returns, reports, or statements (tax crimes)
• 18 U.S.C. 922, violations and offenses involving illegal firearms
• 18 U.S.C. 924(c), illegal firearms possession, use, and carriage related to a federal predicate offense
• 18 U.S.C. 1341, federal mail fraud conspiracy and attempt
• 18 U.S.C. 1343, federal wire fraud conspiracy and attempt
• 18 U.S.C. 1344, federal bank fraud conspiracy and attempt
• 18 U.S.C. 1512, witness tampering, obstruction of justice
• 18 U.S.C. 1595, transportation of a foreign national in violation of the Immigration and Nationality Act
• 18 U.S.C. 2251, sexual exploitation of children
• 18 U.S.C. 2252, sale of material that visually depicts, creates, or produces obscene or sexual material involving children
• 18 U.S.C. 2252A, violations and offenses relating to child pornography violations
• 18 U.S.C. 1958, money laundering conspiracy, attempt, and violations
• 18 U.S.C. 1962, racketeer influenced and corrupt organizations (RICO) conspiracy and attempt
• 18 U.S.C. 1963, violations and offenses involving racketeer influenced and corrupt organizations (RICO)

Can cooperating with the government get me below a mandatory minimum?

When a defendant provides substantial assistance in the government’s investigation and prosecution of federal crimes, this can result in sentencing below a mandatory minimum. To be eligible to have a federal sentence below the statutory mandatory minimum, the government must file a motion on your behalf. There are two different motions that the government can file.

The first motion is under 18 U.S.C. § 3553(e) and the second motion is under U.S.S.G. § 5K1.1. Section 3553(e) authorizes a reduction below the statutory mandatory minimum sentence based on a defendant’s cooperation with the government. U.S.S.G. § 5K1.1 covers cooperation that constitutes substantial assistance at sentencing. Because the government has discretion under this section, the government’s United States Attorney’s Office (U.S. Attorney), with approval from the Department of Justice, will determine if a defendant’s cooperation is substantial enough to qualify for a reduced sentence.

The two motions have some significant differences between them. A §5K1.1 motion filed by the government does not, on its own, authorize a sentence below the statutory minimum. It merely allows the judge to apply a downward departure within the applicable federal sentencing guidelines range. To be eligible for a sentence below the statutory mandatory minimum, the government must move for a sentencing reduction under Section 3553(e). In this scenario, the judge must determine that a sentence below the mandatory minimum is warranted based on the defendant’s cooperation. When which the judge can then impose a reduction below the statutory mandatory minimum. When applying a reduction under Section 3553(e), the judge must ensure the sentence imposed reflects all relevant considerations, including the defendant’s cooperation.

When a defendant provides substantial assistance after their sentencing is complete (and all appeals are finalized or waived), Rule 35(b) of the Federal Rules of Criminal Procedure applies. Rule 35(b) allows the United States Attorney’s Office to request a reduction in the length of the defendant’s prison sentence on their behalf. Similarly to a motion under Section 3553(e), Rule 35(b) requires the District Court judge to determine that a reduction in the defendant’s sentence is warranted in order for a reduction below the statutory minimum to be imposed.

How does the Armed Career Criminal Act’s fifteen-year minimum work?

The Armed Career Criminal Act imposes a fifteen-year mandatory minimum sentence for unlawful firearms possession. In order for the statute to apply, the defendant must have been found in possession of a firearm and must have three qualifying prior convictions. The qualifying prior convictions can be serious drug offenses and/or violent felonies.

The Armed Career Criminal Act applies a separate occasions analysis to these qualifying prior convictions. In the case of Erlinger v. United States, 135 S. Ct. 2376, 2383 (2015), the Supreme Court held that jury trials should be used to determine whether a defendant has multiple qualifying prior convictions that qualify as “separate occasions.” According to the Court’s majority, once the government files a motion to amend the indictment to include a separate occasions analysis based on the evidence produced during trial, then the jury must determine whether the defendant has multiple qualifying prior convictions that occurred on separate occasions beyond a reasonable doubt.

Under Section 851, the government must file a notice with the court before trial or the defendant must enter a guilty plea. This notice should describe the defendant’s criminal record that the government is relying on to support the statutory mandatory minimum sentence for a qualifying drug offense or an increased sentence under the Armed Career Criminal Act. In the case of Wooden v. United States, 136 S. Ct. 2305, 2310-12 (2016), the Supreme Court noted that “the separate occasions analysis is fact-intensive” and requires a “close-reading of the record.”

Wooden v. United States also discusses the implications of the Separate Occasions and “Statutory Ineligibility.” The Court stated that the separate occasions analysis is important in ensuring that defendants only face the fifteen-year mandatory minimum sentence under the Armed Career Criminal Act if it is factually warranted. The majority’s analysis in Wooden confirms that “no clear rule” is currently available that would simplify the separate occasions analysis.

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Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.