Charged as a Courier: Sentencing Reality for Drivers and Mules.

What must prosecutors prove before a federal drug courier can be convicted under 21 U.S.C. §846?

Section 846 is a conspiracy charge that applies to those involved in the drug business, from the higher-ups to the drivers and couriers. This statute, along with Section 371, governs federal conspiracy charges; however, they are not the same. To convict a defendant under Section 846, prosecutors must prove that the defendant knowingly and intentionally entered into an agreement with one or more other individuals to violate the Controlled Substances Act. The drug conspiracy statute under Section 846 differs from the general federal conspiracy statute under Section 371 in several important ways. Most notably, the prosecution is not required to prove that an overt act was committed in furtherance of the conspiracy. So, if no overt act is required, how do prosecutors prove the existence of an agreement? In practice, they prove a defendant’s participation in a conspiracy by piecing together a variety of circumstantial evidence. This evidence may include, but is not limited to, phone records, payments made and received, travel related to the conspiracy, and the defendant’s handling of packages, cash, or other illicit materials. To prove the drug conspiracy charge under Section 846 specifically, they may also use evidence that is specific to the nature of the agreement. If the agreement involved delivering or transporting drugs, they will use evidence of the defendant’s role in the delivery process to show that the defendant knew about and agreed to further the drug operation. They may also use evidence that the defendant knew of other conspirators, such as the individuals who recruited the defendant to serve as a drug courier and paid the defendant to transport drugs. The defendant’s connection to the conspiracy can also be established through the defendant’s knowledge of instructions for the drug delivery, including information about the people involved and the locations where deliveries were to be made.

Why can a courier’s federal sentence exceed the drugs carried on one trip?

A courier’s federal sentence is based on the quantity of drugs attributable to the defendant’s “relevant conduct.” In most drug crimes, the sentencing court will compute the quantity to be included in the relevant conduct based on the amount transported during the drug trip or trips at issue. However, “relevant conduct” can also include drug quantities that were within the scope of the jointly undertaken criminal activity, in furtherance of that activity, and reasonably foreseeable in connection with it.

As a result, it is possible for the quantity of drugs used for sentencing purposes to exceed the actual quantity of drugs the defendant physically transported on any one particular drug delivery. However, for the government to establish the quantity that should be used for sentencing purposes, it must show that the quantity was within the scope of the criminal activity the defendant jointly undertook, in furtherance of that activity, and reasonably foreseeable in connection with it.

These are just some of the reasons why the federal criminal process differs from the processes involved in a state drug arrest or state drug conviction. During the trial phase of the federal criminal process, the government must prove the elements of the offense at issue in order to secure a conviction. Then, during the sentencing phase, the court will determine the appropriate punishment by assessing a variety of different factors. This includes calculating the quantity of drugs involved in the defendant’s relevant conduct, a calculation that can occasionally lead to an unexpected sentencing quantity.

The quantity of drugs that is attributable to the defendant’s relevant conduct may then trigger the drug mandatory minimum sentence. As a result, the sentencing quantity is one of the most critical factors in determine how much time a defendant will spend in federal prison. For drug crimes under federal law, mandatory minimum sentences vary, but they are typically calculated based on:

• Statute;
• Substance(s) involved in the offense; and
• Quantity of drugs involved.

Which sentencing reductions can lower a courier’s federal drug sentence?

Sentencing in federal court involves the application of the United States Sentencing Guidelines (USSG) in conjunction with the relevant drug law statute, unless the defendant or the government makes compelling arguments to justify sentencing beyond the Guidelines’ range. The USSG provides numerous opportunities for sentencing reductions, and this is often a primary defense focus for those arrested as couriers. One particular example is U.S.S.G. § 3B1.2, which addresses mitigating role adjustments.

Under U.S.S.G. § 3B1.2, a defendant’s sentence can be reduced by four levels for minimal participation in a drug conspiracy, or by two levels for minor participation. The 2015 Guideline Amendments specifically addressed the eligibility of couriers and other participants for mitigating role adjustments. Among others, the amendments clarify the following regarding minimal-role status: “Determination of minimal-role status takes into account the defendant’s culpability relative to the average participant in the criminal activity.” This is a subtle but important distinction; it means a defendant’s minimal-role status is tied to the defendant’s responsibility and culpability as opposed to the defendant’s rank. As a result, for a defendant to earn a minimal-role status, the defendant must show that they are “substantially less culpable than the average participant in the criminal activity.”

This is an important distinction for drug couriers who may have no control over the drug operation at all. If they have no control over the operation, this does not make them eligible for minimal-role status by itself; instead, it means that if they meet the culpability standard, they can earn a minimal-role status and a 4-level sentencing reduction.

Another potential sentencing reduction is the so-called “safety valve.” The safety valve can be used to avoid mandatory minimum sentencing and is codified at 18 U.S.C. § 3553(f) and explained at U.S.S.G. § 5C1.2.

How do ignorance, coercion, and withdrawal affect courier conspiracy liability?

The various other forms of evidence that the government will use during federal drug conspiracy investigations. Along with establishing evidence regarding the defendant’s knowledge, communication with other conspirators, the drug quantities at issue, and other factors, government prosecutors and agents will also look for evidence that shows a courier:

• Knew they were carrying drugs (rather than just transporting a package)
• Did not experience a situation with duress or coercion (where the courier acted under the threat of immediate harm)
• Did not withdraw from the drug conspiracy For example, in many federal courier cases, the government’s agents claim they have sealed packaging that, by itself, should establish the defendant’s actual knowledge. The government may argue that the defendant knows this only because they are delivering something illegal, as legitimate shipping services do not wrap packages in multiple layers of shrink-wrap and adhesive tape, and they do not arrange for secret, nighttime, street-corner handoffs. In turn, a defendant’s credible claims of ignorance may support a defense to charges requiring knowing participation, but guilt is determined at trial or by a guilty plea, not by the grand jury or the sentencing judge. If the defendant was forced to participate in the conspiracy, then evidence of duress or other coercion that compelled the defendant to drive, fly, or mail the drugs can be an effective defense strategy as well. However, the government’s burden is heavily weighted toward a finding of guilt, so if a defendant is going to rely on the lack of intent or the presence of coercion, then the defendant’s defense counsel must be prepared to do more than just make mere allegations. If evidence of withdrawal is on the table as a possible defense, it may be possible to show the courier’s withdrawal before the charges became foreseeable or inevitable. For this to work, however, the evidence must show more than just the fact that the defendant stopped participating in the conspiracy. The evidence must show an affirmative act inconsistent with the conspiracy’s objectives, communicated to the defendant’s coconspirators in a manner reasonably calculated to reach them, and, in some circumstances, the defendant will need to do even more to successfully withdraw from the conspiracy.

When do the presentence report and plea pressure shape the outcome?

The presentence report is one of the materials evaluated before a federal sentencing court imposes a federal drug sentence. Federal Rule of Criminal Procedure 32 governs the presentence investigation process. If the presentence report miscalculates the USSG provisions that apply in the case, and if it improperly imposes sentencing enhancements, then a defendant’s defense counsel can object. For this reason, reviewing the presentence report is critical. As a result of the various factors listed above, many federal drug arrests end up in plea agreements. As noted in the articles and resources supplied by one law firm, “The numbers cited show that 3.0% of drug offenders sentenced in fiscal year 2012 went to trial.” Of course, these numbers come from a 2022 discussion of federal drug crimes in the southwest-border districts, but it demonstrates the immense pressure that many defendants face to accept a plea agreement in federal criminal cases. Regardless, when you are at risk of federal sentencing, what is most important is for you to seek the advice of the right attorney.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.