# Mandatory Minimum Sentencing of Federal Drug Offenses > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR45074 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** January 11, 2018 - **Citation:** R45074 ## Text Mandatory Minimum Sentencing of Federal Drug Offenses (name redacted) Senior Specialist in American Public Law January 11, 2018 Congressional Research Service 7-.... www.crs.gov R45074 Mandatory Minimum Sentencing of Federal Drug Offenses Summary As a general rule, federal judges must impose a minimum term of imprisonment upon defendants convicted of various controlled substance (drug) offenses and drug-related offenses. The severity of those sentences depends primarily upon the nature and amount of the drugs involved, the defendant’s prior criminal record, any resulting injuries or death, and in the case of the related firearms offenses, the manner in which the firearm was used. The drug offenses reside principally in the Controlled Substances Act or the Controlled Substances Import and Export Act. The drug-related firearms offenses involve the possession and use of firearms in connection with serious drug offenses and instances in which prior drug convictions trigger mandatory sentences for unlawful firearms possession. The minimum sentences range from imprisonment for a year to imprisonment for life. Although the sentences are usually referred to as mandatory minimum sentences, a defendant may avoid them under several circumstances. Prosecutors may elect not to prosecute. The President may choose to pardon the defendant or commute his sentence. The defendant may qualify for sentencing for providing authorities with substantial assistance or under the so-called “safety valve” provision available to low-level, nonviolent, first-time offenders. Over time, defendants, sentenced to mandatory terms of imprisonment for drug-related offenses, have challenged Congress’s legislative authority to authorize them and the government’s constitutional authority to enforcement. The challenges have met with scant success. Generally, courts have concluded that the provisions fall within congressional authority under the Commerce, Necessary and Proper, Treaty, and Territorial Clauses of the Constitution. By and large, courts have also found no impediment to imposition of mandatory minimum sentences under the Due Process, Equal Protection, or Cruel and Unusual Punishment Clauses, or the separation-of-powers doctrine. Proposals to amend drug-related mandatory minimum sentence provisions surfaced during the 114th Congress. In the 115th Congress, Senator Grassley introduced the successor to those proposals for himself and a bi-partisan list of co-sponsors as S. 1917, the Sentencing Reform and Corrections Act of 2017. Many of the same issues are addressed in H.R. 4261 introduced by Representative Scott of Virginia. This is an overview of the law from which those proposals spring. This report is available in an abridged version, CRS Report R45075, Mandatory Minimum Sentencing of Federal Drug Offenses in Short, without the citations to authority and origin of quotations found here. Congressional Research Service Mandatory Minimum Sentencing of Federal Drug Offenses Contents Introduction ..................................................................................................................................... 1 Background ..................................................................................................................................... 2 Mandatory Minimums for Drug Crimes .......................................................................................... 5 Features of Mandatory Minimum Drug Offenses ..................................................................... 7 Domestic Manufacture or Distribution (21 U.S.C. § 841(a)) ............................................. 7 Attempt, Conspiracy, and Aiding and Abetting (21 U.S.C. § 846; 18 U.S.C. § 2) ........... 12 Special Circumstances ...................................................................................................... 13 Import/Export Offenses .................................................................................................... 13 Maritime Drug Law Enforcement Act (MDLEA) (46 U.S.C. §§ 70503, 70506) ............. 14 Narco-Terrorism (21 U.S.C. § 960a)................................................................................. 15 Drug Kingpin (21 U.S.C. § 848) ....................................................................................... 15 Drug-Related Mandatory Minimums ............................................................................................ 16 Firearm Possession in Furtherance (18 U.S.C. § 924(c)) ........................................................ 16 Features ............................................................................................................................. 17 Armed Career Criminal Act (18 U.S.C. § 924(e))................................................................... 23 Features ............................................................................................................................. 24 Safety Valve ................................................................................................................................... 26 One Criminal History Point .................................................................................................... 27 Only the Nonviolent ................................................................................................................ 28 Only Single or Low Level Offenders ...................................................................................... 29 Tell All ..................................................................................................................................... 29 Substantial Assistance ................................................................................................................... 31 Upon the Motion of the Government ...................................................................................... 31 To Reflect a Defendant’s Substantial Assistance .................................................................... 32 Constitutional Considerations ....................................................................................................... 33 Legislative Authority ............................................................................................................... 33 Commerce Clause ............................................................................................................. 34 Treaty Power ..................................................................................................................... 35 Territorial and Maritime Jurisdiction ................................................................................ 35 Necessary and Proper ........................................................................................................ 36 Limits on Legislative Authority .............................................................................................. 36 Cruel and Unusual Punishment ......................................................................................... 37 Equal Protection ................................................................................................................ 38 Juries, Grand Juries, and Due Process .............................................................................. 39 Separation of Powers ........................................................................................................ 40 Tables Table 1. Federal Drug Offenses: Mandatory Minimum Terms of Imprisonment ............................ 6 Contacts Author Contact Information .......................................................................................................... 41 Congressional Research Service Mandatory Minimum Sentencing of Federal Drug Offenses Introduction This is a brief discussion of the law associated with the mandatory minimum sentencing provisions of federal controlled substance (drug) laws and drug-related federal firearms and recidivist statutes.1 These mandatory minimums, however, are not as mandatory as they might appear. The government may elect not to prosecute the underlying offenses. Federal courts may disregard otherwise applicable mandatory sentencing requirements at the behest of the government.2 The federal courts may also bypass some of them for the benefit of certain lowlevel, nonviolent offenders with virtually spotless criminal records under the so-called “safety valve” provision.3 Finally, in cases where the mandatory minimums would usually apply, the President may pardon offenders or commute their sentences before the minimum term of imprisonment has been served.4 Be that as it may, sentencing in drug cases, particularly mandatory minimum drug sentencing, has contributed to an explosion in the federal prison population and attendant costs. Thus, the federal inmate population at the end of 1976 was 23,566, and at the end of 1986 it was 36,042.5 On January 4, 2018, the federal inmate population 1 The inventory includes: 21 U.S.C. §§ 841(a), 841(b) (manufacturing, distributing, dispensing, or possessing with the intent to do so various controlled substances); id. §§ 841(h), 841(b) (dispensing controlled substances by way of the Internet); id. §§ 844(a), 841(b) (simple possession of controlled substances by repeat offenders); id. §§ 846, 841(b) (attempt or conspiracy to commit an offense punishable by a mandatory minimum sentence); id. § 848 (continuing criminal enterprise (drug kingpin)); id. §§ 849, 841(b) (distribution of controlled substances as truck stops); 21 U.S.C. §§ 859, 841(b) (distribution of controlled substances to an individual under 21 years of age); id. §§ 860, 841(b) (distribution of controlled substances at in or near schools, playgrounds, public housing projects, etc.); id. §§ 861, 841(b) (use of children in drug operations); 21 U.S.C. §§ 861(f), 841(b) (distribution of controlled substances to pregnant individuals); id. §§ 952, 960 (importing controlled substances into the United States); id. §§ 953, 960 (exporting controlled substances from the United States); id. §§ 955, 960 (possession of controlled substances aboard a ship arriving in or departing from the United States); id. §§ 959, 960 (possession abroad of controlled substances or listed substances for importation into the United States by vessel or plane); id. §§ 960a, 841(b) (narco-terrorism); id. §§ 963, 960 (attempt or conspiracy to commit an exporting or importing offense punishable by a mandatory minimum); 18 U.S.C. § 3261; 21 U.S.C. § 841(b) (military extraterritorial jurisdiction); 46 U.S.C. §§ 70503, 70506; 21 U.S.C. § 960 (maritime drug law enforcement act offenses). Here and throughout, the host of later amendments to the Controlled Substances Act and the Controlled Substances Import and Export Act counsel citation to the sections of those Acts as they appear in title 21 of the United States Code unless otherwise noted. 18 U.S.C. § 3559(c) (mandatory life imprisonment for defendants convicted of a serious violent felony who have a one or more prior serious drug convictions and one or more prior serious violent felony convictions); id. § 924(c) (mandatory minimum sentence for carrying a firearm in furtherance of a drug trafficking offense); id. § 924(e) (mandatory minimum sentence for conviction of unlawful possession of a firearm by a defendant with three or more prior violent felony or serious drug offense convictions). Here and throughout the terms “drug” and “controlled substance” are used interchangeably. Various parts of the report are drawn from the author’s earlier reports, principally CRS Report RL32040, Federal Mandatory Minimum Sentencing Statutes; CRS Report RL30281, Federal Mandatory Minimum Sentencing Statutes: A List of Citations with Captions, Introductory Comments, and Bibliography; CRS Report R42386, Mandatory Minimum Sentencing for Federal Sex Offenses: An Overview; CRS Report R41326, Federal Mandatory Minimum Sentences: The Safety Valve and Substantial Assistance Exceptions; CRS Report R41412, Federal Mandatory Minimum Sentencing: The 18 U.S.C. 924(c) Tack-On in Cases Involving Drugs or Violence; CRS Report R41461, Three Strike Mandatory Sentencing (18 U.S.C. 3559(c)): An Overview. 2 18 U.S.C. § 3553(e). 3 Id. § 3553(f). 4 U.S. CONST. art. II, § 2, cl. 1. E.g., President Obama Commutes Sentences of 95 Federal Drug Offenders, THE WASHINGTON POST, Dec. 18, 2015, https://www.washingtonpost.com/world/national-security/president-obamacommutes-sentences-of-about-100-drug-offenders/2015/12/18/9b62c91c-a5a3-11e5-9c4ebe37f66848bb_story.html?utm_term=.19c2833a2a8c. 5 U.S. Department of Justice, Bureau of Justice Statistics, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS – 1987, Table 6.52 (1987). Congressional Research Service 1 Mandatory Minimum Sentencing of Federal Drug Offenses was 183,493.6 As of September 30, 2016, 49.1% of federal inmates were drug offenders and 72.3% of those were convicted of an offense carrying a mandatory minimum.7 In 1976, federal prisons cost $183.914 million; in 1986, $550.014 million; and in 2016, $6.751 billion (est.).8 Background Federal mandatory minimum sentencing statutes have existed since the dawn of the Republic. When the first Congress assembled, it enacted several mandatory minimums, each of them a capital offense.9 The drug mandatory minimums are of more recent origins. The first arrived in 1914, when Congress established a mandatory minimum of five years for the manufacture of opium for smoking purposes.10 Shortly after mid-century, Congress began adding to the number of drug-related mandatory minimums. Prior to enactment of the Controlled Substances Act and the Controlled Substances Import and Export Act in 1970,11 federal law included mandatory minimums for violations of the narcotics or marijuana tax regimes;12 smuggling narcotics or marijuana;13 distributing heroin to a child;14 possession of narcotics aboard a U.S. vessel;15 and violations of federal drug laws using communications facilities.16 The 1970s legislation eliminated them all.17 Left in their place were only the mandatory minimums in the continuing criminal enterprise (drug kingpin) section.18 Then, in 1984, Congress enacted the Sentencing Reform Act that created the United States Sentencing Commission and authorized it to promulgate then binding sentencing guidelines.19 In many instances, the resulting Guidelines operated essentially, but briefly, to establish a mandatory minimum term of imprisonment where none had existed before.20 Soon thereafter, Congress 6 Federal Bureau of Prisons, Statistics, https://www.bop.gov/about/statistics/population_statistics.jsp. 7 U.S. Sentencing Commission, MANDATORY MINIMUM PENALTIES FOR DRUG OFFENSES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM, 4 (October 2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchpublications/2017/20171025_Drug-Mand-Min.pdf. 8 BUDGET OF THE U.S. GOVERNMENT: APPENDIX for Fiscal Years 1978, 1988, and 2017, respectively. 9 The Act of April 30, 1790 declared that “persons ... adjudged guilty of treason against the United States ... shall suffer death,” 1 Stat. 112; the same sentence awaited those who committed murder within the exclusive jurisdiction of the United States, id. at 113, or engaged in piracy, id. at 113-14, or counterfeiting, id . at 115. 10 Act of January 17, 1914, 38 Stat. 278 (1914). 11 The 1970 Comprehensive Drug Abuse Prevention and Control Act encompassed both the Controlled Substances Act and the Controlled Substances Import and Export Act, P.L. 91-513, 94 Stat. 1236 (1970). 12 26 U.S.C. § 7237 (1964 ed.) (imprisonment for not less than 2 years for the first offense, not less than 5 years for the second, and not less than 10 years for the third). 13 21 U.S.C. §§ 174, 176a (1964 ed.) (imprisonment for not less than 5 years for the first offense and not less than 10 years for the second). 14 Id. § 176b (1964 ed.) (imprisonment for not less than 10 years for distributing heroin to a child). 15 Id. § 184a (1964 ed.) (imprisonment for not less than 5 years for the first offense and not less than 10 years for the second). 16 18 U.S.C. § 1403 (1964 ed.) (imprisonment for not less than 2 years). 17 Pub. L. No. 91-513, § 1101, 84 Stat. 1236, 1291-92 (1970). 18 Id. § 408, 84 Stat. at 1265 (imprisonment for not less than 10 years for the first offense and not less than 20 years for the second). 19 P.L. 98-473, title II, §§ 211, 217, 98 Stat. 1987, 2017 (1984). Although the Sentencing Guidelines still heavily influence the sentences imposed by federal courts, see Gall v. United States, 552 U.S. 38 (2007), the Guidelines are no longer binding, United States v. Booker, 543 U.S. 220 (2005). 20 18 U.S.C. § 3553(b) (“…The court shall impose a sentence … within the range … unless the court finds that an (continued...) Congressional Research Service 2 Mandatory Minimum Sentencing of Federal Drug Offenses began to repopulate federal drug laws with mandatory minimums, the bulk of which Congress inserted using the Anti-Drug Abuse Act of 1986.21 The 1986 legislation, however, included substantial assistance provisions which allow the courts to disregard the mandatory minimums in the case of cooperative defendants.22 In addition, shortly thereafter, Congress instructed the Sentencing Commission to provide it with a detailed report on federal mandatory minimum statutes.23 The commission’s 1991 report24 observed that from 1984 to 1990 four drug-related statutes accounted for roughly 94% of the mandatory minimum offenses regularly prosecuted.25 The commission’s initial report was quickly followed by a Department of Justice study that concluded that a substantial number of those sentenced under federal mandatory minimums were nonviolent, first-time, low-level drug offenders.26 Congress responded with the safety valve provisions of 18 U.S.C. § 3553(f), under which the court may disregard various drug mandatory minimums and sentence an offender within the applicable sentencing guideline range as long as the offender was a low-level, nonviolent participant with no prior criminal record who has cooperated fully with the government.27 The hate crime legislation enacted in 2009 directed the U.S. Sentencing Commission to submit a second report on federal mandatory minimums.28 The commission presented its second report in October 2011.29 A number of things had changed between the first and second Commission (...continued) aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission…”). See, e.g., United States v. Johnson, 908 F.2d 396, 399 (8th Cir. 1990) (sentencing under 18 U.S.C. § 1014, false statements on a loan application, no statutory mandatory minimum) (“Limiting appellate review of a district court’s refusal to depart from the guidelines, 18 U.S.C. 3742(e) (1988) provides that a reviewing court must uphold a sentence unless it was: (1) imposed in violation of the law; (2) imposed because the court incorrectly applied the guidelines; (3) outside the range of the applicable guideline and was unreasonable; or (4) imposed for an offense with no applicable guideline and is plainly unreasonable. This circuit has determined that departures pursuant to section 3553(b) were intended by the Commission to be allowed only in rare cases.”); United States v. Carey, 895 F.2d 318, 321, 326 (7th Cir. 1990) (sentencing under 18 U.S.C. § 1344, scheme to defraud a bank, no statutory mandatory minimum) (“At sentencing, the district court acknowledged that the pretrial service agency’s calculation of the appropriate sentencing range at 12 to 18 months was accurate. The court, however, departed downward from the applicable range .… We share in the district court’s apparent concern over any harshness the Guidelines create in the case at bar.… Nevertheless, the Guidelines seek to end the disparity in sentencing, see 28 U.S.C. § 991(b)(2)(B), and in doing so, mandate that departures be the exception and occur only when truly justified.”). 21 P.L. 99-570, 100 Stat. 3207 (1986). The Act established mandatory minimums in 21 U.S.C. §§ 841 (possession with intent to distribute controlled substances); 844 (simple possession); 845 (distribution of a person under 21 years of age); 845a (distribution near a school); 845b (use of child in a drug operation); 960 (controlled substance import or export offenses) (1988 ed.); and added drug offenses to the Armed Career Criminal Act (ACCA)’s predicate offense list, 18 U.S.C. § 924(e) (1988 ed.). 22 P.L. 99-570, 100 Stat. 3207 (1986), 18 U.S.C. § 3553(e) (1988 ed.). 23 P.L. 101-647, § 1703, 104 Stat. 4845 (1990). 24 United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System: Special Report to the Congress (August 1991) (Commission Report I). 25 Id. at 10 (“[F]our statutes account for approximately 94 percent of the cases ... 21 U.S.C. § 841 (manufacture and distribution of controlled substances), 21 U.S.C. § 844 (possession of controlled substances), 21 U.S.C. § 960 (penalties for the importation/exportation of controlled substances), and 18 U.S.C. § 924(c) (minimum sentence enhancements for carrying a firearm during a drug or violent crime) …”). 26 United States Department of Justice: An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories, reprinted in, 54 CRIM. L. REP. 2101 (1994). 27 P.L. 103-322, § 80001(a), 108 Stat. 1985 (1994). 28 The Matthew Shepard and James Byrd Jr. Hate Crime Prevention Act, P.L. 111-84, § 4713, 123 Stat. 2843 (2009). 29 United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System: (continued...) Congressional Research Service 3 Mandatory Minimum Sentencing of Federal Drug Offenses reports. Sentencing under the Guidelines had been in place for only a relatively short period of time when the first report was written. By the time of the second report, the number of defendants sentenced by federal courts had grown to almost three times the number sentenced under the Guidelines when the commission wrote its first report.30 The judicial landscape has changed as well. When the commission issued its first report, the Guidelines were considered binding upon sentencing judges.31 After the Supreme Court’s Booker decision and its progeny, the Guidelines became but the first step in the sentencing process.32 In addition, the Fair Sentencing Act, passed in 2010, reduced the powder cocaine-crack cocaine ratio from 100 to 10 to roughly 18 to 1.33 The second Commission report recommended that Congress consider expanding eligibility for the safety valve, and adjusting the scope, severity, and the prior offenses that trigger the recidivist provisions under firearm statute34 and the two principal drug statutes, (21 U.S.C. §§ 841 and 960).35 In October 2017, the commission issued a third report devoted exclusively to mandatory minimum penalties for drug offenses, in which it made no recommendations.36 Instead, the report provided an extensive statistical analysis, summarized in ten findings: 1. Drug mandatory minimum penalties continued to result in long sentences in the federal system. 2. Mandatory minimum penalties continued to have a significant impact on the size and composition of the federal prison population. (...continued) Report to the Congress (October 2011) (Commission Report II). 30 Id. at 66 (“The total number of federal cases has almost tripled from 29,011 in fiscal year 1990 to 83,947 in fiscal year 2010”); see also Commission Report I, supra note 20 at 51 (noting that 29,011 defendants were sentenced under the Guidelines in fiscal year 1990). Moreover, although the second report noted that many of the mandatory minimum offenses were rarely prosecuted, it identified 195 mandatory minimum statutes. Commission Report II, supra note 26 at 348. The first report had identified 60. Commission Report I, supra note 20 at 11. 31 18 U.S.C. § 3553(b)(1) (“ ... [T]the court shall impose a sentence of the kind, and within the range, [dictated by the Sentencing Guidelines,] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.”). 32 In United States v. Booker, 543 U.S. 220 (2005), the Court held that Sixth Amendment right to jury trial precluded mandatory application of the Guidelines, but permitted their discretionary application. Thereafter, it explained that “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.... [T]he district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.” United States v. Gall, 552 U.S. 38, 49-50 (2007). Thereafter, “the appellate court must review the sentence under the abuse of discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (improperly calculating) the Guidelines range.... ” id. at 51. 33 P.L. 111-220, § 2(a), 124 Stat. 2372 (2010). Prior to enactment, 5000 grams of powder cocaine or 50 grams of crack cocaine triggered the Controlled Substances Act’s 10-year mandatory minimum, 21 U.S.C. §§ 841(b)(1)(A)(ii) and (iii) (2006 ed.), and 500 grams of powder or 5 grams of crack triggered its 5-year mandatory minimum. Id. §§ 841(b)(1)(B)(ii) and (iii) (2006 ed.). The FSA established a 5000 grams to 280 gram ratio for the 10-year mandatory minimum, 21 U.S.C. §§ 841(b)(1)(A)(ii) and (iii), and a 500 grams to 28 gram ratio for the 5-year mandatory minimum. Id. §§ 841(b)(1)(B)(ii) and (iii). 34 18 U.S.C. § 924. 35 Commission Report II, supra note 26 at 355, 356, 364. 36 United States Sentencing Commission, Mandatory Minimum Penalties for Drug offenses in the Federal Criminal Justice System (October 2017). Congressional Research Service 4 Mandatory Minimum Sentencing of Federal Drug Offenses 3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentages of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010. 4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, the offenses of those who were tended to be more serious. 5. Drug mandatory minimum penalties applied more broadly than Congress may have anticipated. 6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties, and results in significant reduced sentences when applied. 7. Additionally, drug mandatory minimum penalties appear to provide criminal defendants with a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provisions of USSG §5K1.1. 8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f), nor the substantial assistance provision of 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders. 9. There were significant demographic shifts in the data relating to mandatory minimum penalties. 10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.37 Although each house devoted considerable attention to mandatory minimum sentencing and associated issues, the 114th Congress ended without consensus.38 Several proposals introduced in the 115th Congress address some of the same issues.39 Mandatory Minimums for Drug Crimes Table 1 below describes the mandatory minimum sentencing provisions for various drug and drug-related offenses.40 37 Id. at 4-8. See generally CRS Legal Sidebar, WSGL 1713, Sentencing Reform at the End of the 114th Congress, by (name re dacted). 39 E.g., S. 1917 (“Sentencing Reform and Corrections Act of 2017”); S. 1933 (“Smart Sentencing Act of 2017”); H.R. 3800 (“Mandatory Minimum Reform Act of 2017”); H.R. 4261 (“Safe, Accountable, Fair, Effective Justice Act”“). 40 For a chart listing the penalties for all federal controlled substance offenses see, CRS Report RL30722, Drug Offenses: Maximum Fines and Terms of Imprisonment for Violation of the Federal Controlled Substances Act and Related Laws, by (name redacted) . 38 Congressional Research Service 5 Mandatory Minimum Sentencing of Federal Drug Offenses Table 1. Federal Drug Offenses: Mandatory Minimum Terms of Imprisonment Substance Minimum Maximum 10 years life if death or serious injury results 20 years life with prior drug felony conviction 20 years life with prior drug felony conviction if death or serious injury results, or with two or more drug felony convictions life life Trafficking 841(b)(1)(B)/960(b)(2) substances (e.g., 100 grams or more of heroin) 5 years 40 years if death or serious injury results 20 years life repeat offender 10 years life repeat offender if death or serious injury results life life 20 years life life life Simple possession of a controlled substance with 1 prior conviction 15 days 2 years Simple possession of a controlled substance with 2 or more priors 90 days 3 years Drug kingpin 20 years life repeat offender 30 years life large operation (e.g., gross $10 million + per year) life life killing in furtherance 20 years life/death 1 year 2x usual penalty 3 years 3x for repeat offenders 1 year 2x usual penalty 3 years 3x usual penalty Narco-terrorism involving 841(b)(1) substances 2x usual minimum life Firearm possession in furtherance of drug trafficking (varying by use, firearm, recidivism) 7 years–life life Trafficking 21 U.S.C. § 841(b)(1)(A)/960(b)(1) substances (e.g., 1 kilo or more of heroin) Trafficking lesser amounts of 841(b)(1)/960(b) substances; other Schedule I or II substances; analogues; or date rape drugs: if death or serious injury results repeat offender if death or serious injury results Unless a higher minimum applies, distribution of a controlled substance to a pregnant woman, or using a child repeat offender Unless a higher minimum applies, distribution of a controlled substance proximate to a school or other prohibited location repeat offender Congressional Research Service 6 Mandatory Minimum Sentencing of Federal Drug Offenses Substance Unlawful firearm possession with 3 or more prior serious drug or violent felony convictions Serious violent felony with 2 or more prior serious drug and/or violent felony convictions Minimum Maximum 15 years life life life Source: CRS analysis of statutes cited below. Note: The same minimum and maximum penalties generally apply to attempt, conspiracy, or aiding and abetting the offenses described above. Features of Mandatory Minimum Drug Offenses Domestic Manufacture or Distribution (21 U.S.C. § 841(a)) Section 841(a) outlaws knowingly or intentionally manufacturing, distributing, dispensing, or possessing with the intent to distribute or dispense controlled substances except as otherwise authorized by the Controlled Substances Act. Knowingly or Intentionally The government may establish the knowledge element of Section 841(a) in either of two ways. First, the “knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the [controlled substance] schedules.” 41 Second, “[t]he knowledge requirement may also be met by showing that the defendant knew the identity of the substance he possessed. Take, for example, a defendant who knows that he is distributing heroin but does not know that heroin is listed on the schedules.” 42 As long as the government proves the defendant knows he was dealing in heroin, it need not prove that the defendant knew the particular type or quantity of the controlled substance he intended to distribute.43 When a defendant claims no guilty knowledge, the circumstances may warrant a willful blindness instruction to the jury. The willful blindness instruction, sometimes called the deliberate ignorance or “ostrich head in the sand” instruction, is warranted if “(1) the defendant claims lack of knowledge; (2) the evidence would support an inference that the defendant consciously engaged in a course of deliberate ignorance; and (3) the proposed instruction, as a whole, could not lead the jury to conclude that an inference of knowledge is mandatory.”44 41 McFadden v. United States, 135 S. Ct. 2298, 2304 (2015). See also United States v. Ways, 832 F.3d 887, 895 (8th Cir. 2016). 42 McFadden, 135 S. Ct. at 2304; Ways, 832 F.3d at 895. 43 United States v. Sanders, 668 F.3d 1298, 1310 (11th Cir. 2012) (“Although [for the mandatory minimums to apply] the jury must determine the quantity and type of drug involved, nothing in the statute, the Constitution, or Apprendi [v. New Jersey] requires the government to prove that the defendant had knowledge of the particular drug type or quantity for which a sentence is enhanced under § 841(b)”); see also United States v. Qattoum, 826 F.3d 1062, 1065 (8th Cir. 2016); United States v. Stanford, 823 F.3d 814, 834 (5th Cir. 2016); McPhearson v. United States, 675 F.3d 553, 561 (6th Cir. 2012); United States v. Branham, 515 F.3d 1268, 1275-76 (D.C. Cir. 2008); cf., United States v. Gil-Cruz, 808 F.3d 274, 278-79 (5th Cir. 2015) (holding the same with respect to parallel provisions under the Controlled Substances Import and Export Act (21 U.S.C. § 960)). 44 United States v. Ford, 821 F.3d 63, 74 (1st Cir. 2016). See also United States v. Trejo, 831 F.3d 1090, 1095 (8th Cir. 2016) (“A willful blindness or deliberate indifference instruction is appropriate when there is evidence to support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts.”); United States v. Haire, 806 F.3d 991, 998 (8th Cir. 2015) (“We reject Haire’s contention that the willful blindness instruction lowered the government’s burden of proof, because the district (continued...) Congressional Research Service 7 Mandatory Minimum Sentencing of Federal Drug Offenses Manufacture, Distribute, Dispense, or Possess Manufacture: For purposes of Section 841(a), “‘manufacture’ means the production … or processing of a drug, and the term ‘production’ includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.”45 Distribute or Dispense: The Controlled Substances Act defines the term “distribute” broadly. The term encompasses any transfer of a controlled substance other than dispensing it.46 It reaches both sales and transfers without compensation.47 To “dispense” is “to deliver a controlled substance to an ultimate user …by, or pursuant to the lawful order of, a practitioner…”48 The Controlled Substances Act outlaws practitioner’s proscribing controlled substances for other than legitimate medical purposes.49 Possession with Intent to Distribute or Dispense: The government may satisfy the possession element with evidence of either actual or constructive possession.50 “Actual possession is the knowing, direct, and physical control over a thing.”51 “Constructive possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object either directly or through others.”52 (...continued) court instructed the jury that it could not find he acted knowingly if he was merely negligent, careless, or mistaken as to the fact that his suitcase contained rug proceeds.”); United States v. Salinas, 763 F.3d 869, 880 (7th Cir. 2014) (“Deliberate avoidance is more than mere negligence; the defendant must have deliberately avoided acquiring knowledge of the crime being committed by cutting off his curiosity through an effort of the will. Evidence merely supporting a finding of negligence – that a reasonable person would have been strongly suspicious, or that a defendant should have been aware of criminal knowledge – does not support an inference that a particular defendant was deliberately ignorant.”). 45 United States v. Reveles-Espinoza, 522 F.3d 1044, 1047 (9th Cir. 2008) (citing 21 U.S.C. § 802(15), (22)). See also United States v. Bernitt, 392 F.3d 873, 879 (7th Cir. 2004). 46 United States v. Soto, 794 F.3d 635, 659 (6th Cir. 2015) (“Title 21 U.S.C. § 802(11) defines ‘distribute’ as ‘to deliver (other than by administering or dispensing) a controlled substance.’ Subsection eight defines ‘deliver’ as ‘the actual, constructive, or attempted transfer of a controlled substance.’”). 47 United States v. Bobadilla-Pagan, 747 F.3d 26, 32 (1st Cir. 2014) (“Nothing in the statute limits distribution to sale; rather it is well accepted that drugs may be distributed by giving them away for free.”). 48 21 U.S.C. § 802(10). 49 United States v. Moore, 423 U.S. 122, 124 (1975) (“We …hold that registered physicians can be prosecuted under § 841when their activities fall outside the usual course of professional practice.”). See also United States v. Azmat, 805 F.3d 1018, 1034 (11th Cir. 2015). 50 United States v. Ibarra-Diaz, 805 F.3d 908, 932 (10th Cir. 2015); United States v. Corrales-Portillo, 778 F.3d 823, 832 (8th Cir. 2015). 51 Id. 52 United States v. Apicelli, 839 F.3d 75, 79 (1st Cir. 2016). See also United States v. Simpson, 845 F.3d 1059-60 (10th Cir. 2017); United States v. Rebolledo-Delgadillo, 820 F.3d 870, 875 (7th Cir. 2016) (“Construction possession is a legal fiction hereby an individual is deemed to possess contraband items even when he does not actually have immediate, physical control of the objects…Constructive possession requires proof that the defendant had the power and intent to exercise ownership, dominion, authority, or control over the contraband.”); United States v. Facen, 812 F.3d 280, 287 (2d Cir. 2016) (internal citations omitted) (“Mere presence at the location of contraband does not establish possession. However, presence under a particular set of circumstances whim from a reasonable jury could conclude that the defendant constructively possessed contraband located there can support a conviction. Courts have considered a number of actors in determining whether a person has the power and intention to exercise dominion and control over narcotics, including: the presence of documents pertaining to the defendant in the same location as the narcotics; the defendant’s possession of a key to the location where the drugs are found; the defendant’s reaction to the presence of police; whether the defendant has compete control over the narcotics; and whether the drugs are in plain view, suggesting that the defendant is a trusted member of the narcotics operation.”). Congressional Research Service 8 Mandatory Minimum Sentencing of Federal Drug Offenses The escalating mandatory minimums that apply to offenders with “a prior conviction for a felony drug offense” extend to those offenses classified as misdemeanors under state law, but punishable by imprisonment for more than a year.53 They also apply even if the underlying state conviction has been expunged.54 On the other hand, there is apparently at least a division among the circuits over whether the government’s failure to comply with the procedure for establishing a prior conviction,55 and therefore to alert the defendant to the prospect of an enhanced mandatory minimum, precludes a sentencing court from taking prior conviction into account.56 Sentencing Sentencing for violations of Section 841(a) is governed by the nature and volume of the substance involved, the defendant’s criminal record, and injuries attributable to the offense.57 The most severe penalties are reserved for high-volume trafficking of eight substances assigned to Controlled Substance Schedules I and II.58 The eight substances are heroin, powder cocaine, cocaine base (crack), PCP, LSD, fentanyl, methamphetamine, and marijuana. Criminal penalties related to each substance provide one set of mandatory minimums for trafficking in a very substantial amount listed in Section 841(b)(1)(A), and a second, lower set of mandatory minimums for trafficking in a lower but still substantial amount listed in Section 841(a)(1)(B). The first set (841(b)(1)(A) level) features the following thresholds:       heroin - 1 kilogram;59 powder cocaine - 5 kilograms;60 crack - 280 grams;61 PCP - 100 grams;62 LSD - 10 grams;63 fentanyl - 400 grams;64 53 Burgess, v. United States, 553 U.S. 124, 126 (2008). United States v. Dyke, 718 F.3d 1282, 1292 (10th Cir. 2013). 55 21 U.S.C. § 851. 56 United States v, Isaac, 655 F.3d 148, 155-57 (3d Cir. 2011) (citing cases on either side of the divide). 57 As noted later and in the chart above, the sentencing provisions for violations of the Controlled Substances Export and Import Act, 21 U.S.C. § 960(b), mirror those for violations of the Controlled Substances Act in Section 841(b). 58 21 U.S.C. § 812. 59 Id. §§ 841(b)(1)(A)(i), 960(b)(1)(A) (“1 kilogram grams or more of a mixture or substance containing a detectable amount of heroin”) (10 grams = .35 ounces; 1 kilogram (1,000 grams) = 2.2 lbs.). 60 Id. §§ 841(b)(1)(A)(ii), 960(b)(1)(B) (“5 kilograms or more of a mixture or substance containing a detectable amount of- (I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (II) cocaine, its salts, optical and geometric isomers, and salts of isomers; (III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or (IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III)”). 61 Id. §§ 841(b)(1)(A)(iii), 960(b)(1)(C) (“280 grams or more of a mixture or substance described in clause (ii) which contains cocaine base”). 62 Id. §§ 841(b)(1)(A)(iv), 960(b)(1)(D) (“100 grams or more of phencyclidine (PCP) or 1 kilogram grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP)”). 63 Id. §§ 841(b)(1)(A)(v), 960(b)(1)(E) (“10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD)”). 54 Congressional Research Service 9 Mandatory Minimum Sentencing of Federal Drug Offenses   methamphetamine - 50 grams;65 marijuana - 1,000 kilograms.66 The second set (841(b)(1)(B) level) has thresholds that are one-tenth of those of the higher set:         heroin - 100 grams;67 powder cocaine - 500 grams;68 crack - 28 grams;69 PCP - 100 grams;70 LSD - 1 gram;71 fentanyl - 40 grams;72 methamphetamine - 5 grams;73 marijuana - 100 kilograms.74 A Section 841(a) violation involving one of the eight drugs at the higher 841(b)(1)(A) level is punishable by imprisonment for:  not less than 10 years; (...continued) Id. §§ 841(b)(1)(A)(vi), 960(b)(1)(F) (“400 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl ] propanamide or 10 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide”). 65 Id. §§ 841(b)(1)(A)(viii), 960(b)(1)(H) (“50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers”). 66 Id. §§ 841(b)(1)(A)(vii), 960(b)(1)(G) (“1000 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 1000 or more marihuana plants regardless of weight”). 67 Id. §§ 841(b)(1)(B)(i), 960(b)(2)(A) (“100 grams or more of a mixture or substance containing a detectable amount of heroin”) (10 grams = .35 ounces; 1 kilogram (1,000 grams) = 2.2 lbs.). Id. §§ 841(b) and 960(b) use the same thresholds. 68 Id. §§ 841(b)(1)(B)(ii), 960(b)(2)(B) (“500 grams or more of a mixture or substance containing a detectable amount of- (I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed; (II) cocaine, its salts, optical and geometric isomers, and salts of isomers; (III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or (IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III)”). 69 Id. §§ 841(b)(1)(B)(iii), 960(b)(2)(C) (“28 grams or more of a mixture or substance described in clause (ii) which contains cocaine base”). 70 Id. §§ 841(b)(1)(B)(iv), 960(b)(2)(D) (“10 grams or more of phencyclidine (PCP) or 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP)”). 71 Id. §§ 841(b)(1)(B)(v), 960(b)(2)(E) (“1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD)”). 72 Id. §§ 841(b)(1)(B)(vi), 960(b)(2)(F) (“40 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl ] propanamide or 10 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide”). 73 Id. §§ 841(b)(1)(B)(viii), 960(b)(2)(H) (“5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers”). 74 Id. §§ 841(b)(1)(B)(vii), 960(b)(2)(G) (“100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight.”). 64 Congressional Research Service 10 Mandatory Minimum Sentencing of Federal Drug Offenses   not less than 20 years if the offense results in death or serious bodily injury or if the offender has a prior felony drug conviction; and a mandatory term of life imprisonment if the offender has a prior felony drug conviction and the offense resulted in death or serious bodily injury or if the offender has two or more prior felony drug convictions.75 A Section 841(a) violation involving one of the eight drugs at the lower 841(b)(1)(B) level is punishable by imprisonment for:     not less than 5 years; not less than 10 years, if the offender has a prior felony drug conviction; not less than 20 years if the offense results in death or serious bodily injury; and a mandatory term of life imprisonment if the offender has a prior felony drug conviction and the offense resulted in death or serious bodily injury.76 A Section 841(a) violation involving one of the eight drugs in lesser amounts, or some other Schedule I or II drug, or a date rape drug is punishable by imprisonment for:   not less than 20 years if death or serious bodily injury results; and life if the offender has a prior felony drug conviction and death or serious bodily injury results.77 The felony drug convictions that trigger the sentencing enhancement include federal, state, and foreign convictions.78 The “serious bodily injury” enhancement is confined to bodily injuries which involve “(A) a substantial risk of death; (B) protracted and obvious disfigurement; or (C) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.”79 And, the “if death results” enhancement is available only if the drugs provided by the defendant were the “but-for” cause of death; it is not available if the drugs supplied were merely a contributing cause.80 The same “but for” standard presumably applies with equal force to the “serious bodily injury” enhancement. 75 Id. § 841(b)(1)(A). Id. § 841(b)(1)(B). 77 Id. § 841(b)(1)(C) (“In the case of a controlled substance in schedule I or II, gamma hydroxybutyric acid (including when scheduled as an approved drug product for purposes of section 3(a)(1)(B) of the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000), or 1 gram of flunitrazepam, except as provided in subparagraphs (A), [or] (B) ….”). The penalty is imprisonment for not more 20 years and there is no mandatory minimum where neither death nor serious bodily injury result. 76 78 Id.§ 802(44) (“The term ‘felony drug offense’ means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”). 79 Id. § 802(25). Burrage v. United States, 134 S. Ct. 881, 892 (2014); see also Santillana v. Upton, 846 F.3d 779, 781 (5th Cir. 2017); Krieger v. United States, 842 F.3d 490, 497 (7th Cir. 2016). 80 Congressional Research Service 11 Mandatory Minimum Sentencing of Federal Drug Offenses Attempt, Conspiracy, and Aiding and Abetting (21 U.S.C. § 846; 18 U.S.C. § 2) The mandatory minimums of Section 841 apply with equal force to those who attempt to possess with intent to distribute;81 who conspire to do so;82 or who aid and abet a violation of Section 841 by others.83 Attempt To prove an attempt to violate Section 841(a) “the government must establish beyond a reasonable doubt that the defendant (a) had the intent to commit the object crime and (b) engaged in conduct amounting to a substantial step towards its commission. For a defendant to have taken a substantial step, he must have engaged in more than mere preparation, but may have stopped short of the last act necessary for the actual commission of the substantive crime.”84 Conspiracy Conspiracy is an agreement to commit a crime.85 “To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy.”86 The existence of the conspiracy need not be shown by written agreement or any other form of direct evidence, but may be inferred from the circumstances.87 Moreover, each of the conspirators need not be fully aware of the roles or activities of all of their cohorts.88 Each conspirator, however, is punishable for the foreseeable offenses committed in furtherance of the common scheme.89 Although it technically demonstrates an agreement to distribute a controlled substance, proof of a small, one-time sale of a controlled substance is ordinarily not considered sufficient for a conspiracy conviction. “[T]he factors that demonstrate a defendant was part of a conspiracy rather than in a mere buyer/seller relationship with that conspiracy include: (1) the length of affiliation between the defendant and the conspiracy; (2) whether there is an established method of payment; (3) the extent to which transactions are standardized; (4) whether there is a 81 21 U.S.C. §§ 856, 963. Id. 83 18 U.S.C. § 2. 84 United States v. Anderson, 747 F.3d 51, 73-4 (2d Cir. 2014) (internal citations omitted). See also United States v. Stallworth, 656 F.3d 721, 728 (7th Cir. 2011); United States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011). 85 United States v. Lyle, 856 F.2d 191, 207 (2d Cir. 2017). 86 United States v. Jackson, 856 F.3d 1187, 1192 (8th Cir. 2017); see also United States v. Chapman, 851 F.3d 363,375 (5th Cir. 2017); United States v. Cardena, 842 F.3d 959, 994-95 (7th Cir. 2016); United States v. Williams, 827 F.3d 1134, 1162 (D.C. Cir. 2016). 87 United States v. Garcia-Lagunas, 835 F.3d 479, 490 (4th Cir. 2016) (“[G]iven the clandestine and covert nature of conspiracies, the government can prove the existence of a conspiracy by circumstantial evidence alone.”); Jackson, 856 F.3d at 1192; Chapman, 851 F.3d at 375; United States v. Trotter, 837 F.3d 864, 867-68 (8th Cir. 2016); Williams, 827 F.3d at 1162. 88 United States v. Bailey, 840 F.3d 99, 108 (3d Cir. 2016); United States v. Morales, 813 F.3d 1058, 1065 (8th Cir. 2016); United States v. Santos-Soto, 799 F.3d 49, 58 (1st Cir. 2015). 89 Pinkerton v. United States, 328 U.S. 640, 64748 (1946); United States v. Hare, 820 F.3d 93, 105 (4th Cir. 2016); United States v. Gadson, 763 F.3d 1189, 1214 (9th Cir. 2014). 82 Congressional Research Service 12 Mandatory Minimum Sentencing of Federal Drug Offenses demonstrated level of mutual trust; (5) whether the transactions involved large amounts of drugs; and (6) whether the defendant purchased his drugs on credit.”90 Aiding and Abetting Accomplices who aid and abet the crime of another receive the same punishment as the offender they assist.91 To prove, aiding and abetting, the government must show that the defendant knowingly embraced and assisted in the commission of the crime.92 Special Circumstances Trafficking offenses that ordinarily do not trigger mandatory minimum sentences may do so if they involve special circumstances. Thus, trafficking to pregnant women,93 children,94 or in proximity of a school, playground, or other prohibited location,95 or using a child to manufacture or traffic, are punishable with a one-year mandatory minimum term of imprisonment and in most instances a three-year mandatory minimum for repeat offenders.96 Import/Export Offenses Sections 960 and 963 of the Controlled Substances Import and Export Act,97 and by crossreference Section 70506 of the Maritime Drug Law Enforcement Act (MDLEA),98 largely track the penalties found in Section 841(b) of the Controlled Substances Act, including the mandatory minimum sentences of imprisonment. 90 Bailey, 840 F.3d at108. See also Trotter, 837 F.3d at 867-68 (“While proof of a conspiracy requires evidence of more than simply a buyer-seller relationship, we have limited the buyer-seller relationship cases to those involving only evidence of a single transient sales agreement and small amounts of drugs consistent with personal use.”); United States v. Lyle, 856 F.3d 191, 207-208 (2d Cir. 2017). 91 18 U.S.C. § 2. 92 United States v. Negron-Sostre, 790 F.3d 295, 311 (1st Cir. 2015) (internal citations omitted) (“[A] defendant may be held indirectly responsible as an aider and abettor if he associated himself with the venture … participated in it as something that he wished to bring about, and … sought by his actions to make the venture succeed.”); United States v. Sanchez, 789 F.3d 827, 838 (8th Cir. 2015); United States v. Boykin, 785 F.3d 1352, 1359 (9th Cir. 2015). 93 21 U.S.C. § 861(f), (b), (c). 94 Id. § 859. 95 Id. § 860 (“(a) Any person who violates section 841(a)(1) of this title ... by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b) of this section) subject to.... Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marihuana. (b) Any person who violates section 841(a)(1) of this title by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, ... or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, after a prior conviction under subsection (a) of this section has become final is punishable.... Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a person shall be sentenced under this subsection to a term of imprisonment of not less than three years.... ”). 96 Id. § 861(a), (b), (c). 97 Id. §§ 960, 963. 98 46 U.S.C. § 70506. Congressional Research Service 13 Mandatory Minimum Sentencing of Federal Drug Offenses Section 960 Section 960 sets the penalties for three categories of offenses: (1) importing or exporting a controlled substance in violation of 21 U.S.C. § 825 (labeling and packaging), § 952 (importing controlled substances), § 953 (exporting controlled substances), or § 967 (smuggling controlled substances); (2) possession of a controlled substance aboard a vessel or aircraft in violation of 21 U.S.C. § 955; and (3) possession with intent to distribute in violation of 21 U.S.C. § 959. Of these, violations of Sections 952 and 959 appear to be the most commonly prosecuted. “To sustain a conviction for the importation of a controlled substance[under Section 952], the government must prove: (1) the defendant played a role in bringing a quantity of a controlled substance into the United States; (2) the defendant knew the substance was controlled; and (3) the defendant knew the substance would enter the United States.”99 The government, however, need not prove that the defendant knew which controlled substance was being imported or its quantity.100 Section 959 proscribes two offenses: manufacturing or distributing a controlled substance for import purposes101 and possession aboard an aircraft by a U.S. citizen or aboard a U.S. aircraft.102 The section specifically states that it governs offenses committed outside the territory of the United States.103 Attempt, Conspiracy, and Aiding and Abetting Section 963 outlaws attempts and conspiracies to violate the prohibitions covered by Section 960, and calls for the same penalties, including mandatory minimums, as apply to the underlying substantive offenses. Maritime Drug Law Enforcement Act (MDLEA) (46 U.S.C. §§ 70503, 70506) MDLEA outlaws possession of a controlled substance aboard a vessel subject to U.S. jurisdiction or attempting or conspiring to do so.104 Here too, violations carry the same penalties, including mandatory minimums, as the underlying substantive offenses.105 The term “vessel subject to the jurisdiction of the United States” includes vessels within U.S. territorial or customs waters, and vessels of foreign registration or vessels located in foreign territorial waters when the foreign nation has consented to application of U.S. law, as well as vessels for which no claim of registration or false claim of registration is presented.106 Most of the lower federal appellate courts to consider the issue have held that the government need not establish any other nexus to the United States.107 The type and volume of controlled substances 99 United States v. Lopez-Monzon, 850 F.3d 202, 206 (5th Cir. 2017). United States v. Gil-Cruz, 808 F.3d 274, 278-79 (5th Cir. 2015); United States v. Jefferson, 791 Fl.3d 1013, 1016-18 (9th Cir. 2015). 101 21 U.S.C. § 959(a); e.g., United States v. Rojas, 812 F.3d 382, 399-400 (5th Cir. 2016); United States v. RomeroPadilla, 583 F.3d 126, 129-30 (2d Cir. 2009). 102 21 U.S.C. § 959(b), e.g., United States v. Lawrence, 727 F.3d 386, 390-95 (5th Cir. 2013). 103 21 U.S.C. § 959(c). 104 46 U.S.C. §§ 70503, 70506(b). 105 Id. § 70506(a). 106 Id. § 70502(c). 107 United States v. Wilchcombe, 838 F.3d 1179, 1186 (11th Cir. 2016) (citing United States v. Suerte, 291 F.3d 366, 369-72 (5th Cir. 2002); United States v. Cardales, 168 F.3d 548, 553 (1st Cir. 1999); United States v. Martinez(continued...) 100 Congressional Research Service 14 Mandatory Minimum Sentencing of Federal Drug Offenses ordinarily involved in MDLEA cases usually trigger the more severe mandatory minimum sentences.108 Narco-Terrorism (21 U.S.C. § 960a) Section 960a doubles the otherwise applicable mandatory minimum sentence for drug trafficking (including an attempt or conspiracy to traffic) when the offense is committed in order to fund a terrorist activity or terrorist organization.109 The merge of drug trafficking and terrorism offenses in Section 960a does not preclude conviction of the defendant for drug trafficking and terrorism offenses as well.110 Here, too, the controlled substances involved ordinarily carry their own mandatory minimum term of imprisonment.111 Drug Kingpin (21 U.S.C. § 848) Conviction of a Continuing Criminal Enterprise (CCE or Drug Kingpin) offense results in imposition of a 20-year mandatory minimum; the mandatory minimum for repeat offenders is 30 years.112 Drug kingpins of enormous enterprises, however, face a mandatory sentence of life imprisonment.113 To secure a conviction, the government must establish, “1) a felony violation of the federal narcotics laws; 2) as part of a continuing series of three or more related felony violations of federal narcotics laws; 3) in concert with five or more other persons; 4) for whom [the defendant] is an organizer, manager or supervisor; [and] 5) from which [the defendant] derives substantial income or resources.”114 (...continued) Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993); contra, United States v. Klimavicius-Viloria, 144 F.3d 1249, 1257 (9th Cir. 1998)). 108 E.g., United States v. Trinidad, 839 F.3d 112, 114 (1st Cir. 2016) (114 kilograms of cocaine); Wilchcombe, 838 F.3d at 1183 (more than five kilograms of cocaine and more than 100 kilograms of marijuana); United States v. Cruickshank, 837 F.3d 1182, 1187 (11th Cir. 2016) (more than five kilograms of cocaine); United States v. CruzMendez, 811 F.3d 1172, 1173 (9th Cir. 2016) (568 kilograms of marijuana); United States v. Pena-Santo, 809 F.3d 686, 691-92 (1st Cir. 2015) (more than 150 kilograms of cocaine). 109 21 U.S.C. §§ 960a, 963. 110 United States v. Garavito-Garcia, 827 F.3d 242, 244, 249-50 (2d Cir. 2016) (conviction under 21 U.S.C. § 960a, as well as, 21 U.S.C. § 963 (conspiracy to import cocaine), 18 U.S.C. § 2339B (conspiracy to provide material support to a terrorist organization), and 18 U.S.C. § 2332g (conspiracy to traffic in anti-aircraft missiles); cf. United States v. Mohammed, 693 F.3d 192, 197 (D.C. Cir. 2012) (conviction under 21 U.S.C. § 960a and 21 U.S.C. § 959 (distribution of controlled substances with the intent to import into the United States). 111 E.g., Garavito-Garcia, 827 F.3d at 244 (“ton-quantities” of cocaine); Mohammed, 693 F.3d at 195 (two kilograms of heroin). 112 21 U.S.C. § 848(a). 113 Id. § 848(b) (“Any person who engages in a continuing criminal enterprise shall be imprisoned for life and fined in accordance with subsection (a), if - (1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and (2)(A) the violation referred to in subsection (c)(1) involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title, or (B) the enterprise, or any other enterprise in which the defendant was the principal or one of several principal administrators, organizers, or leaders, received $10 million dollars in gross receipts during any twelve-month period of its existence for the manufacture, importation, or distribution of a substance described in section 841(b)(1)(B).”). 114 United States v. Lee, 687 F.3d 935, 940 (8th Cir. 2012); see also, United States v. Bostick, 791 F.3d 127, 1490 (D.C. Cir. 2015); United States v. Isaac, 655 F.3d 148, 154 (3d Cir. 2011). Congressional Research Service 15 Mandatory Minimum Sentencing of Federal Drug Offenses The homicide mandatory minimum found in the drug kingpin statute sets a 20-year minimum term of imprisonment for killings associated with a kingpin offense or for killings of law enforcement officers associated with certain other controlled substance offenses.115 Neither prohibition requires the defendant to have been manufacturing or distributing controlled substances at the time of the killing.116 Drug-Related Mandatory Minimums Firearm Possession in Furtherance (18 U.S.C. § 924(c)) Mandatory minimums are found in two federal firearms statutes. One, the Armed Career Criminal Act, deals exclusively with recidivists.117 The other, Section 924(c), attaches one of several mandatory minimum terms of imprisonment whenever a firearm is used or possessed during and in relation to a federal crime of violence or drug trafficking.118 Section 924(c), in its current form, establishes one of several different minimum sentences when a firearm is used or possessed in furtherance of another federal crime of violence or drug trafficking. The mandatory minimums must be imposed in addition to any sentence imposed for the underlying crime of violence or drug trafficking and vary depending upon the circumstances:    imprisonment for not less than five years, unless one of the higher mandatory minimums below applies; imprisonment for not less than seven years if a firearm is brandished; imprisonment for not less than 10 years if a firearm is discharged; 115 21 U.S.C. § 848(e); United States v. Hager, 721 F.3d 167, 179-80 (4th Cir. 2013) (citing United States v. Aguilar, 585 F.3d 652, 657 (2d Cir. 2009) (internal citations and quotation marks omitted)(“There are three prongs to this statue. The first prong covers those who intentionally kill someone while engaged in a CCE. The second prong concerns the one who intentionally kills another while working in furtherance of a CCE. And, the third prong envelops that person who intentionally kills another while engaged in an offense punishable under section 841(b)(1)(A) ... or section 960(b)(1).”). Hager and Aguilar describe 21 U.S.C. § 848(e)(1)(A). Section 848(e)(1)(B) establishes the same 20-year mandatory minimum for a killing of a police officer in the line of duty when committed in furtherance or to avoid punishment for any violation of the Controlled Substances or Controlled Substances Import and Export Acts. 116 United States v. Barrett, 797 F.3d 1207, 1219 (10th Cir. 2015); United States v. Pierce, 785 F.3d 832, 839 (2d Cir. 2015) (“The government need only prove beyond a reasonable doubt that one motive for the killing … was related to the drug conspiracy.”). 117 18 U.S.C. § 924(e). 118 Id. § 924(c). Section 924(c) has been the subject of repeated Supreme Court litigation and regular congressional amendment since its inception in 1968. However, the crime of violence prong of the section, rather than the drug trafficking prong, has been the scene of most of the activity. See United States v. O’Brien, 560 U.S. 218, 221 (2010) (“The Court must interpret, once again, §924(c) of Title 18 of the United States Code”); Dean v. United States, 137 S. Ct. 1170 (2017); Rosemond v. United States, 134 S. Ct. 1240 (2014); Alleyne v. United States, 133 S. Ct. 2151 (2013); United States v. Abbott, 562 U.S.18 (2010); Dean v. United States, 556 U.S. 568 (2009); Watson v. United States, 552 U.S. 74 (2007); Harris v. United States, 536 U.S. 545 (2002); Castillo v. United States, 530 U.S. 120 (2000); Mascarello v. United States, 524 U.S. 125 (1998); United States v. Gonzales, 520 U.S. 1 (1997); Bailey v. United States, 516 U.S. 137 (1995); Smith v. United States, 508 U.S. 223 (1993); Deal v. United States, 508 U.S. 129 (1993); P.L. 90-618, 82 Stat. 1223 (1968), 18 U.S.C. § 924(c)(1970 ed.); P.L. 91-644, §13, 84 Stat. 1889 (1971), 18 U.S.C. § 924(c) (1976 ed.); P.L. §1005, 98 Stat. 2138 (1984), 18 U.S.C. § 924(c) (1982 ed.) (Supp. II); P.L. 99-308, 100 Stat. 457 (1986), 18 U.S.C. § 924(c) (1982 ed.) (Supp. IV); P.L. 100-690, §6460, 102 Stat. 4373 (1988), 18 U.S.C. § 924(c) (1988 ed.); P.L. 101-647, §1101,104 Stat. 4829 (1990), 18 U.S.C. § 924(c) (1988 ed.) (Supp. II); P.L. 105-386, §1, 112 Stat. 3469 (1998), 18 U.S.C. § 924(c) (2000 ed.); P.L. 109-92, §6(b), 119 Stat. 2102 (2005), 18 U.S.C. § 924(c)(2000 ed.) (Supp. V). Congressional Research Service 16 Mandatory Minimum Sentencing of Federal Drug Offenses      imprisonment for not less than 10 years if a firearm is a short-barreled rifle or shotgun or is a semi-automatic weapon; imprisonment for not less than 15 years if the offense involves the armor piercing ammunition; imprisonment for not less than 25 years if the offender has a prior conviction for violation of Section 924(c); imprisonment for not less than 30 years if the firearm is a machine gun or destructive device or is equipped with a silencer; and imprisonment for life if the offender has a prior conviction for violation of Section 924(c) and if the firearm is a machine gun or destructive device or is equipped with a silencer.119 Features Firearm Section 924(c) outlaws possession of a firearm in furtherance of, or use of a firearm during and in relation to, a predicate offense. A “firearm” for purposes of Section 924(c) includes not only guns (“weapons ... which will or [are] designed to or may readily be converted to expel a projectile by the action of an explosive”), but silencers and explosives as well.120 It includes firearms that are not loaded or that are broken.121 It does not include toys or imitations.122 Nevertheless, the government need not produce the gun itself at trial. It need do no more than “present sufficient testimony, including the testimony of lay witnesses, in order to prove beyond a reasonable doubt that a defendant used, possessed or carried a ‘firearm’ as that term is defined for purposes of §924(c).”123 Yet conviction must rest on some evidence of the presence of a firearm.124 Predicate Offenses Section 924(c) is triggered when a firearm is used or possessed in furtherance of a predicate offense. The predicate offenses are crimes of violence and certain drug trafficking crimes. The drug trafficking predicates include any felony violation of the Controlled Substances Act, the 119 18 U.S.C. § 924(c)(1), (5). Id. § 921(a)(3), (4) (“(3) The term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; ... (C) any firearm muffler or firearm silencer; or (D) any destructive device.... (4) The term ‘destructive device’ means - (A) any explosive, incendiary, or poison gas - (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses ...”). E.g., United States v. York, 600 F.3d 347, 354 (5th Cir. 2010) (Molotov cocktail constitutes a firearm for purposes of § 924(c)); United States v. Tomkins, 782 F.3d 338, 345 (7th Cir. 2015) (pipe bombs constitute firearms for purposes of § 924(c)). 121 United States v. Cooper, 714 F.3d 873, 881 (5th Cir. 2013). 122 United States v. Garrido, 596 F.3d 613, 617 (9th Cir. 2010) (“Possession of a toy or replica gun cannot sustain a conviction under § 924(c)”); see also United States v. Martinez-Armestica, 846 F.3d 436, 440 (1st Cir. 2017); United States v. Lawson, 810 F.3d 1032, 1039 (7th Cir. 2016). 123 United States v. King, 751 F.3d 1268,1274 (11th Cir. 2014); see also Lawson, 810 F.3d at 1039-40; United States v. Sherer, 770 F.3d 407, 412 (6th Cir. 2014); United States v. Kamahele, 748 F.3d 984, 1010 (10th Cir. 2014). 124 United States v. Feliciano, 761 F.3d 1202, 1212 (11th Cir. 2014). 120 Congressional Research Service 17 Mandatory Minimum Sentencing of Federal Drug Offenses Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act.125 A defendant may be convicted under Section 924(c), however, even though not convicted or even prosecuted for the predicate offense.126 Possession in Furtherance Section 924(c) has two alternative firearm-nexus elements: (a) possession in furtherance and (b) carrying or use.127 The possession-in-furtherance version of the offense requires that the defendant “(1) committed a drug trafficking crime; (2) knowingly possessed a firearm; and (3) possessed the firearm in furtherance of the drug trafficking crime [or other predicate offense].”128 The “possession” component may take the form of either actual or constructive possession. “Constructive possession exists when a person does not have possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.”129 The “in furtherance” component compels the government to show some nexus between possession of a firearm and a predicate offense – that is, to show that the firearm furthered, advanced, moved forward, promoted, or in some way facilitated the predicate offense. 130 This requires more than proof of the presence of a firearm in the same location as the predicate offense.131 Most circuits have identified specific factors that commonly allow a court to distinguish guilty possession from innocent “possession at the scene,” particularly in a drug case, they include “(1) type of criminal activity that is being conducted; (2) accessibility of the firearm; (3) the type of firearm; (4) whether the firearm is stolen; (5) the status of the possession (legitimate or illegal); (6) whether the firearm is loaded; (7) the time and circumstances under which the firearm is found; and (8) the proximity to the drugs or drug profits.”132 125 18 U.S.C. § 924(c)(2), referring to 21 U.S.C. §§ 801-904, 21 U.S.C. §§ 951-971, and 46 U.S.C. §§ 70501-70507, respectively. See, e.g., United States v. Chapman, 851 F.3d 363, 372-73 (5th Cir. 2017); United States v. RiveraRuperto, 846 F.3d 417, 423 (1st Cir. 2017). 126 United States v. Galati, 844 F.3d 152, 155 (3d Cir. 2016); Davila v. United States, 843 F.3d 729, 730-31 (7th Cir. 2016). 127 United States v. Burnett, 773 F.3d 122, 134 (3d Cir. 2014) (“Section 924(c) has two separate prongs, the violation of either standing alone is sufficient to support a conviction under the statute: (1) ‘us[ing] or carry[ing]’ a firearm ‘during and in relation to’ the underlying offense; or (2) ‘possess[ing] a firearm ‘in furtherance’ of the underlying offense.... By making this distinction, Congress may well have intended ‘in furtherance’ to impose a more stringent standard than ‘in relation to.’”). 128 United States v. Bobadilla-Pagan, 747 F.3d 26, 35 (1st Cir. 2014); see also United States v. Ramos, 852 F.3d 747, 753 (8th Cir. 2017); United States v. Bailey, 840 F.3d 99, 112 (3d Cir. 2016); United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011). 129 United States v. Taylor, 800 F.3d 701, 709(6th Cir. 2015); see also United States v. Fernandez-Santos, 856 F.3d 10, 20 (1st Cir. 2017); United States v. Webster, 775 F.3d 897, 905-906 (7th Cir. 2015); United States v. Booker, 774 F.3d 928, 929-31 (8th Cir. 2014). 130 United States v. Green, 835 F.3d 844, 854 (8th Cir. 2016); United States v. Ray, 803 F.3d 244, 263 (6th Cir. 20150; United States v. Pineda, 770 F.3d 313, 317 (4th Cir. 2014); United States v. Renteria, 720 F.3d 1245, 1255 (10th Cir. 2013); United States v. Eller, 670 F.3d 762, 765 (7th Cir. 2012); United States v. Pena, 586 F.3d 105, 113 (1st Cir. 2009); United States v. London, 568 F.3d 553, 559 (5th Cir. 2009); United States v. Lopez-Garcia, 565 F.3d 1306, 1322 (11th Cir. 2009). 131 United States v. Russian, 848 F.3d 1239, 1250 (10th Cir. 2017); Eller, 670 F.3d at 765; United States v. Pena, 586 F.3d at 113; United States v. Penney, 576 F.3d 297, 315 (1st Cir. 2009). 132 Russian, 848 F.3d at 1250; see also United States v. Amaya, 828 F.3d 518 (7th Cir. 2016); United States v. Holley, 831 F.3d 322, 329 (5th Cir. 2016); Renteria, 720 F.3d at 1255; United States v. Brown, 715 F.3d 985, 993-94 (6th Cir. 2013); United States v. Johnson, 677 F.3d 138, 143 (3d Cir. 2012); Lopez-Garcia, 565 F.3d at 1322; United States v. (continued...) Congressional Research Service 18 Mandatory Minimum Sentencing of Federal Drug Offenses Although the Supreme Court has determined that acquiring a firearm in an illegal drug transaction does not constitute “use” in violation of Section 924(c),133 several of the circuits have found that such acquisition may constitute “possession in furtherance.”134 Use or Carry The “use” outlawed in the use or carriage branch of Section 924(c) requires that a firearm be actively employed “during and in relation to” a predicate offense – that is, either a crime of violence or a drug trafficking offense.135 A defendant “uses” a firearm during or in relation to a drug trafficking offense when he uses it to acquire drugs in a drug deal;136 when he uses it as collateral in a drug deal;137 or when he sells both drugs and firearms;138 but not when he accepts a firearm in exchange for drugs in a drug deal.139 The “carry[ing]” that the section outlaws encompasses instances when a firearm is carried on the defendant’s person as well as when it is simply readily accessible in a vehicle during and in relation to a predicate offense.140 A firearm is used or carried “during and in relation” to a predicate offense when it has “some purpose or effect with respect” to the predicate offense; “its presence or involvement cannot be the result of accident or coincidence.”141 The government must show that the availability of the (...continued) Perry, 560 F.3d 246, 254 (4th Cir. 2009); see also United States v. Chavez, 549 F.3d 119, 130 (2d Cir. 2008) (noting after quoting the factors that, “while no conviction would lie for a drug dealer’s innocent possession of a firearm, ... a drug dealer may be punished under § 924(c)(1)(A) where the charged weapon is readily accessible to protect drugs, drug proceeds, or the drug dealer himself”); but see United States v. Hector, 474 F.3d 1150, 1157 (9th Cir. 2007) (internal citations omitted) (“Although the Fifth Circuit has developed a non-exclusive list of factors ... we have concluded that this approach is not particularly helpful in close cases.... In our most recent case addressing the ‘in furtherance question,’ we reiterated the importance of the factual inquiry. We declined once again to adopt a checklist approach to deciding this issue and held that it is the totality of the circumstances, coupled with a healthy dose of a jury’s common sense when evaluating the facts in evidence, which will determine whether the evidence suffices to support a conviction.”). 133 Watson v. United States, 552 U.S. 74 (2007). 134 United States v. Gurka, 605 F.3d 40, 44 (1st Cir. 2010) (“We join the ... circuits holding that Watson does not affect the prong of 18 U.S.C. § 924(c)(1)(A) concerned with ‘possession in furtherance.’”) (citing United States v. Gardner, 602 F.3d 97, 103 (2d Cir. 2010) and United States v. Mahan, 586 F.3d 1185, 1189 (9th Cir. 2009)); see also United States v. Miranda, 666 F.3d 1280, 1282-284 (11th Cir. 2012); United States v. Dickerson, 705 F.3d 683, 688-90 (7th Cir. 2013). 135 Bailey v. United States, 516 U.S. 137, 143 (1995); United States v. Isnadin, 742 F.3d 1278, 1307 (11th Cir. 2014); United States v. Haynes, 582 F.3d 686, 704 (7th Cir. 2009); United States v. Combs, 369 F.3d 925, 932 (6th Cir. 2004). 136 Smith v. United States, 508 U.S. 223, 228 (1993); Bailey, 516 U.S. at 148. 137 United States v. Cox, 324 F.3d 77, 82 (2d Cir. 2003). 138 United States v. Benitiz, 809 F.3d 243, 248 (5th Cir. 2015). 139 Watson, 552 U.S. at 78. 140 Muscarello v. United States, 524 U.S. 125, 126 (1998) (“The question before us is whether the phrase ‘carries a firearm’ is limited to the carrying of firearms on the person. We hold that it is not so limited. Rather, it also applies to a person who knowingly possesses and carries a firearm in a vehicle, including locked in a glove compartment or trunk of a car, which the person accompanies”); United States v. Franklin, 561 F.3d 398, 403 (5th Cir. 2009); United States v. Winder, 557 F.3d 1129, 1138-139 (10th Cir. 2009); United States v. Robinson, 390 F.3d 853, 878 (6th Cir. 2005); United States v. Williams, 344 F.3d 365, 370 (3d Cir. 2003). 141 United States v. Henry, 819 F.3d 856, 865 (6th Cir. 2016); United States v. Mashek, 606 F.3d 922, 930 (8th Cir. 2010) (quoting Smith v. United States, 508 U.S. 223, 238 (1993)); United States v. Roberson, 459 F.3d 39, 48 (1st Cir. 2006); Williams, 344 F.3d at 371. Congressional Research Service 19 Mandatory Minimum Sentencing of Federal Drug Offenses firearm played an integral role in the predicate offense.142 It need not show that the firearm was used “in furtherance” of the predicate offense.143 Discharge and Brandish The basic five-year mandatory minimum penalty for using, carrying, or possessing a firearm in the course of a predicate offense becomes a seven-year mandatory minimum if a firearm was brandished during the course of the offense and becomes a 10-year mandatory minimum if a firearm was discharged during the course of the offense.144 The discharge provision applies even if the firearm was discharged inadvertently.145 Whether a firearm is discharged or brandished is a question that after Alleyne v. United States must be presented to the jury and proven beyond a reasonable doubt.146 A firearm is brandished for these purposes when (1) it is displayed or its presence made known (2) in order to intimidate another.147 Intimidation is a necessary feature of brandishing, but it is no less present when the fear is induced by using a gun as a club rather than merely displaying it.148 Short Barrels, Semiautomatics, Machine Guns, and Bombs For some time, Section 924(c) consisted of a single long paragraph with brandishing, discharging, short barrels, semiautomatics, machine guns, and bombs all in the same paragraph. When Congress added the “possession in furtherance” language, it parsed the section. Now, the general, brandish, and discharge mandatory penalties provisions appear in one part.149 The provisions for 142 United States v. Burkley, 513 F.3d 1183, 1189-90 (10th Cir,. 2008) (“A firearm is carried during and in relation to the underlying crime when the defendant avails himself of the weapon and ... the weapon plays an integral role in the underlying offense.... Thus, the government must prove that the defendant intended the firearm to be available for use in the offense.”). 143 United States v. Burnett, 773 F.3d 122, 134 (3d Cir. 2014); cf. United States v. Barnes, 822 F.3d 914, 918 (6th Cir. 2016) (noting that “possession in furtherance” or “using or carrying during and in relation to” are two distinct crimes). 144 18 U.S.C. § 924(c)(1)(A)(ii), (iii). 145 Dean v. United States, 556 U.S. 568, 574 (2009); United States v. Mann, 786 F.3d 1244, 1251 (10th Cir. 2015). 146 Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013) (“Because the finding of brandishing increased the penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt”). Alleyne overruled Harris, which had held that brandishing was a sentencing factor that might be entrusted to the judge to find by a preponderance of the evidence (Harris v. United States, 535 U.S. 545, 556 (2002)); United States v. Cardena, 842 F.3d 959, 1000-1001 (7th Cir. 2016); United States v. Lewis, 802 F3.d 449, 454 (3d Cir. 2015); United States v. Hackett, 762 F.3d 493, 502 (6th Cir. 2014); United States v. King, 751 F.3d 1268, 1278-280 (11th Cir. 2014). The fact of a second or subsequent conviction, however, remains a sentencing factor, because the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998), to that effect has not been withdrawn, King, 751 F.3d at 1280 (citing Alleyne v. United States, 133 S. Ct. at 2160 n.1); Cardena, 842 F.3d at 1000. 147 18 U.S.C. § 924(c)(4) (“For purposes of this subsection, the term ‘brandish’ means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person”); Cardena, 842 F.3d at 1001; United States v. Gonzales, 841 F.3d 339, 353 (5th Cir. 2016); United States v. Carter, 560 F.3d 1107, 1114 (9th Cir. 2009); United States v. Payne, 763 F.3d 1301, 1304-1305 (11th Cir. 2014). 148 United States v. Bowen, 527 F.3d at 1075 (10th Cir. 2008). 149 18 U.S.C. § 924(c)(1) (emphasis added) (“(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime - (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of (continued...) Congressional Research Service 20 Mandatory Minimum Sentencing of Federal Drug Offenses offenses involving a short-barreled rifle or shotgun, a semiautomatic assault weapon, a silencer, a machine gun, or explosives appear in a second part.150 The provisions for second and consequent convictions appear in a third part.151 The circuits are apparently divided over the question of whether the government must show that the defendant knew that the firearm at issue was of a particular type (i.e., short-barreled rifle or shotgun, machine gun, or bomb).152 Prior to the division, the Supreme Court had identified as an element of a separate offense (rather than a sentencing factor) the question of whether a machine gun was the firearm used during and in relation to a predicate offense.153 The use of a short-barreled rifle, semiautomatic assault weapon, silencer, machine gun, or bomb is not a sentencing factor, but an element of a separate offense to be charged and proved to the jury beyond a reasonable doubt.154 The question of whether a second or subsequent conviction has occurred, however, remains a sentencing factor.155 Aiding, Abetting, and Conspiracy As a general rule, anyone who commands, counsels, aids, or abets the commission of a federal crime by another is punishable as though he had committed the crime himself.156 “In order to aid and abet another to commit a crime it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.”157 The Supreme Court has said in Rosemond v. United States that to aid or abet a violation of Section 924(c), the assistance may be shown to have advanced either the predicate offense or the firearm use.158 However, the defendant must be shown to have intended his efforts contribute to the success of the Section 924(c) violation – that is, commission of a predicate offense while (...continued) imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years ...”). 150 18 U.S.C. § 924(c)(1)(B) (“If the firearm possessed by a person convicted of a violation of this subsection - (i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or (ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.... ”). 151 Id. § 924(c)(1)(C) (“In the case of a second or subsequent conviction under this subsection, the person shall - (i) be sentenced to a term of imprisonment of not less than 25 years; and (ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.”). 152 United States v. Burwell, 690 F.3d 500, 510-11 (D.C. Cir. 2012) (citing cases evidencing a split). 153 Castillo v. United States, 530 U.S. 120, 121 (2000). 154 United States v. O’Brien, 560 U.S. 218, 235 (2010). 155 United States v. Rivera-Rivera, 555 F.3d 277, 291 (1st Cir. 2009); United States v. Mejia, 545 F.3d 179, 207-208 (2d Cir. 2008). This is true even after Alleyne, because the Court continues to recognize a recidivist exception to the Apprendi rule, see, e.g., Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (“In Almendarez-Torres v. United States, 523 U.S. 224 (1998), we recognized a narrow exception to this general rule for the fact of a prior conviction. Because the parties do not contest that decision’s vitality, we do not revisit it for purposes of our decision today.”). 156 18 U.S.C. § 2. 157 Nye & Nissen v. United States, 336 U.S. 613, 619 (1949); see also United States v. Centeno, 793 F.3d 378, 387 (3d Cir. 2015); United States v. Sosa, 777 F.3d 1279, 1292 (11th Cir. 2015) (“Thus, to convict under a theory of aiding and abetting, the government must prove that (1) someone committed the substantive offense; (2) the defendant contributed to and furthered the offense; and (3) the defendant intended to aid in its commission.”). 158 Rosemond v. United States, 134 S. Ct. 1240, 1247 (2014)(“Rosemond therefore could assist in § 924(c)’s violation by facilitating either the drug transaction or the firearms use (or of course both.”). Congressional Research Service 21 Mandatory Minimum Sentencing of Federal Drug Offenses armed.159 Thus, the defendant must be shown to have known before the commission of the predicate offense that his confederate was armed.160 In similar manner, conspirators are liable for any foreseeable crimes committed by any of their co-conspirators in furtherance of the conspiracy.161 The rule applies when a defendant’s coconspirator has committed a violation of Section 924(c).162 Sentencing Considerations The penalties under Section 924(c) were once flat sentences. For example, the penalty for use of a firearm during the course of a predicate offense was a five-year term of imprisonment.163 Now, they are simply mandatory minimums, each carrying an unspecified maximum term of life imprisonment.164 A court may not avoid the mandatory minimums called for in Section 924(c)(1) by imposing a probationary sentence,165 or by ordering that a Section 924(c)(1) minimum mandatory sentence be served concurrently with some other sentence.166 A court may, however, take Section 924(c)’s mandatory minimum into account when calculating the appropriate sentence for the underlying predicate offense.167 If a criminal episode involves more than one predicate offense, more than one violation of Section 924(c) may be punished.168 Moreover, the second or subsequent convictions which trigger enhanced mandatory minimum penalties need not be the product of separate trials, but may be part of the same verdict. Thus, a defendant charged and convicted in a single trial on several counts may be subject to multiple, consecutive, mandatory minimum terms of imprisonment. 169 159 Id. at 1248(“[A] person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense’s commission.... [T]he intend must go to the specific and entire crime charged—so here, to the full scope (predicate crime plus gun use) of § 924(c).”). 160 Id. at 1249; United States v. Diaz-Rodriguez, 853 F.3d 540, 544-45 (1st Cir. 2017); United States v. Gooch, 850 F.3d 285, 287 (6th Cir. 2017). 161 Pinkerton v. United States, 328 U.S. 640, 646 (1946); Smith v. United States, 133 S. Ct. 718, 719 (2013). 162 United States v. Bailey, 784 F.3d 99, 112 (3d Cir. 2016); United States v. Hare, 8120 F.3d 93, 105 (4th Cir. 2016); United States v. Soto, 794 F.3d 635, (6th Cir. 2015); United States v. Adams, 789 F.3d 713, 715 (7th Cir. 2015); United States v. Reed, 780 F.3d 272, 272 (4th Cir. 2015) (“A defendant may be convicted on a § 924(c) charge on the basis of a coconspirator’s use of a gun if the use was in furtherance of the conspiracy and was reasonable foreseeable to the defendant.”). 163 18 U.S.C. § 924(c) (1976 ed.). 164 United States v. Lara-Ruiz, 781 F.3d 919, 924 (8th Cir. 2015); United States v. Diaz-Bermudez, 778 F.3d 309, 31314 (1st Cir. 2015); United States v. Shabazz, 564 F.3d 280, 289 (3d Cir. 2009) (citing United States v. Johnson, 507 F.3d 793, 798 (2d Cir. 2007); United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005); United States v. Avery, 295 F.3d 1158, 1170 (10th Cir. 2002); United States v. Cristobal, 293 F.3d 134, 147 (4th Cir. 2002); United States v. Sandoval, 241 F.3d 549, 551 (7th Cir. 2001); United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000); United States v. Silas, 227 F.3d 244, 246 (5th Cir. 2000). 165 18 U.S.C. § 924(c)(1)(D)(i). 166 Id. § 924(c)(1)(D)(ii). Dean v. United States, 137 S. Ct. 1170, 1174 (2017). 167 Id. at 1178. 168 United States v. Sandstrom, 594 F.3d 634, 658 (8th Cir. 2010) (“... [M]ultiple underlying offenses support multiple §924(c) convictions”); United States v. Catalan-Roman, 585 F.3d 453, 472 (1st Cir. 2009); United States v. Penny, 576 F.3d 297, 316 (6th Cir. 2009) (“[W]hen two separate predicate offenses for triggering §924(c)(1) are charged and proved, a defendant may be convicted and sentenced for two separate crimes, even if both offenses were committed in the course of the same event”); United States v. Looney, 532 F.3d 392, 396 (5th Cir. 2008). 169 Deal v. United States, 508 U.S. 129, 132 (1993); United States v. Gooch, 850 F.3d 285, 290 (6th Cir. 2017); United (continued...) Congressional Research Service 22 Mandatory Minimum Sentencing of Federal Drug Offenses A number of defendants have sought refuge in the clause of Section 924(c), which introduces the section’s mandatory minimum penalties with an exception: “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” Defendants at one time argued that the mandatory minimums of Section 924(c) become inapplicable when the defendant was subject to a higher mandatory minimum under the predicate drug trafficking offense under the Armed Career Criminal Act (18 U.S.C. § 924(e)), or some other provision of law.170 The Supreme Court rejected the argument in Abbott v. United States.171 Thus, the clause means that the standard five-year minimum applies except in cases where the facts trigger one of Section 924(c)’s higher minimums.172 Armed Career Criminal Act (18 U.S.C. § 924(e)) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years.... 18 U.S.C. § 924(e)(1). Section 922(g) outlaws the possession of firearms by felons, fugitives, and various other categories of individuals.173 The Armed Career Criminal Act (ACCA), quoted above, visits a 15year mandatory minimum term of imprisonment upon anyone who violates Section 922(g), having been convicted three times previously of a violent felony or serious drug offense.174 As the cases below suggest, the section most often ensnarls felons found in possession of a firearm who have three qualifying prior convictions. More often than not, the prior convictions are for violations of state law.175 (...continued) States v. Buck, 847 F.3d 267, 278 (5th Cir. 2017); United States v. Davis, 841 F.3d 1253, 1260 n. 9 (11th Cir. 2016); United States v. Cardena, 842 F.3d 959, 999 (7th Cir. 2016); United States v. Arline, 835 F.3d 277, 281-82 (2d Cir. 2016); United States v. Washington, 714 F.3d 962, 969-70 (6th Cir. 2013) (noting, however, that the stacking should be governed by the rule of lenity, so that, for example, the 25-year mandatory minimums for second offenses should be stacked starting with a seven-year brandishing sentence rather than a 10-year discharge sentence). 170 United States v. Almany, 598 F.3d 238, 241-42 (6th Cir. 2010); United States v. Whitley, 529 F.3d 150, 153-56 (2d Cir. 2008). 171 562 U.S. 8, 13 (2010). 172 Id.; United States v. Robles, 709 F.3d 98, 100-101 (2d Cir. 2013). 173 The disqualified categories cover felons, fugitives, drug addicts, mental defectives, unlawful aliens, dishonorably discharged members of the Armed Forces, individuals who have renounced their U.S. citizenship, those under a domestic violence restraining order, and those convicted of misdemeanor domestic violence, 18 U.S.C. § 922(g)(1)-(9). 174 The ACCA is not to be confused with the federal three-strikes statute, 18 U.S.C. § 3559(c), which establishes a mandatory term of life imprisonment upon a third serious violent felony conviction, or with its two-strike counterpart in 18 U.S.C. § 3559(e), relating to mandatory life imprisonment for repeated child sex offenders. 175 The vast majority of the Supreme Court’s Section 924(e) cases involved at last one prior state conviction, see, e.g., Mathis v. United States, 136 S. Ct. 2243 (2016); Welch v. United States, 136 S. Ct. 1257 (2016); Johnson v. United States, 135 S. Ct. 2551 (2015); Descamps v. United States, 570 U.S. 254 (2013); Sykes v. United States, 564 U.S. 1 (2011), overruled by Johnson, 135 S. Ct. 2551 (2015); McNeill v. United States v. 563 U.S. 816 (2011); Johnson v. United States, 559 U.S. 133 (2010); Chambers v. United States, 555 U.S. 122 (2009), overruled by Johnson, 135 S. Ct. 2551 (2015); United States v. Rodriquez, 553 U.S. 377 (2008); Begay v. United States, 553 U.S. 137 (2008), overruled by Johnson, 135 S. Ct. 2551 (2015); Logan v. United States, 552 U.S. 23 (2007); James v. United States, 550 U.S. 192 (2007), overruled by Johnson, 135 S. Ct. 2551 (2015); Shepard v. United States, 544 U.S. 13 (2005); Custis v. United States, 511 U.S. 485 (1994); Taylor v. United States, 495 U.S. 575 (1990). Congressional Research Service 23 Mandatory Minimum Sentencing of Federal Drug Offenses Features Section 924(e) begins with unlawful possession of a firearm (“a person who violates section 922(g)”). The threshold possession offense need not itself involve a drug or violent crime.176 Section 924(e)’s 15-year mandatory minimum term of imprisonment instead flows as a consequence of the offender’s prior criminal record (“three prior convictions ... referred to in section 922(g)(1) ... for a violent felony or a serious drug offense”).177 Not all violent felonies or serious drug offenses count. Certain convictions, principally those which have been overturned, pardoned, or otherwise set aside as a matter of state law, are exempt by definition.178 Moreover, qualifying violent felonies or serious drug offenses must have been committed on different occasions.179 “[T]o trigger a sentence enhancement under the ACCA, a defendant’s prior felony convictions must involve separate criminal episodes. However, offenses are considered distinct criminal episodes if they occurred on occasions different from one another,” one court has observed.180 And “two offenses are committed on occasions different from one another if it is possible to discern the point at which the first offense is completed and the second offense begins.”181 Thus, separate drug deals on separate days will constitute offenses committed on different occasions though they involve the same parties and location.182 The fact that two crimes 176 United States v. Raymond, 778 F.3d 716, 717 (8th Cir. 2015). The statutory mandatory minimum takes precedence over a plea agreement calling for a sentence beneath the mandatory minimum. United States v. Symington, 781 F.3d 1308, 1313 (11th Cir. 2015) (citing United States v. Davis, 689 F.3d 349, 354 (4th Cir. 2012), and United States v. Moyer, 282 F.3d 1311, 1314 (10h Cir. 2002)). 178 18 U.S.C. § 921(20) (“The term ‘crime punishable by imprisonment for a term exceeding one year’ does not include- (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less. What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”). See United States v. Sellers, 784 F.3d 876, 881-87 (2d Cir. 2015) (A New York youthful offender conviction set aside as a matter of New York law does not qualify as a predicate offense) (citing United States v. Collins, 61 F.3d 1379, 1382 (9th Cir. 1995), and United States v. Clark, 993 F.2d 402, 403 (4th Cir. 1993); and distinguishing, United States v. Ellis, 619 F.3d 72,75 (1st Cir. 2010) (“‘It was not blatant error for the sentencing court to take [a defendant’s] juvenile adjudication into consideration for the purpose of applying the ACCA’ because ‘juvenile adjudications [under Massachusetts law] are not “set aside” for the purpose of imposing sentence in later criminal proceedings.’”)). 179 18 U.S.C. § 924(e)(1). 180 United States v. Martin, 526 F.3d 926, 938-39 (6th Cir. 2008) (internal citations omitted). 181 Id. See also United States v. Morris, 821 F.3d 877, 880 (7th Cir. 2016); United States v. Limney, 819 F.3d 747, 751 (4th Cir. 2016) (internal citations omitted) (“We have come to rely on five factors to determine whether predicate ACCA offenses were committed on different occasions: (1) whether the offenses arose in different geographic locations; (2) whether the nature of each offense was substantively different; (3) whether each offense involved different victims; (4) whether such offense involved different criminal objectives; and (5) whether the defendant had the opportunity after committing the first-in-time offense to make a conscious and knowing decision to engage in the next-in-time offense. Importantly, these five factors may be considered together or independently and the strong presence of any one factor can dispositively segregate an extended criminal episode into a serious of separate and distinct episodes.”); United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir. 2013) (internal citations omitted) (“To satisfy the ACCA’s different-occasions requirement, a defendant must have at least three prior convictions for crimes that are temporally distinct. So long as the predicate crimes are successive rather than simultaneous, they constitute separate criminal episodes for purposes of the ACCA.”). 182 United States v. Abbott, 794 F.3d 896, 898 (8th Cir. 2015) (“We have repeatedly held that convictions for separate drug transactions on separate days are multiple AWCCA predicate offenses, even if the transactions were sales to the same victim or informant.”). 177 Congressional Research Service 24 Mandatory Minimum Sentencing of Federal Drug Offenses occurred on different occasions, however, must be clear on the judicial record; recourse to police records will not do.183 There is “no authority to ignore [an otherwise qualified] conviction because of its age or its underlying circumstances. Such considerations are irrelevant ... under the Act.”184 Moreover, application of Section 924(e) provides no opportunity to challenge the validity of the underlying predicate offenses.185 The section defines serious drug offenses as those violations of state or federal drug law punishable by imprisonment for 10 years or more.186 Conviction under a statute which carries a 10-year maximum for repeat offenders qualifies, even though the maximum term for first-time offenders is five years.187 It is the maximum permissible term which determines qualification, even when discretionary sentencing guidelines call for a term of less than 10 years,188 or when the defendant was in fact sentenced to a lesser term of imprisonment.189 To qualify as a predicate drug offense, the crime must have been at least a 10-year felony at the time of conviction for the predicate offense.190 The term “serious drug offense” includes attempts or conspiracies to commit a serious drug offense, as long as the attempt or conspiracy is punishable by imprisonment for 10 years or more.191 By the same token, there is no need to prove that the defendant knew of the illicit nature of the controlled substance involved in his predicate serious drug offense if the serious drug offense satisfied the 10-year requirement and, in the case of state law predicate, involved the manufacture, distribution, or possession with intent to distribute a controlled substance.192 183 United States v. King, 853 F.3d 267, 279 (6th Cir. 2017); Limney, 819 F.3d at 751-52 (4th Cir. 2016); United States v. McCloud, 818 F.3d 591, 595-96 (11th Cir. 2016) (each citing Shepard v. United States, 544 U.S. 13 (2005)). 184 United States v. Moody, 770 F.3d 577, 580 (7th Cir. 2014). 185 Custis v. United States, 511 U.S. 485, 487 (1994) (“[A] defendant has no such right (with the sole exception of convictions obtained in violation of the right to counsel) to collaterally attack prior convictions.”); Daniels v. United States, 532 U.S. 374, 378-82 (2001); United States v. Coleman, 655 F.3d 480, 485 (6th Cir. 2011); United States v. Greer, 607 F.3d 559, 565 (8th Cir. 2010); United States v. Dean, 604 F.3d 169, 174-75 (4th Cir. 2010); United States v. Covington, 565 F.3d 1336, 1345 (11th Cir. 2009); United States v. Buie, 547 F.3d 401, 403-404 (2d Cir. 2008); United States v. Krejcarek, 453 F.3d 1290, 1297 (10th Cir. 2006). 186 18 U.S.C. § 924(e)(2)(A) (“[T]he term ‘serious drug offense’ means - (i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.”). 187 United States v. Rodriquez, 533 U.S. 377, 380 (2008). The record must make it clear, however, that the defendant was subject to any recidivist provision needed to reach the 10-year threshold, United States v. Lockett, 782 F.3d 349, 352-53 (7th Cir. 2015) (“Rodriquez requires the government to provide evidence from the record that the defendant was in fact subject to the enhanced recidivist penalties that could elevate his sentence past the ten-year mark.”). 188 United States v. Rodriquez, 533 U.S. at 390; United States v. Mayer, 560 F.3d 948, 963(9th Cir. 2009). 189 United States v. Buie, 547 F.3d 401, 404 (2d Cir. 2008); United States v. Williams, 508 F.3d 724, 728 (4th Cir. 2007); United States v. Henton, 473 F.3d 467, 470 (7th Cir. 2004). 190 McNeill v. United States, 563 U.S. 816, 817-18 (2011); United States v. Faust, 853 F.3d 39, 57 (1st Cir. 2017); United States v. Seabrooks, 839 F.3d 1326, 1347 (11th Cir. 2016); Rivera v. United States, 716 F.3d 685, 688-89 (2d Cir. 2013). 191 United States v. Trent, 767 F.3d 1046, 1057 (10th Cir. 2014) (citing United States v. Bynum, 669 F.3d 880, 887 (8th Cir. 2012); United States v. Williams, 488 F.3d 1004, 1009 (D.C. Cir. 2007); and United States v. McKinney, 450 F.3d 39, 44 (1st Cir. 2006)). 192 United States v. Smith, 775 F.3d 1262, 1266-67 (11th Cir. 2014). Congressional Research Service 25 Mandatory Minimum Sentencing of Federal Drug Offenses The Supreme Court in Johnson v. United States found unconstitutionally vague Section 924(e)’s violent felony residual clause (“the term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year … that … involves conduct that presents a serious potential risk of physical injury to another.”).193 The decision raises no question as to the validity of the mandatory minimum sentences imposed under the serious drug offense prong of Section 924(e).194 Safety Valve Low-level drug offenders can escape some of the mandatory minimum sentences for which they qualify under the safety valve found in 18 U.S.C. § 3553(f). Congress created the safety valve after it became concerned that the mandatory minimum sentencing provisions could have resulted in equally severe penalties for both the more and the less culpable offenders.195 The safety valve is available to qualified offenders convicted of violations of the possession-with-intent, simple possession, attempt, or conspiracy provisions of the Controlled Substances or Controlled Substances Import and Export Acts.196 The safety valve is not available to avoid the mandatory minimum sentences that attend other offenses, even those closely related to the covered offenses. Section 860 (21 U.S.C. § 860), which outlaws violations of Section 841 near schools, playgrounds, or public housing facilities and sets the penalties for violation at twice what they would be under Section 841, is not covered. Those charged with a violation of Section 860 are not eligible for relief under the safety valve provisions.197 In addition, safety valve relief is not available to those convicted under the Maritime Drug Law Enforcement Act, even though the act proscribes conduct closely related to the smuggling and trafficking activities punished under Sections 960 and 963 (21 U.S.C. §§ 960, 963).198 For the convictions to which the safety valve does apply, the defendant must convince the sentencing court by a preponderance of the evidence that he satisfies each of the safety valve’s five requirements.199 He may not have more than one criminal history point.200 He may not have 193 Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (construing 18 U.S.C. § 924(e)(2)(B)(ii)). Cf. In re Davis, 929 F.3d 1297, 1298 (11th Cir. 2016). 195 H. R. REP. NO. 103-460, at 4 (1994); United States v. Carillo-Ayala, 713 F.3d 82, 88 (11th Cir. 2013). 196 18 U.S.C. § 3553(f) (“Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing ... ”). 197 United States v. Phillips, 382 F.3d 489, 499-500 (5th Cir. 2004); United States v. Koons, 300 F.3d 985, 993 (8th Cir. 2002); United States v. Kakatin, 214 F.3d 1049, 1050-51 (9th Cir. 2000); United States v. Anderson, 200 F.3d 1344, 1346-348 (11th Cir. 2000); United States v. McQuilkin, 78 F.3d 105, 108 (3d Cir. 1996). 198 United States v. Gamboa-Cardenas, 508 F.3d 491, 496-503 (9th Cir. 2007). 199 United States v. Syms, 846 F.3d 230, 235 (7th Cir. 2017); United States v. Claxton, 766 F.3d 280, 305 (3d Cir. 2014); United States v. Schmitt, 765 F.3d 841, 842 (8th Cir. 2014); United States v. Rodriguez, 676 F.3d 183, 191 (D.C. Cir. 2012); United States v. Aidoo, 670 F.3d 600, 606-607 (4th Cir. 2012); United States v. Pena, 598 F.3d 289, 292 (6th Cir. 2010); United States v. Larios, 593 F.3d 82, 89 (1st Cir. 2010); United States v. Altamirano-Quintero, 511 F.3d 1087, 1098 (10th Cir. 2007); United States v. Mejia-Pimental, 477 F.3d 1100, 1104 (9th Cir. 2007). 200 18 U.S.C. § 3553(f)(1) (“[T]he defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines.”). 194 Congressional Research Service 26 Mandatory Minimum Sentencing of Federal Drug Offenses used violence or a dangerous weapon in connection with the offense.201 He may not have been an organizer or leader of the drug enterprise.202 He must have provided the government with all the information and evidence at his disposal.203 Finally, the offense may not have resulted in serious injury or death.204 One Criminal History Point More than one “criminal history point” is safety valve disqualifying.205 The criminal history point qualification refers to the defendant’s criminal record. The Sentencing Guidelines assign criminal history points based on a defendant’s past criminal record. Two or more points are assigned for every prior sentence of imprisonment or juvenile confinement of 60 days or more, or for offenses committed while the defendant was in prison, was an escaped prisoner, or was on probation, parole, or supervised release.206 A single point is assigned for every other federal or state prior sentence of conviction, subject to certain exceptions.207 Foreign sentences of imprisonment are not counted;208 nor are sentences imposed by tribal courts;209 nor summary court martial sentences;210 nor sentences imposed for expunged, reversed, vacated, or invalidated convictions;211 nor sentences for certain petty offenses or minor misdemeanors.212 The Sentencing Guidelines list two classes of these minor misdemeanor or petty offenses that are not counted for criminal history purposes and thus for safety valve purposes. One class consists of eight types of minor offenses, like hunting and fishing violations or juvenile truancy, that are not counted regardless of the sentence imposed.213 The other class consists of arguably more serious offenses, such as gambling or prostitution, that are excused only if the offender was sentenced no more severely than to imprisonment for 30 days or less or 201 Id. § 3553(f )(2) (“[T]he defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense.”). 202 Id. § 3553(f)(4) (“[T]he defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act”). 203 Id. § 3553(f)(5) (“[N]ot later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.”). 204 Id. § 3553(f)(3) (“[T]he offense did not result in death or serious bodily injury to any person.”). 205 Id. § 3553(f)(2); United States v. Monzo, 852 F.3d 1343, 1351 (11th Cir. 2017). 206 U.S.S.G. §§ 4A1.1(a), (b), (d); 4A1.2(d). United States v. Yepez, 704 F.3d 1087, 1089-90 (9th Cir. 2012) (a federal crime committed while the offender is on state probation is no less so because a state court subsequently terminates the probationary term as of the time it was originally ordered (i.e., before the federal crime was committed)). 207 U.S.C.G. §§ 4A1.1(c); 4A1.2. 208 Id. § 4A1.2(h). 209 Id. § 4A1.2(i). 210 Id. § 4A1.2(g). Sentences imposed by general and special courts martial are counted, id. 211 Id. §§ 4A1.2(j); 4A1.2, cmt. n.6. 212 Id. § 4A1.2(c). 213 The full list includes: “fish and game violations, hitchhiking, juvenile status offenses and truancy, local ordinance violations (except those violations that are also violations under state criminal law), loitering, minor traffic infractions (e.g., speeding), public intoxication, [and] vagrancy.” Id. § 4A1.2(c)(2). Congressional Research Service 27 Mandatory Minimum Sentencing of Federal Drug Offenses to probation for less than a year.214 Both classes also include similar offenses to those listed “by whatever name they are known.”215 Only the Nonviolent The safety valve has two disqualifications designed to reserve its benefits to the nonviolent. One involves instances in which the offense resulted in death or serious bodily injury. The other involves the use of violence, threats, or the possession of weapons. The weapon or threat of violence disqualification turns upon the defendant’s conduct or the conduct of those he “aided or abetted, counseled, commanded, induced, procured, or willfully caused.”216 It is not triggered by the conduct of a co-conspirator unless the defendant “aided, abetted, [or] counsel ...” the coconspirator’s violence or possession.217 Disqualifying firearm possession may be either actual or constructive.218 Constructive possession is the dominion or control over a firearm or the place where one is located.219 Disqualification requires that the threat of violence or possession of a firearm be “in connection with the offense,”220 and may include threats against witnesses.221 In 214 Again, the full list consists of: “careless or reckless driving, contempt of court, disorderly conduct or disturbing the peace, driving without a license or with a revoked or suspended license, false information to a police officer, gambling, hindering or failure to obey a police officer, insufficient funds check, leaving the scene of an accident, non-support, prostitution, resisting arrest, [and] trespassing.” Id. § 4A1.2(c)(1). 215 Id. §§ 4A1.2(c)(1), (c)(2). The Sentencing Guidelines suggest a number of factors to assist in the determination of whether an unlisted offense may be consider “similar” for purposes of Section 4A1.2(c): “ (i) a comparison of punishments imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.” Id. § 4A1.2, cmt. n.12(A). See, e.g., United States v. Foote, 705 F.3d 305, 307-308 (8th Cir. 2013) (possession of small amount of marijuana punishable by a small fine is not a similar offense to a similarly fined traffic offense); United States v. Burge, 683 F.3d 829, (7th Cir. 2012) (abandonment of a llama in violation of state wildlife code is sufficient similar to fish and game violations); United States v. DeJesus-Concepcion, 607 F.3d 303, 305-306 (2d Cir. 2010) (third degree unauthorized use of a vehicle is not a similar offense to careless or reckless driving); United States v. Calderon Espinosa, 569 F.3d 1005, 1008 (9th Cir. 2009)(offense of loitering for drug activities is loitering “by whatever name it is known”); United States v. Russell, 564 F.3d 200, 206 (3d Cir. 2009) (misdemeanor marijuana possession is not similar to public intoxication); United States v. Pando, 545 F.3d 682, 684 (8th Cir. 2008) (driv [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR45074. Public record. Not legal advice.