Making Sentencing Recommendations in Certain Drug Cases

As set forth in

JM 9-27.730

, although in many cases the appropriate balance among the 18 U.S.C. § 3553(a) factors will lead to a recommendation for a sentence within the advisory range resulting from the application of the Sentencing Guidelines, there are cases in which such a sentence may not be proportional to the seriousness of the defendant’s conduct or achieve the purposes of criminal sentencing as articulated in 18 U.S.C. § 3553(a). In such cases, prosecutors may conclude that a request for a departure or variance above or below the guidelines range is warranted.

In the context of drug cases, requests for departures or variances may be particularly justified in the following circumstances:

Certain cases in which the guidelines range does not adequately reflect the defendant's crime and culpability:

At times, a low-level seller in a large-scale drug organization may be held responsible under the relevant conduct provisions of the Sentencing Guidelines for a large quantity of drugs that produces an advisory range near the top of the sentencing table. In such cases, prosecutors should consider supporting a downward departure or variance, particularly where all or most of the criteria listed in

JM 9-27.311

are satisfied. Conversely, where the criteria are satisfied and yet the penalty yielded by the advisory guidelines range is not proportional to the seriousness of the defendant's conduct, prosecutors may consider seeking an upward departure or variance.

Certain cases in which the career offender guidelines range does not adequately reflect the defendant's crime and culpability:

Similar consideration should be given in a case in which the defendant is subject to sentencing under the career offender guideline,

see

U.S.S.G. § 4B1.1, which is designed to trigger guideline ranges at or near statutory maximum sentences

an upward departure or variance.

Certain cases in which the career offender guidelines range does not adequately reflect the defendant's crime and culpability:

Similar consideration should be given in a case in which the defendant is subject to sentencing under the career offender guideline,

see

U.S.S.G. § 4B1.1, which is designed to trigger guideline ranges at or near statutory maximum sentences. In a case in which all or most of the listed criteria are present, and the defendant's status as a career offender is predicated only on the current and previous commission of nonviolent controlled substance offenses, prosecutors should consider supporting a downward variance to the guidelines range that would apply in the absence of career offender status. (For purposes of this subsection, nonviolent offenses are those that do not involve the actual or threatened use of a weapon or other means of violence.) Conversely, if the defendant's prior convictions involved the actual or threatened use of violence, but the crimes do not qualify as career offender predicates under the "categorical approach," if appropriate prosecutors may consider advocating for an upward variance, including toward the career offender range.

In crack cocaine cases, prosecutors should advocate for a sentence consistent with the guidelines for powder cocaine rather than crack cocaine. Where a court concludes that the crack cocaine guidelines apply, prosecutors should generally support a variance to the guidelines range that would apply to the comparable quantity of powder cocaine.

Whatever the ultimate sentencing recommendation, prosecutors must always be candid with the court, the probation office, and the public as to the full extent of the defendant’s conduct and culpability, including the type and quantity of drugs involved in the offense and the quantity attributable to the defendant’s role in the offense, even if the charging document lacks such specificity.

[added June 2023]