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Major Revision of Sentencing Guidelines Contemplated


November 1994

On November 4, 1994, the staff of the U.S. Sentencing Commission presented to the Commission two alternative proposals to completely revamp the Federal sentencing guidelines in drug cases. Hitting the ground running, the fully constituted Commission, within hours of the swearing-in of four new appointees, began a major effort to revise drug sentencing guidelines developed in 1986 and 1987 during the height of anti-drug hysteria. Presented to the Commission were two packages dubbed "Alternative One" (56 pages long), and "Alternative Two" (18 pages long). The National Drug Strategy Network will send you a copy of the papers for $25.00.

The problem the commission staff has focused upon is that the sentences are tied to quantities of drugs. Quantity has such a prominent role because Congress, in the Anti-Drug Abuse Act of 1986, used quantity as the means to direct the Justice Department to concentrate on prosecuting the highest level traffickers. In the Act, Congress picked quantities that were very small relative to the volumes of drugs actually handled by major drug organizations.

The commission staff is recommending that quantity be looked at more carefully and when appropriate, minimized or discounted, and that other factors be used to grade the seriousness of the offense. The key step is to divorce the structure and quantities of the guidelines from the mandatory minimum threshold quantities. Of course, the quantity-defined mandatory sentences will still trump the guidelines, but the guidelines themselves should be constructed with the goals of the Sentencing Reform Act and the experience of the courts and the sentencing commission in mind.

Attached to Alternative One is Appendix A, an excellent paper that explains a number of problems. The quantity/mandatory minimum problem became greater after 1988 when conspiracy offenses were included in the mandatory minimums as these examples show. Example 1: Two defendants sell 125 grams of heroin in 1987. If prosecuted for the substantive count, the 5-year mandatory applies. If prosecuted for the conspiracy to sell the cocaine, there would have been no mandatory. With the same facts in 1989, the 5-year mandatory applies to both crimes. Example 2: Two defendants together engage in two separate transactions each involving 75 grams of heroin in 1987. When prosecuted for each substantive count or for conspiracy, there would have been no mandatory minimum. With the same facts in 1989, there is no mandatory for the substantive counts, but there is a mandatory for a conspiracy prosecution.

Another problem that has bedeviled the guidelines has been the application of the total weight of the "mixture or substance" to the guidelines. The "mixture or substance" language only exists in the paragraphs providing mandatory minimums, not the basic offense of violating 21 U.S.C. 841(a). In 1987, the Sentencing Commission decided to apply "mixture or substance" to all quantities in the guidelines, and not to use the actual quantity of controlled substance (pure) involved in the offense. This reflected a concern that the litigation about sentencing would become too complex. What has happened is that by disregarding purity, traffickers at lower levels of the distribution chain are being sentenced for the weight of adulterants and not drugs, and as the percentage of adulterants increases at lower levels, low level offenders are often receiving guideline ranges greater than higher level offenders.

"Alternative One" consists of eleven "attachments," which are various options for reform that can work together or separately.

Attachment 1 compresses the Drug Quantity Table which defines the guideline range for given quantities. The guideline offense levels overlap a gien number of months. For example, 120 months (ten years) is at the bottom of level 32 (121-151 months), in the middle of level 31 (108-135 months) and at the top of level 30 (97-121 months). Currently, because Congress specified 120 months as the mandatory minimum for 1 kilogram of heroin, trafficking one kg of heroin is a level 32 offense. But just as logically, it could be a level 30 offense, and other quantities could be similarly modified. This would be an example of how Option A of Attachment 1 would operate. But the ten-year mandatory was designed by Congress for the true ringleader. The guidelines now enhance the sentence, if the government demonstrates that the defendant was the ringleader, by four levels. (Thus being sentencing at level 36 (188-235 months, far above 10 years.) So another way to structure the quantities is to set the quantity so that combining quantity plus role enhancement for a ringleader gets to level 32, i.e., put the quantity at level 28 (78-97 months), which is an example of Option B of Attachment 1.

Attachment 2 would set a ceiling on the level that a defendant with a minor or minimal role could be sentenced, no matter what the quantity, e.g. level 28, thus minimizing the role of quantity in their cases.

Attachment 3 modifies the application of Aggravating role to managers and supervisors. It clarifies how someone, perhaps simply the supervisor of other offloaders, can still be a minor or minimal participant.

Attachment 4 is a complete revision of the explanation of what is meant by a minor or minimal role in the offense. A minor participant can get a decrease of 2 levels. A minimal participant can get a decrease of 4 levels. The difference between a minor participant and a minimal participant is not sharp, and will depend on the facts of a case. However, a person who possesses a firearm in the offense cannot be a minimal participant. Generally the new criteria for finding a minor or minimal role would be: (A) the defendant "had no material decision-making authority or responsibility;" (B) total compensation or benefit to the defendant was "very small in comparison to the total profit typically associated with offenses of the same type and scope;" (C) the defendant did not supervise other participant(s); and (D) the defendant performed only "unsophisticated tasks." Regarding offenses involving contraband (drugs, pornography, guns, trademark counterfeit goods, etc), a defendant who (A) "sold, or played a substantial part in negotiating the terms of the sale, of the contraband;" (B) had "an ownership interest in any portion of the contraband;" or (C) "financed any aspect of the offense" shall not receive a mitigating role adjustment.

Attachment 5 would treat a marijuana plant as equivalent to 100 grams of marijuana for purposes of the guidelines, for any number of plants. The current guidelines in cases involving more than 50 plants, provide an equivalence of one plant equal to 1 kilo of marijuana. This change would not change the application of the 100 plants equal 100 kilos in the mandatory minimum statute.

Attachment 6 increases the weight given to firearm possession or use in drug offenses. Even in the most minor drug offenses, if a firearm is possessed the minimum offense level is 18 (27-33 months). If the offense level is greater than 18, it shall be increased by 2 levels. If a firearm is discharged, the minimum level is 20 (33-41 months), or the increase shall be 4 levels.

Attachment 7 provides for enhancement for a defendant's leadership or supervisory roles in criminal organizations on the basis of the role and the number of other participants in the criminal organization. For the leader of an offense involving at least ten other participants, the increase is 5 levels. At higher levels, a single level increase can add 3-5 years, or life, to a sentence.

Attachment 8 seeks a comment or proposed amendment regarding the drug quantities for sentencing in manufacturing, trafficking, exporting or importing (and attempts and conspiracies) offenses. It proposes to look at the offense on a "snapshot" basis in time, rather than cumulating the number of buys et up by the investigating officers and informants, or a court's extrapolations from a couple of transactions over several years to an estimate of a total quantity transacted over a couple of years. The Attachment proposes two bracketed time periods: [12 months] or [180 days].

Attachment 9 modifies the drug quantity tables for drugs in the form of pills to use dosage unit measure rather than total weight (which typically includes inactive fillers of some kind).

Attachment 10 revises the drug quantity table to take purity into account. The weights shall be the actual weights of the controlled substance. A rebuttable presumption is proposed for heroin, cocaine, crack, cocaine base, or methamphetamine. If the transaction involved more than one kilogram, the purity is presumed to be 75%. In any other case there is a rebuttable presumption that the purity is 50%. Case-specific information changes that presumption. DEA Form 7 that is part of most DEA arrests includes in item 32 the total net weight of the pure amount of the controlled substance evidence involved.

Attachment 11 contains a number of miscellaneous issues: (1) It defines hashish and hashish oil in terms of some of the chemicals they must contain and whether or not they contain any plant material. (2) In cases involving wet marijuana that cannot be smoked without drying, "an approximation of the weight of the marihuana without such excess moisture content is to be used." (3) In offenses involving an agreement to sell some quantity, the amount actually delivered would be the weight for sentencing. If the court found the defendant did not actually intend to sell the stated quantity or "was not reasonably capable of producing the agreed-upon quantity" the court shall exclude the amount the defendant did not intend to sell or was not reasonably capable of producing. (4) A marijuana plant is defined. "For purposes of the guidelines, a 'plant' is an organism having leaves and a readily observable root formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is a marihuana plant)." (5) Drug quantity equivalences are set for khat and LAAM. (6) The distinction between L-methamphetamine and D-amphetamine is eliminated. (7) The evidentiary standard for the weapon possession enhancement is clarified: "If a weapon was present during the offense (e.g., a weapon was found at the same location as the controlled substance), there shall be a rebuttable presumption that it was possessed in connection with the offense."

"Alternative Two" is summarized only briefly here. It would go substantially further in disregarding quantity as a factor in drug sentencing. Drugs would be divided into three classes:

  1. Heroin, cocaine and cocaine base (crack).

  2. Marijuana, hashish, LSD, PCP and methamphetamine (speed).

  3. Schedule III, IV, and V drugs and steroids.

A key criterion would be use and type of weapon involved in the offense with major enhancements in offense levels -- up to 7 level increases.

Drug organization size would become a major criterion, and provides for a 10-level increase for drug organizations of 30 or more participants.

This alternative would not have decreases for couriers, mules, or street-level dealers. The notion of minor or minimal participant would be abandoned in favor of the term "peripheral defendants," which would include off-loaders, deck-hands, go-fers, and enablers, who would be eligible for a 2-level reduction.