Resolving Federal Drug Charges

SENTENCING MITIGATION

While some federal criminal cases do proceed to trial, the vast majority are resolved through negotiation with the United States Attorney.  Within this negotiation exists a framework called federal sentencing guidelines.  These guidelines are set out in a chart where you cross reference the charges themselves against several factors.  The chart then gives a range of months that the judge or magistrate will generally impose as your sentence.

Definition of mitigation: 

the act of mitigating something or the state of being mitigated: the process or result of making something less severe, dangerous, painful, harsh, or damaging

There are several things that can be done to adjust the delineated range dictated by the guidelines (as discussed elsewhere), but even when it comes time for sentencing, the judge still has discretion, not only within the recommended guidelines, but also outside of them.  They are after all, only recommended guidelines.

By first working with the U.S. Attorney, not only is it possible to remove the risk of a life-sentence, but to also get under the mandatory minimum sentence of ten years applied to most trafficking situations.  These two hurdles clear the way for far more progress in the sentencing phase.

In federal court, perhaps the most important advocacy can come at sentencing.  Unlike in state court where the negotiated outcome has been locked in by the agreement with the prosecutor, federal judges retain substantial power and discretion at the time of sentencing.

This means that an experienced, caring advocate must bring all of their skills and powers of negotiation to bear in preparing and presenting their sentencing mitigation package.

Not only is there a range within which the court may vary it’s sentence without justification, but the guidelines allow the judge to dip below if the mitigation warrants it and the attorney does a good job of convincing them that this is the right thing to do for this defendant in this situation.

The package is comprised of several components, but always rooted in expert witness reports which your judge or magistrate will be persuaded by.  The attorney’s job is to construct a meaningful and persuasive narrative which relies substantially on the expert’s reports.

Your attorney is your advocate, and so, if they simply argue your background to the court, it will lack reliability and therefore it will not be effectively employed in deciding your sentencing.  If on the other hand it is reported by a doctor or PHD and then argued by your lawyer, it will carry substantial weight.

No expert and attorney can erase consideration of one’s criminal history, but mitigation strategies are fundamental to helping most federal criminal client’s avoid lengthy prison sentences.

EXAMPLE A

A defendant is caught and indicted for trafficking cocaine from California to Iowa.  The quantity of the cocaine is sufficient to qualify for a life sentence.

I speak and or meet with the AUSA assigned to prosecute the case.  After establishing a rapport, I inquire about a proffer session, or cooperating interview.  The AUSA agrees they are amenable.  We schedule a meeting with my client, the federal agents and the AUSA.  The terms of the meeting are established in advance to NOT include discussion of anyone else who may be the subject of a federal investigation.  The conversation will ONLY be about my client discussing the details of his or her specific actions.  The meeting goes well, and the AUSA in exchange notes that this qualifies my client for a multi-level reduction in sentencing which gets us out of the mandatory ten year minimum sentence and of course the removal of the possibility of a life-sentence.

Now, within the sentencing guidelines, the AUSA submits a sentencing memorandum asking the court to impose a sentence within the guidelines of 11 years.  My own memorandum, supported by expert evaluations included in my sentencing mitigation package (submitted to the court well in advance), asks that the court, in its discretion to contradict the guidelines entirely and grant my client probation which the AUSA argues is not permitted – insisting that these charges require a mandatory prison sentence.  I argue that several federal jurisdictions including the Central District of California have programs that would allow for community-based treatment and counseling while out on probation.  My argument is ultimately persuasive, and my client will be able to earn release in four years.

The use of a properly constructed mitigation package not only avoided what the AUSA was asking for, but saved my client from a much longer sentence and time away from his family.

Defense counsel meets and communicates repeatedly with the AUSA assigned to the case and sets up a meeting that also includes the client and the agent or agents involved in the case.  This “cooperating interview” or “proffer session” is not about giving information about anyone else.  It is not “ratting” or “turning” or “singing” – in order to effectively help oneself, these sessions can be arranged to only discuss the client’s direct involvement.

EXAMPLE B

Client unwittingly agrees to drive a vehicle carrying drugs from San Diego to Los Angeles.  He may not  have known what was in the car, but it couldn’t be denied that he knew it had to be criminal. Unfortunately, he was stopped while driving the vehicle back into LA.

The quantity of narcotics in this car were sufficient for a life sentence to be imposed.

I speak and or meet with the AUSA assigned to prosecute the case.  After establishing a rapport, I inquire about a proffer session, or cooperating interview.  The AUSA agrees they are amenable.  We schedule a meeting with my client, the federal agents and the AUSA.  The terms of the meeting are established in advance to NOT include discussion of anyone else who may be the subject of a federal investigation.  The conversation will ONLY be about my client discussing the details of his or her specific actions.  The meeting goes well, and the AUSA in exchange notes that this qualifies my client for a multi-level reduction in sentencing which gets us out of the mandatory ten year minimum sentence and of course the removal of the possibility of a life-sentence.

Now, within the sentencing guidelines, the AUSA submits a sentencing memorandum asking the court to impose a sentence within the guidelines.  My own memorandum, supported by expert evaluations included in my sentencing mitigation package (submitted to the court well in advance), asks that the court, in its discretion to contradict the guidelines entirely and grant my client probation which the AUSA argues is not permitted – insisting that these charges require a mandatory prison sentence.  I argue that several federal jurisdictions including the Central District of California have programs that would allow for community-based treatment and counseling while out on probation.  My client has submitted himself to evaluation for entry into these programs but has been refused because he doesn’t have a big enough problem.  My proposal to the court is intensive outside counseling and community services.  While the court does not give into my argument, the judge is moved by my client’s personal story as illustrated in the comprehensive mitigation package and his sentence will only see him spend about 18 months in custody.

The use of a properly constructed mitigation package not only avoided what the AUSA was asking for, but saved my client from a much longer sentence and time away from his family.

Conclusion

In the end, you won’t have a choice about how your case goes if you don’t have the right attorney from the beginning.  The opportunities to work with the AUSA and to prepare and present mitigation will disappear as time passes.  Call as soon as you catch your case so that we don’t miss the chance to save you from a worse fate.  Look, if you’re reading this, you’ve already got a problem.  You can’t sweep it under the rug or stuff it in the closet.  Confront it head-on and you can manage the damages.  Ignore it, and it will get you… and you will regret it for the rest of your life.

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