Reforming the Guidelines for Drug Offenses: “All Drugs Minus Two”

FAMM has long urged the U.S. Sentencing Commission to propose an “all drugs minus two” amendment to the drug sentencing guidelines. In 2013, the Commission announced its intention to consider amending the sentencing for all drugs (read FAMM’s press release about the proposals here). In January 2014, the Commission published its proposed guideline changes, including “all drugs minus two.”

The Problem:  Congress created mandatory minimum drug sentences at the same time that the U.S. Sentencing Commission was writing the first set of federal sentencing guidelines.  This created a problem for the Commission: should it use the mandatory minimum sentences as the starting point for calculating drug sentences under the guidelines, and if so, how? The Commission decided that it should. That’s why, when you look at the guidelines for drug offenses and the guidelines sentencing table, you see that the drug quantities that trigger mandatory minimum sentences match up – sort of – with the drug sentencing ranges for those quantities.  For example:

Drug Type and Quantity

Mandatory Minimum Sentence

Guideline Sentence Range

280 grams crack cocaine

10 years (120 months)

Level 32:  121 to 151 months (10 years, 1 month up to 12 years, 7 months)

1 kilogram heroin

10 years (120 months)

Level 32:  121 to 151 months (10 years, 1 month up to 12 years, 7 months)

500 grams powder cocaine

5 years (60 months)

Level 26:  63 to 78 months (5 years, 3 months up to 6.5 years)

5 grams of actual methamphetamine

5 years (60 months)

Level 26:  63 to 78 months (5 years, 3 months up to 6.5 years)

 

Notice any problems? We do:  the sentencing guideline ranges call for higher sentences than the mandatory minimums do, for the same amount of drugs!  For example, 5 grams of methamphetamine requires a 5-year (60-month) mandatory minimum sentence, but the guidelines tell the judge to start calculating the sentence length at 63 months (5 years, 3 months). This means that drug offenders are facing higher guideline sentences than they should be — and guidelines that are higher than the mandatory minimum sentence calls for.

Solution:  Amend the drug sentencing guidelines so that the drug quantities that trigger mandatory minimum sentences do not trigger longer minimum guidelines sentences. To do this, the Commission would have to lower the guidelines for all drugs by two levels. This is called the “all drugs minus 2” fix, and it would reduce the recommended guideline sentences for most drug offenses.  FAMM supports this fix because it produces fairer guideline sentence calculations and would produce shorter sentences for drug offenders, saving taxpayers money. Here’s how the guideline sentences shown above would change after an “all drugs minus 2” fix:

Drug Type and Quantity

Mandatory Minimum Sentence

Guideline Sentence Range Now

Guideline Sentence Range after an “All Drugs Minus 2” Amendment

280 grams crack cocaine

10 years

(120 months)

Level 32:  121 to 151 months (10 years, 1 month up to 12 years, 7 months)

Level 30:  97 to 121 months (notice that this puts the 10-year mandatory sentence within, not below, the guideline range, at 120 months)

1 kilogram heroin

10 years

(120 months)

Level 32:  121 to 151 months (10 years, 1 month up to 12 years, 7 months)

Level 30:  97 to 121 months (notice that this puts the 10-year mandatory sentence within, not below, the guideline range, at 120 months)

500 grams powder cocaine

5 years

(60 months)

Level 26:  63 to 78 months (5 years, 3 months up to 6.5 years)

Level 24:  51 to 63 months (notice that this puts the 5-year mandatory sentence within, not below, the guideline range, at 60 months)

5 grams of actual methamphetamine

5 years

(60 months)

Level 26:  63 to 78 months (5 years, 3 months up to 6.5 years)

Level 24:  51 to 63 months (notice that this puts the 5-year mandatory sentence within, not below, the guideline range, at 60 months)

 


Resources: