Federal Crimes Blog

How Can You Avoid a Mandatory Minimum Sentence in Drug Case?

Posted by Ronald D. Hedding | Aug 05, 2023

Let's review the four ways to avoid a mandatory minimum sentence in a federal drug case. Under federal laws, illegal drugs and controlled substances are defined under 21 U.S.C. 841. Notably, there are three levels of federal felony drug offenses.

All drugs could fit into one or more levels, depending on the drug type and quantity. Threshold quantities of certain drugs will trigger mandatory minimum jail sentences but could be avoided by convicted drug defendants.

The three levels of federal drug offenses are listed under 21 U.S.C. 841.  For example, 21 U.S.C. 841 (b)(1)(A), the most severe, impose a sentence of no less than ten years and no more than life.  

The next level, 21 U.S.C. 841 (b)(1)(B), imposes a sentence of at least five years and not more than 40 years. The third level, 21 U.S.C. 841 (b)(1)(C), is the least severe, has no mandatory minimum jail time, but says convicted defendants could be sentenced to up to 20 years. Now, let's review the possible ways to avoid these mandatory minimums below.

What Are Four Ways to Mandatory Minimum Jail Sentences?

The four ways to avoid a mandatory minimum in a drug case, usually a 10-year sentence, are the minimum. You could get more than that. 

1. Go to Trial and Win

First, you go to trial.  You have the best attorney with you, and you're found not guilty.  Then you'll avoid that 10-year mandatory minimum. This could occur with a verdict of not guilty of a drug crime or upon a guilty finding but not of the drug type or quantity required to impose a minimum jail sentence. 

For example, suppose you were accused of drug conspiracy to possess with intent to distribute a mixture or substance with a detectable amount of heroin in the quantity of one kilogram or more. In that case, this offense has a mandatory minimum jail sentence of 10 years if you are convicted.  For example, consider these two factors:

  • Suppose you are found guilty of conspiring to possess heroin but less than one kilogram.
  • In that case, you would be eligible for a sentence under ten years, avoiding the mandatory minimum.

Simply put, you take the case to trial, and the jury finds that the amount of drugs you had was less than necessary for the 10-year mandatory minimum. 

Sometimes people are guilty of moving drugs, but the amount of drugs they're trying to claim the person is moving is not the correct amount.  They're able to go to trial, prove it's less than the mandatory minimum, and therefore, they would not be subject to the mandatory minimum sentence.  Again, typically, in a drug case, you're talking about ten years.

2. Negotiate a Plea Agreement

The following way to avoid a mandatory minimum jail sentence in federal drug cases is to negotiate the terms of a plea agreement with the government.

The agreement would say that if you admit guilt or responsibility, you will receive a lower-level drug crime that does not require a mandatory sentence. 

For example, suppose you are charged with a drug crime involving one kilogram or more of heroin, defined under 21 U.S.C. 841 (b)(1)(A). In that case, you could negotiate a plea agreement calling for admitting 100 grams or more defined under 21 U.S.C. 841 (b)(1)(B) with less penalties. 

However, successfully negotiating a plea agreement with the prosecutor to a federal felony drug crime that does not involve a mandatory sentence is typically based on several factors, such as the following:

  • Your criminal history;
  • Your background and personal circumstances;
  • Level of culpability;
  • Nature and circumstances of the charged offenses;
  • Strengths and weaknesses of the case;
  • The United States Attorney's Office prosecuting the matter;
  • The most current Department of Justice policy;
  • Ability of your federal criminal defense lawyer.

3. Qualify for a Limitation

The third way to avoid the mandatory minimum sentence in a federal drug case is the safety valve, which involves people with little or no criminal record, but you must qualify for a limitation.

How Can You Avoid a Mandatory Minimum Sentence in Drug Case?
There are some different ways to avoid a mandatory minimum sentence in a federal drug case.

This often includes sitting down with the government and giving them all the information about themselves.  It's called a proffer session. You'll typically get a queen-for-a-day letter where you can say whatever you want, and the prosecutors can't use it against you. 

You don't have to talk about anybody else, just about what you did.  If you are successful and truthful with the government and are not the legal organizer of the crime, you didn't use a weapon. 

So, I'm giving you an idea of how to get that safety valve. Of course, when you meet with me, we go over everything and discuss it.  If you successfully get the safety valve, the judge can go below the 10-year mandatory minimum in a federal drug case.  Also, if you meet specific requirements, the judge can get two levels off your sentence for that safety valve.

Also, suppose you qualify for a limitation on applying mandatory jail sentences in federal drug cases described in 18 U.S.C. 3553 (f) and the United States Sentencing Guidelines, which is the safety valve limitation.

To qualify for this exception to mandatory minimum jail time, a defendant must plead guilty or accept responsibility for their misconduct must meet the following criteria:

  • Have no more than one criminal history point for purposes of sentencing guideline calculations;
  • Did not use violence or threats of violence or possess a firearm or other dangerous weapon during the offense;
  • Did not cause death or serious bodily injury to another during the commission of the offense;
  • Did not serve as an organizer, leader, supervisor, or manager of others;
  • Truthfully provide the government with all known information regarding their misconduct.

Suppose you meet the above-referenced criteria. In that case, regardless of the convicted drug offense, you are not subject to mandatory minimum jail sentences.

4. Cooperate with the Government

The final way to avoid that mandatory minimum is to cooperate with the government. That's called a 5k departure, where you sit down with the attorney on the government's side and their agent or agents. You're usually going to be asked to do the following:

  • Talk about the crime you were involved in,
  • Give truthful information about what you did, and
  • What other people did who were involved in that crime, and
  • They may ask you other questions to gather information about other criminal activity you know about.

If you decide to cooperate with the government, the objective is to give them information. If they can use that information to catch other people, find more drugs, find guns, whatever the case may be.

In the end, suppose the government believes you provided them with substantial assistance. In that case, they can request a 5k departure – not only go below the 10-year mandatory minimum, but they can assign a plate value to whatever information you gave them. For example, they can request that the Judge take five levels off. That's the equivalent of years off a potential sentence for you.  It's a very valuable tool if it's used the right way.

What Are the Related Federal Laws?

21 United State Code Part D, Offenses and Penalties, has numerous federal statutes related to federal drug offenses and sentencing, such as the following:

  • 21 U.S.C. 841 - Prohibited acts A
  • 21 U.S.C. 842 - Prohibited acts B
  • 21 U.S.C. 843 - Prohibited acts C
  • 21 U.S.C. 844 - Penalties for simple possession
  • 21 U.S.C. 844a - Civil penalty for possession of small amounts;
  • 21 U.S.C. 846 - Attempt and conspiracy
  • 21 U.S.C. 847 - Additional penalties
  • 21 U.S.C. 848 - Continuing criminal enterprise
  • 21 U.S.C. 849 - Transportation safety offenses
  • 21 U.S.C. 850 - Information for sentencing
  • 21 U.S.C. 851 - Proceedings to establish prior convictions
  • 21 U.S.C. 852 - Application of treaties and international agreements;
  • 21 U.S.C. 853 - Criminal forfeitures
  • 21 U.S.C. 854 - Investment in illicit drug profits
  • 21 U.S.C. 855 - Alternative fine
  • 21 U.S.C. 856 - Maintaining drug-involved premises
  • 21 U.S.C. 858 - Endangering human life while manufacturing;
  • 21 U.S.C. 859 - Distribution to persons under the age of twenty-one
  • 21 U.S.C. 860 - Distribution or manufacturing in or near schools;
  • 21 U.S.C. 860a - Consecutive sentence for manufacturing or distributing;
  • 21 U.S.C. 861 - Employment or use of persons under 18 years;
  • 21 U.S.C. 862 - Denial of Federal benefits to drug traffickers;
  • 21 U.S.C. 862a - Denial of assistance for certain drug-related convictions;
  • 21 U.S.C. 862b - Sanctioning for testing positive for controlled substances;
  • 21 U.S.C. 863 - Drug paraphernalia
  • 21 U.S.C. 864 - Anhydrous ammonia
  • 21 U.S.C. 864a - Grants to reduce production of methamphetamines
  • 21 U.S.C. 865 - Smuggling methamphetamine or precursor chemicals.

Why Do You Need a Federal Criminal Defense Lawyer?

So, that's kind of a thumbnail of when you can avoid the 10-year mandatory minimum in a drug case.  Also, if you're caught with guns used in the crime, that could be an additional five years on top of the 10-year mandatory minimum under 924(c).

Federal Criminal Defense Lawyer
Ronald Hedding, Esq.

Mandatory minimum jail sentences in federal court are severe. Federal judges only have the authority to avoid imposing them if one of the exceptions listed above applies.

Under the United States Department of Justice (DOJ) policy, they will pursue the highest-level drug offenses supported by the evidence to seek mandatory minimum sentences for convicted crimes. 

The DOJ also endorses the use of 21 U.S.C. 851, which allows mandatory minimum sentences to be doubled for defendants with prior drug convictions. Simply put, under the federal criminal justice system, you will need an experienced federal criminal defense attorney to have the best chance at a favorable outcome.

If you need the best, you've come to the right place.  I've worked for the prosecutors, I've worked for a superior court judge, and I've been defending people just like you since the early 1990s. Pick up the phone now.  Ask for a meeting with Ron Hedding.  I stand at the ready to help you. The Hedding Law Firm has offices in Los Angeles, California.

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About the Author

Ronald D. Hedding

What Makes Ronald Hedding Uniquely Qualified To Represent You? I've been practicing criminal defense for almost 30 years and have handled thousands of cases, including all types of state and federal sex crime cases. All consultations are discreet and confidential.

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