An Overview of

MANDATORY MINIMUM 

PENALTIES

in the 

FEDERAL CRIMINAL 

JUSTICE SYSTEM

United States Sentencing Commission

July 2017

Overview of Mandatory Minimum Penalties

in the Federal Criminal Justice System

williaM h. PryOr, Jr. 

Acting Chair 

raChel e. BarkOw

Commissioner

Charles r. Breyer

Commissioner

danny C. reeves

Commissioner

J. PatriCia wilsOn sMOOt

Ex Officio 

JOnathan J. wrOBlewski

Ex Officio 

kenneth P. COhen

Staff Director

July 2017

TABLE OF CONTENTS

1 Section One: Introduction

5 Section Two: Key Findings

9 Section Three: Mandatory Minimums in the Federal System

10 What are Mandatory Minimum Penalties? 

10 Statutory Criteria Triggering Mandatory Minimum Penalties

11 Common Offenses Involving Mandatory Minimum Penalties

11 Mandatory Minimum Penalties for Drug Offenses 

12 Mandatory Minimum Penalties for Firearms 

13 Mandatory Minimum Penalties for Child Sexual Exploitation and Related Offenses 

15 Mandatory Minimum Penalties for Identity Theft Offenses

16 How Are Mandatory Minimum Penalties Incorporated Into the Guidelines? 

18 Can Offenders Obtain Relief From Mandatory Minimum Penalties? 

18 Substantial Assistance 

19 Statutory “Safety Valve” Relief 

21 Section Four: Recent Changes in the Charging of Mandatory Minimum Offenses

22 Impact of the Fair Sentencing Act of 2010 

22 Criminal Justice Reform 

23 Changes in Charging Practices 

27 Section Five: Data Analysis

28 The Commission’s Updated Study 

28 Methodology 

28 Records Collection 

28 Data Analysis 

29 Prevalence of Offenses Carrying Mandatory Minimum Penalties

29

32

32

How Often Are Offenders Charged with an Offense Carrying a Mandatory Minimum Penalty? 

How Severe Were the Penalties for Mandatory Minimum Offenses for Which Offenders Are Convicted? 

Where Were Offenders Convicted of Offenses Carrying Mandatory Minimums? 

34 Primary Offense Types for Offenders Convicted of Offenses Carrying a Mandatory Minimum Penalty

36 Offender Demographics & Criminal History 

36 Offender Demographics 

38 Criminal History 

39 Relief from Mandatory Minimum Penalties 

40 Offense Type 

40 Demographics 

42 Substantial Assistance 

43 Sentencing of Offenders Convicted of an Offense Carrying a Mandatory Minimum Penalty 

43 Average Sentence Length 

46 Sentences Relative to the Guideline Range

48 Impact of Mandatory Minimum Penalties on the Federal Prison Population 

48 Federal Population Overall 

49 Mandatory Minimum Offenders in the Federal Prison Population 

53 Mandatory Minimum Offenders in the Federal Prison Population – By Race 

53 Mandatory Minimum Offenders in the Federal Prison Population – By Gender 

55 Mandatory Minimum Offenders in the Federal Prison Population – By Citizenship

57 Section Six: Conclusion

59 Endnotes

77 Appendices

i
United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)
1Introduction
2 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

Introduction

This publication assesses the impact of 

mandatory minimum penalties on federal 

sentencing. It continues the United States 

Sentencing Commission’s work in this area by 

highlighting recent developments regarding 

the charging of offenses carrying a mandatory 

minimum penalty, and providing updated 

sentencing data regarding the use and 

impact of mandatory minimum penalties. This 

publication builds on the Commission’s previous 

reports and publications—particularly, its 2011 

Report to the Congress: Mandatory Minimum 

Penalties in the Federal Criminal Justice System—

and is intended to contribute to the continued 

examination of federal mandatory minimum 

penalties. It is the first in a series, with future 

publications focusing on mandatory minimum 

penalties for specific offense types. 

Federal statutory mandatory minimum 

penalties have existed since the early days of the 

nation,1 and they have continually evolved in the 

centuries since. As policy views have shifted over 

time, Congress2 and many others3 have continued 

to examine the role and scope of these mandatory 

minimum penalties in the federal criminal system.4

For more than thirty years, the United States 

Sentencing Commission (“the Commission”)5 has 

played a central role in this process, working with 

the legislative, executive, and judicial branches 

of government and other interested parties to 

ensure that sentencing policy promotes the goals 

of the Sentencing Reform Act of 1984 (“SRA”).6

Consistent with its statutory role,7 the 

Commission has continued to inform the ongoing 

discussion regarding sentencing policy by 

gathering, analyzing, and disseminating sentencing 

data, including analyses regarding the use, scope 

and impact that mandatory minimum penalties 

have on sentencing in the federal system. The 

Commission has submitted numerous reports to 

Congress, released varying data publications, 

responded to Congressional data requests, and 

provided Congressional testimony regarding 

mandatory minimum penalties over the past 30 

years.8 The Commission submitted its first report 

to Congress about mandatory minimum penalties 

only a few years after the initial guidelines 

went into effect.9 At that time, the Commission 

concluded that “the most efficient and effective 

way for Congress to exercise its powers to direct 

sentencing policy is through the established 

process of the sentencing guidelines, permitting 

the sophistication of the guidelines structure to 

work, rather than through mandatory minimums.”10

Most recently, the Commission issued its 

comprehensive 2011 Report to the Congress: 

Mandatory Minimum Penalties in the Federal 

Criminal Justice System (2011 Mandatory 

Minimum Report). That report, which was 

submitted pursuant to the statutory directive 

contained in section 4713 of the Matthew Shepard 

and James Byrd, Jr. Hate Crimes Prevention Act 

of 2009,11 provided detailed historical analyses of 

the evolution of federal mandatory minimums,12

scientific and medical literature on the topic, and 

extensive analysis of the Commission’s own 

data, public comment, and expert testimony.13

While expressing a “spectrum of views” 

regarding mandatory minimum penalties in 

its 2011 Mandatory Minimum Report, the 

Commission uniformly concluded that “a strong 

and effective sentencing guidelines system best 

serves the purposes of the Sentencing Reform 

Act.”14 The Commission further concluded that 

where “Congress decides to exercise its power to 

direct sentencing policy by enacting mandatory 

minimum penalties, . . . such penalties should (1) 

not be excessively severe, (2) be narrowly tailored 

to apply only to those offenders who warrant such 

punishment, and (3) be applied consistently.”15
 3

Section One:

Introduction

Key 2011 Recommendations

Report to the Congress: Mandatory Minimum Penalties 

in the Federal Criminal Justice System (2011)

• A strong and effective sentencing guidelines system best serves the purposes of the Sentencing 

Reform Act. 

• If Congress decides to exercise its power to direct sentencing policy by enacting 

mandatory minimum penalties, such penalties should (1) not be excessively severe, (2) be 

narrowly tailored to apply only to those offenders who warrant such punishment, and (3) be 

applied consistently.

• Congress should request prison impact analyses from the Commission as early as possible in 

its legislative process whenever it considers enacting or amending criminal penalties.

Lastly, the Commission encouraged Congress 

to request prison impact analyses as early as 

possible in its legislative process whenever it 

considers enacting or amending criminal penalties 

to ensure that increasingly strained federal prison 

resources are focused on offenders who commit 

the most serious offenses.16 Guided by these 

general principles, the Commission expressed 

its belief that the current system of mandatory 

minimum penalties could be improved, and made 

several specific recommendations regarding the 

four major offense types studied in the report.17

In conjunction with its concluding 

recommendations in the 2011 Mandatory Minimum 

Report, the Commission explained that it “stands 

ready to work with Congress on measures that can 

be taken to enhance the strength and effectiveness 

of the current guidelines system and address 

the problems with certain mandatory minimum 

penalties identified in this report.”18 To that end, 

the Commission has continued to provide timely 

and objective sentencing data, information, and 

analysis to assist the efficient and effective exercise 

of congressional power to direct sentencing policy. 

This publication continues the Commission’s 

work in the area of federal mandatory minimums 

by highlighting recent developments, as well as 

providing updated sentencing data regarding the 

use and impact of mandatory minimum penalties. 

It analyzes the most recently available sentencing 

data to supplement the data presented in the 

2011 Mandatory Minimum Report, providing a 

detailed empirical research study of the effect 

of mandatory minimum penalties under federal 

law, including an updated assessment of the 

impact of mandatory minimum sentencing 

provisions on the federal prison population. 

Like the Commission’s recent publications 

on recidivism of federal offenders,19 this 

publication is designed to be the first in a series, 

with future publications focusing on mandatory 

minimum penalties for specific offense types. 
United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)
2 Key Findings
6 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

Key Findings

Building directly on its previous reports 

and analyses, this publication continues the 

Commission’s examination of mandatory minimum 

penalties in the federal system. 

As part of this overview analysis the 

Commission makes the following key findings.

Key 2017 Findings

1. Mandatory minimum penalties continue to result in long sentences in the 

federal system. 

• In fiscal year 2016, the average sentence length for offenders who were convicted of 

an offense carrying a mandatory minimum penalty was 110 months of imprisonment, 

nearly four times the average sentence (28 months) for offenders not convicted of an 

offense carrying a mandatory minimum penalty. 

• Even when such offenders receive relief from a mandatory minimum penalty, the average 

sentence (67 months) is still over two times greater than the average sentence for those 

not convicted of a mandatory minimum.

2. Mandatory minimum penalties continue to have a significant impact on the 

size and composition of the federal prison population. 

• While the percentage decreased slightly between 2010 and 2016, more than half (55.7%) 

of federal inmates in custody as of September 30, 2016 were convicted of an offense 

carrying a mandatory minimum penalty. 

• Among offenders in federal prison as of September 30, 2016, 42.7 percent were 

convicted of an offense carrying a mandatory minimum penalty and remained subject to 

that penalty at sentencing, which compared to 40.4 percent as of September 30, 2010.

3. Offenses carrying a mandatory minimum penalty were used less often, as 

the number and percentage of offenders convicted of an offense carrying a 

mandatory minimum penalty has decreased since fiscal year 2010.

• Just over one-fifth of all offenders sentenced in fiscal year 2016 (21.9%) were convicted 

of an offense carrying a mandatory minimum penalty, a difference of 5.3 percentage 

points from fiscal year 2010 (27.2%).
 7

Section Two:

Summary of Key Findings

Key 2017 Findings

4. While fewer offenders were convicted of an offense carrying a mandatory 

minimum penalty in recent years, those who were tended to be more serious 

offenders. 

• Offenders convicted of an offense carrying a mandatory minimum penalty were less 

likely to receive relief from such penalty at sentencing—38.7 percent of such offenders 

received relief in fiscal year 2016 compared to 46.7 percent in fiscal year 2010.

• Additionally, convictions for drug trafficking offenses carrying a mandatory minimum 

penalty were more likely to involve the use of a weapon, violence or credible threats of 

violence, or death or serious bodily injury (28.7% of such offenders had a conviction or 

guideline finding suggesting the existence of these factors compared to 20.7% in fiscal 

year 2010).

• Offenders convicted of such offenses were also more likely to have played a leadership 

role, as evidenced by application of a guideline adjustment for aggravating role (11.7% 

in fiscal year 2016 compared to 7.7% in fiscal year 2010), and were more likely to have 

three criminal history points or more (50.9% in fiscal year 2016 compared to 45.8% in 

fiscal year 2010).

5. There were significant demographic shifts in the data relating to mandatory 

minimum penalties.

• As they did in fiscal year 2010 (38.3%), Hispanic offenders continued to represent 

the largest group of offenders (40.4%) convicted of an offense carrying a mandatory 

minimum penalty in fiscal year 2016. However, other demographic data has shifted. 

• Unlike in fiscal year 2010, White offenders, as opposed to Black offenders, had the 

highest average sentence among offenders convicted of an offense carrying a mandatory 

minimum penalty (127 months), offenders relieved of the application of a mandatory 

minimum penalty at sentencing (73 months), and offenders subject to a mandatory 

minimum penalty at sentencing (150 months).

• While Black offenders convicted of an offense carrying a mandatory minimum penalty 

continued to receive relief from the mandatory minimum penalty least often, the gap 

between Black offenders and White offenders has narrowed. In fiscal year 2016, 73.2 

percent of Black offenders convicted of an offense carrying a mandatory minimum 

penalty remained subject to that penalty, compared to 70.0 percent of White offenders 

convicted of such an offense. This difference of 3.2 percent in fiscal year 2016, compares 

to a difference of 11.6 percent in fiscal year 2010 (65.1% of Black offenders convicted 

of an offense carrying a mandatory minimum penalty compared to 53.5% of White 

offenders).
United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)
3 Mandatory Minimums
10 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

What are Mandatory Minimum 

Penalties?

The term “mandatory minimum penalty” refers 

to a federal criminal statute requiring, upon 

conviction of a federal criminal offense and the 

satisfaction of criteria set forth in that statute, 

the imposition of a specified minimum term of 

imprisonment.20 Mandatory minimum penalties 

vary in length depending on the offense type 

and specified criteria, from two years for 

aggravated identity theft, to life in prison for 

certain drug trafficking offenses. 

Statutory Criteria Triggering Mandatory 

Minimum Penalties

The statutory criteria that trigger mandatory 

minimum penalties can be classified into at least 

one of three categories:

• penalties triggered by offense characteristics or 

elements of the offense of conviction; 

• penalties triggered by reference to another 

underlying offense; or 

• penalties triggered by the offender’s criminal 

history. 

The first category is best exemplified by the 

federal mandatory minimum penalties for drug 

trafficking offenses. As discussed in more detail 

below, the mandatory minimum penalty applies 

if the instant offense of conviction involves a 

specified element of which the offender is found 

guilty. In the case of drug offenses, these triggering 

characteristics include manufacturing, trafficking, 

importing or distributing a particular type of drug 

at quantities above a specified threshold. For 

example, under 21 U.S.C. § 841(a) and (b)(1), an 

offender convicted of trafficking 28 grams or more 

of a mixture or substance containing cocaine base 

(crack cocaine) is subject to a mandatory minimum 

penalty of not less than five years, whereas an 

offender convicted of an offense involving 280 

grams is subject to a mandatory minimum penalty 

of ten years. While drug quantity is the most 

common triggering factor in these offenses, other 

triggering characteristics include selling to a person 

under 21 years of age, selling within 1,000 feet of 

a school, and employing a person under 18 years 

of age.21

Under the second category, the mandatory 

minimum penalty generally does not apply to the 

underlying offense, but an additional consecutive 

mandatory minimum penalty applies if criteria 

specified in a separate statute are met. The most 

commonly applied mandatory minimum penalty of 

this type is 18 U.S.C. § 924(c), which requires a 

mandatory consecutive term of imprisonment for 

the possession or use of a firearm in connection 

with certain underlying offenses. Another example 

is 18 U.S.C. § 1028A, which requires a mandatory 

consecutive term of imprisonment for identity theft 

committed in connection with certain underlying 

offenses. These mandatory minimum penalties are 

often applied in addition to any sentence imposed 

for the other underlying offense, although they also 

can be charged as a sole count in an indictment. 

The third category involves mandatory 

minimum penalties that are triggered when the 

offender’s criminal history includes a conviction for 

one or more of a specified category of prior offenses. 

An example of this type of mandatory minimum 

penalty is found in 18 U.S.C. § 924(e), commonly 

known as the Armed Career Criminal Act. Section 

924(e) provides a mandatory minimum penalty of 

15 years of imprisonment if a person commits a 

firearms offense and has previously been convicted 

of three or more “violent felonies” or “serious drug 

offenses.” Another example is found in the context 

of drug trafficking offenses, in which the mandatory 

minimum penalty increases if the offender has 

a prior conviction for a felony drug offense. 
 11

Section Three:

Mandatory Minimums in the Federal System

Common Offenses Involving Mandatory 

Minimum Penalties 

To combat what it perceived as widespread 

problems resulting from drug trafficking and 

related crime, Congress made significant changes to 

mandatory minimum penalties beginning in 1951.22

Reversing its prior policy of disfavoring mandatory 

minimum penalties, Congress lengthened existing 

mandatory minimum penalties,23 enacted new 

ones, and expanded its use of them to offenses 

not previously covered by such penalties.24

The policy shift was short-lived: mandatory 

minimum penalties—particularly those for drug 

offenses—became increasingly unpopular by 

the late 1960s and Congress repealed nearly all 

of them.25 The pendulum swung back again, 

however, in the 1980s. Prevailing attitudes toward 

sentencing shifted away from a rehabilitative model 

toward controlling crime using “more certain, 

less disparate, and more appropriately punitive” 

sentences.26 On the heels of this shift, Congress 

again enacted many mandatory minimum penalties 

related to controlled substances and firearms, and 

significantly increased the length of several existing 

penalties.27 Today, most convictions under statutes 

requiring mandatory minimum penalties relate to 

controlled substances, firearms, identity theft, and 

child sex offenses.

Mandatory Minimum Penalties for Drug 

Offenses 

Mandatory minimum penalties in the federal 

system are most commonly associated with 

controlled substance offenses.28 In recent years, 

drug trafficking offenses have accounted for 

approximately two-thirds of the offenses carrying 

a mandatory minimum penalty, significantly higher 

than the next largest class of offenses.29 

This trend is not surprising given the increase 

in the number and severity of mandatory minimum 

penalties for drug trafficking offenses just before the 

initial guidelines were promulgated. The Anti-Drug 

Abuse Act of 198630 created mandatory minimum 

penalties for many drug trafficking offenses 

committed on or after October 27, 1986. Congress 

further extended the reach of these mandatory 

minimum penalties in 1988 to drug trafficking 

conspiracies, thereby broadening the scope of 

mandatory minimum penalties to include virtually 

all offenders in drug trafficking organizations.31 

The Anti-Drug Abuse Act also established 

the tiered penalty structure currently applicable 

to many federal drug trafficking offenses.32 This 

tiered structure can be found at 21 U.S.C. §§ 84133

and 96034—the most commonly prosecuted drug 

offenses carrying mandatory minimum penalties. 

Under both provisions, mandatory minimum 

penalties are first tied to the quantity and type of 

controlled substances in the offense. The first tier 

establishes a five-year mandatory minimum penalty 

and a maximum term of 40 years, while higher 

thresholds increase the mandatory minimum to ten 

years with a maximum term of life imprisonment.35

Triggering Thresholds for 

Common Controlled Substances

21 U.S.C. § 841

5-year 

Mandatory 

Minimum

10-year

Mandatory 

Minimum

Heroin 100 G 1 KG

Powder Cocaine 500 G 5 KG

Cocaine Base (crack) 28 G 280 G

Marijuana 100 KG 1,000 KG

Methamphetamine (pure) 5 G 50 G

Methamphetamine (mixture) 50 G 500 G
12 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

The drug trafficking offense mandatory 

minimum penalties—including those in sections 

841(b) and 960(b)—may also include enhanced 

penalties based on the defendant’s prior record.36

For example, offenders who otherwise qualify for 

the five-year mandatory minimum penalty would 

face an increased statutory range of ten years to 

life if they had a prior conviction for a felony drug 

offense.37 Similarly, a qualifying prior conviction 

increases a ten-year mandatory minimum to a 20-

year mandatory minimum (the maximum remains 

life), while offenders previously convicted of two or 

more prior drug felonies are subject to a mandatory 

minimum term of life.38 

The penalties for committing other drug 

offenses criminalized under title 21, United States 

Code, are also tied to the above-referenced penalty 

structure. For example, attempts or conspiracies to 

commit any drug offense are subject to the same 

penalty structure as the substantive offense.39

Congress also criminalized distributing drugs to 

persons who are under the age of 21 or who are 

pregnant, using persons under the age of 18 in drug 

operations, and distributing drugs in or near schools 

and colleges.40 Higher penalty ranges apply if 

death or serious bodily injury results from use of 

the controlled substance.41

Mandatory Minimum Penalties for Firearms 

Congress also expanded the scope and severity 

of mandatory minimum penalties for firearms 

offenses in the later part of the 20th Century.42 These 

firearms mandatory minimum penalties are currently 

set forth in two subsections of 18 U.S.C. § 924.

18 U.S.C. § 924(c)43

Section 924(c) of title 18, United States Code, 

prohibits using or carrying a firearm during and in 

relation to, or possessing a firearm in furtherance 

of, a crime of violence or a drug trafficking crime.44

The statute prescribes a mandatory minimum 

penalty of at least five years of imprisonment for 

committing the offense, with increasingly longer 

mandatory minimum penalties based on how 

the firearm was used (seven years if the firearm 

was brandished and ten years if the firearm was 

discharged) and the type of firearm involved in the 

crime (ten years if the firearm was a short-barreled 

rifle, a short-barreled shotgun, or a semiautomatic 

assault weapon and 30 years if the firearm was a 

machinegun, a destructive device, or was equipped 

with a silencer or muffler).45 Section 924(c) further 

provides that these mandatory minimum penalties 

must be imposed in addition to, and must run 

consecutively to, “any other term of imprisonment 

imposed on the person, including any term of 

imprisonment imposed for the [underlying] 

crime of violence or drug trafficking crime ....”46

Section 924(c) also establishes longer 

mandatory minimum penalties of 25 years for each 

“second or subsequent conviction” of a section 

924(c) offense.47 The Supreme Court has held that 

when multiple section 924(c) counts are charged 

in the same proceeding, this longer mandatory 

minimum penalty of 25 years applies.48 Thus, the 

longer recidivist mandatory minimum penalty must 

be served consecutively to any sentences imposed 

2011 RECOMMENDATIONS

In its 2011 Mandatory Minimum Report, the 

Commission recommended that Congress 

marginally expand the safety valve at 18 

U.S.C. § 3553(f), and reassess the severity and 

scope of the recidivist enhancements for drug 

offenses.
 13

Section Three:

Mandatory Minimums in the Federal System

for the underlying offenses and other section 924(c) 

offenses, even when all of the offenses were charged 

in a single indictment. This practice of charging 

multiple violations of section 924(c) within the 

same indictment is commonly known as “stacking” 

mandatory minimum penalties.

The Armed Career Criminal Act, 

18 U.S.C. § 924(e)49

The Armed Career Criminal Act requires a 

minimum 15 years of imprisonment if the defendant 

violates 18 U.S.C. § 922(g) and has at least three 

prior convictions for a violent felony or a serious 

drug offense.50 Section 922(g) makes it unlawful 

for certain prohibited persons, including convicted 

felons, fugitives from justice, persons dishonorably 

discharged from the armed forces, and aliens who 

are illegally or unlawfully in the United States, 

to possess a firearm or ammunition that is in or 

affecting commerce, to ship or transport a firearm 

or ammunition in interstate or foreign commerce, 

or to receive any firearm or ammunition which has 

been shipped or transported in interstate or foreign 

commerce.51

Mandatory Minimum Penalties for Child Sexual 

Exploitation and Related Offenses52

Congress has also enacted mandatory minimum 

penalties to combat child sexual exploitation. 

These penalties have expanded since Congress first 

outlawed the production of child pornography in 

1978 and included a mandatory minimum penalty 

of two years of imprisonment for repeat offenders.53

By 1996, Congress had increased the penalties 

for production of child pornography to require 

a mandatory minimum penalty of ten years of 

imprisonment for first-time offenders, 15 years of 

imprisonment for offenders with a prior conviction 

for a child sexual exploitation offense, and at least 

30 years of imprisonment for offenders with two 

such prior convictions.54 

The Prosecutorial Remedies and Other 

Tools to end the Exploitation of Children Today 

(PROTECT) Act of 200355 established new 

mandatory minimum penalties and increased 

existing mandatory minimums for certain child 

sexual abuse and child pornography crimes. 

Among other changes, Congress increased the 

mandatory minimum penalties for producing child 

pornography and related conduct from ten to 15 

years of imprisonment for first-time offenders, 

from 15 to 25 years of imprisonment for repeat 

child exploitation offenders, and from 30 to 35 

years of imprisonment for offenders with more 

than two prior child exploitation convictions.56 The 

PROTECT Act further increased the mandatory 

minimum penalty for the buying or selling of 

children from 20 to 30 years of imprisonment,57 and 

the mandatory minimum penalty for possession of 

child pornography by a recidivist offender from two 

to ten years of imprisonment.58 Finally, Congress 

established new mandatory minimum penalties 

for existing offenses, most notably by requiring 

at least five years of imprisonment for receipt and 

distribution of child pornography,59 as well as a 

2011 RECOMMENDATIONS

In its 2011 Mandatory Minimum Report, the 

Commission recommended that Congress 

consider several changes to the firearms 

mandatory minimum penalties, including 

(1) amending 18 U.S.C. § 924(c) so that the 

enhanced mandatory minimum penalties 

for a “second or subsequent” offense apply 

only to prior convictions, and that such 

penalties be reduced, and (2) eliminating the 

“stacking” requirement in 18 U.S.C. § 924(c) to 

give the sentencing court discretion to impose 

sentences for multiple violations of section 

924(c) concurrently. 
14 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

new mandatory minimum penalty of five years 

of imprisonment for enticing a minor to travel in 

interstate commerce for criminal sexual activity.60

Congress again increased existing mandatory 

minimum penalties and established new mandatory 

minimum penalties for certain sex offenses three 

years later in the Adam Walsh Child Protection 

and Safety Act of 2006.61 That Act, among other 

provisions, added a new mandatory minimum 

penalty of 15 years of imprisonment for sex 

trafficking,62 increased the mandatory minimum 

penalty from five to ten years of imprisonment for 

enticing a minor to engage in criminal activity,63

and established a mandatory minimum penalty of 

20 years of imprisonment for engaging in a child 

exploitation enterprise.64 The Act also created new 

offenses and mandatory minimum penalties relating 

to failure to register as a sex offender.65 

Thus, as currently in effect, federal law provides 

numerous mandatory minimum penalties for two 

types of child exploitation offenses: (1) sexual abuse 

(also called “contact”) offenses, i.e., those offenses 

involving actual or attempted sexual contact with 

the victim regardless of the victim’s age; and (2) 

child pornography (other than an offense related 

to the production of pornography depicting an 

actual child, which is deemed a “contact” offense). 

The current penalties for each category are briefly 

summarized. 

Sexual Abuse Offenses

These provisions are primarily found in the 

following sections of title 18:

• § 1591(b)(1) and (2) (minimum ten- or 15-year 

term for sex trafficking of a minor depending 

on the age of the victim);

• § 2241(c) (minimum 30-year term for traveling 

across state lines with the intent to have sex with 

a child under 12 years of age or for crossing 

state lines and having sex with a child between 

the ages of 12 and 16 under certain aggravating 

circumstances);

• §§ 2251(e) and 2260(c)(1) (minimum term of 15 

years for production of child pornography and 

enhanced minimum terms if such a defendant 

has a prior felony conviction for an enumerated 

sex offense);

• § 2251A(a) & (b) (minimum term of 30 years 

for buying or selling, or otherwise transferring, 

children to participate in the production of child 

pornography);

• § 2422(b) (minimum term of ten years for 

using mails or facilities or means of commerce 

to cause a minor to engage in prostitution or 

other criminal sexual activity);

• § 2423(a) (minimum term of ten years for 

transporting a minor in commerce to engage in 

prostitution or other criminal sexual activity); 

and

• § 3559(e) (mandatory life imprisonment for 

second conviction for certain sex offenses 

against minors).
 15

Section Three:

Mandatory Minimums in the Federal System

Child Pornography Offenses

The most common child pornography offenses 

are set forth at 18 U.S.C. §§ 2251, 2252, 2252A, 

and 2260, which broadly prohibit a variety of 

acts related to the distribution,66 transportation 

(including by shipping or mailing),67 importation, 

receipt, and possession of child pornography, 

including attempted acts and conspiracies to 

commit such acts.68 An additional statute, 18 U.S.C. 

§ 1466A, prohibits possession, receipt, distribution, 

and production of “obscene visual representations 

of the sexual abuse of children.” 

The statutory penalty ranges for violations of 

these provisions vary in severity depending on both 

the act involved and the defendant’s prior criminal 

record. Simple possession of child pornography 

is punishable by up to ten years in federal prison, 

but does not carry a mandatory minimum term of 

imprisonment.69 If a defendant has a prior federal 

or state conviction for one or more enumerated sex 

offenses,70 however, the penalty range for simple 

possession increases to a mandatory minimum term 

of ten years and a maximum term of 20 years of 

imprisonment.71

Child pornography offenses for transportation 

(including mailing or shipping), receipt, distribution, 

and possession with the intent to distribute or sell 

child pornography offenses each carry a mandatory 

minimum term of five years of imprisonment and 

a maximum term of 20 years.72 If a defendant has 

a prior federal or state conviction for one or more 

enumerated sex offenses, however, the penalty 

range increases to a mandatory minimum term 

of 15 years and a maximum term of 40 years of 

imprisonment.73

Violations of section 1466A involving receipt, 

distribution, or production of “obscene visual 

representations of the sexual abuse of children” 

carry a mandatory minimum penalty of five years 

and a maximum of 20 years of imprisonment, 

while violations of section 1466A involving simple 

possession of such obscene material carry no 

mandatory minimum penalty and have a statutory 

maximum of ten years of imprisonment.74

Mandatory Minimum Penalties for Identity 

Theft75

Section 1028A of title 18 provides enhanced 

punishment for aggravated identity theft, including 

a required two-year mandatory minimum penalty. 

This provision, which was enacted in the Identity 

Theft Penalty Enhancement Act of 2004,76

provides, “[w]hoever, during and in relation to 

any felony violation enumerated in subsection (c), 

knowingly transfers, possesses, or uses, without 

lawful authority, a means of identification of 

another person shall, in addition to the punishment 

provided for such felony, be sentenced to a term 

of imprisonment of two years.”77 The enumerated 

felony offenses include theft offenses,78 offenses 

involving false statements and fraud,79 offenses 

related to nationality and citizenship,80 offenses 

related to passports and visas,81 and immigration 

offenses.82

2011 RECOMMENDATIONS

In its 2011 Mandatory Minimum Report, the 

Commission recommended that Congress 

review current mandatory minimum penalties 

for offenses involving the receipt of child 

pornography that are virtually indistinguishable 

from possession offenses. As set forth in the 

Commission’s Report to the Congress: Federal 

Child Pornography Offenses (2012), available 

sentencing data suggests that the mandatory 

minimum penalties for these receipt offenses 

may be excessively severe and, as a result, are 

applied inconsistently.
16 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

Section 1028A requires that the mandatory twoyear term of imprisonment be imposed consecutively 

to “any other term of imprisonment imposed on the 

person under any other provision of law, including 

any term of imprisonment imposed for the felony 

during which the means of identification was 

transferred, possessed, or used.”83 Moreover, the 

statute directs the sentencing court not to reduce any 

sentence for the underlying felony, assuming the 

defendant is convicted separately of the underlying 

felony, to “compensate for, or otherwise take into 

account, any separate term of imprisonment” to be 

imposed for a violation of section 1028A.84

The statute further provides that sentences 

for multiple violations of section 1028A may be 

“stacked,” but that the court may, in its discretion, 

run the sentence for any additional section 1028A 

counts “concurrently, in whole or in part, . . . with 

another term of imprisonment that is imposed by 

the court at the same time on that person for an 

additional violation of [section 1028A].”85

How Are Mandatory Minimum Penalties 

Incorporated Into the Guidelines? 

Congress charged the Commission with 

promulgating guidelines that are “consistent with 

all pertinent provisions” of federal law86 and with 

providing sentencing ranges that are “consistent 

with all pertinent provisions of title 18, United 

States Code.”87 To that end, the Commission has 

incorporated mandatory minimum penalties into the 

guidelines since their inception, and has continued 

to incorporate new mandatory minimum penalties 

as enacted by Congress.88

In the initial guidelines, the Commission 

generally incorporated mandatory minimum 

penalties by establishing guideline ranges slightly 

above the mandatory minimum penalty for offenders 

convicted of offenses carrying a mandatory 

minimum penalty in Criminal History Category 

I.89 At the time, the Commission determined that 

incorporating mandatory minimum penalties in this 

way fulfilled its statutory mandate to “assure that 

the guidelines reflect the general appropriateness 

of imposing a lower sentence than would otherwise 

be imposed, including a sentence that is lower than 

that established by statute as a minimum sentence, 

to take into account a defendant’s substantial 

assistance....”90 

While this policy remained in place for much 

of the guidelines’ history, the Commission has 

varied its methods of incorporating mandatory 

minimum penalties into the guidelines over time 

based on its continuing research, experience, 

and analysis.91 As Congress has enacted new 

mandatory minimum penalties, the Commission 

has drawn on its experience with particular 

offenses and related guidelines to incorporate the 

new penalties. Furthermore, the Commission 

has amended its incorporation of certain types of 

mandatory minimum penalties—most notably, drug 

offenses—over time to account for other changes in 

the statutes and the guidelines. 

For example, the Commission has changed 

the way in which mandatory minimum penalties 

for drug offenses are incorporated in the Drug 

Quantity Table at USSG §2D1.1 in recent years. 

When Congress passed the Anti-Drug Abuse Act of 

1986, the Commission responded by incorporating 

the statutory mandatory minimum penalties into the 

guidelines and extrapolating upward and downward 

to set sentencing guideline ranges for all drug 

quantities. The quantity thresholds in the Drug 

Quantity Table were set to provide base offense 

levels corresponding to guideline ranges that were 

slightly above the statutory mandatory minimum 

penalties. Accordingly, offenses involving drug 

quantities that triggered a five-year statutory 

minimum were assigned a base offense level (level 
 17

Section Three:

Mandatory Minimums in the Federal System

26) corresponding to a sentencing guideline range 

of 63 to 78 months for a defendant in Criminal 

History Category I (a guideline range that exceeds 

the five-year statutory minimum penalty for such 

offenses by at least three months). Similarly, 

offenses that triggered a ten-year statutory minimum 

penalty were assigned a base offense level (level 

32) corresponding to a sentencing guideline range 

of 121 to 151 months for a defendant in Criminal 

History Category I (a guideline range that exceeds 

the ten-year statutory minimum penalty for such 

offenses by at least one month).92

The Commission recently reduced the drug 

guidelines for all drugs by two levels, changing 

how the applicable statutory mandatory minimum 

penalties are incorporated into the Drug Quantity 

Table.93 Specifically, the amendment reduced the 

offense levels assigned to the quantities that trigger 

the statutory mandatory minimum penalties by 

two, resulting in corresponding guideline ranges 

that include, as opposed to exceed, the mandatory 

minimum penalties.94 The Commission determined 

that “changes in the law and recent experience with 

similar reductions in base offense levels for crack 

cocaine offenses indicate that setting base offense 

levels above the mandatory minimum penalties is 

no longer necessary to provide adequate incentives 

to plead guilty or otherwise cooperate with 

authorities.”95 Instead, the Commission noted that 

adequate incentives exist through operation of the 

statutory “safety valve” provision enacted in 1994, 

and related guideline reductions.96 The change also 

reflected the fact that the guidelines more adequately 

differentiate among drug trafficking offenders 

than when the Drug Quantity Table was initially 

established through numerous enhancements and 

adjustments.97

As another example, the Commission set a 

base offense level that produced a guideline range 

entirely below the mandatory minimum penalty 

for offenders in Criminal History Category I when 

Congress established a new mandatory minimum 

of five years of imprisonment for existing child 

pornography trafficking and receipt offenses in 

the PROTECT Act. The Commission modified its 

general approach at the time because experience 

and data showed that several existing enhancements 

(e.g., use of a computer, material involving children 

under 12 years of age, number of images) in the 

applicable guideline, USSG §2G2.2, apply in 

almost every case.98 

The Commission also addressed how to 

incorporate other types of mandatory minimum 

penalties, including those requiring consecutive 

terms of imprisonment. To ensure the guidelines’ 

consistency with federal law, the Commission has 

incorporated consecutive penalties by specifying 

that the guideline sentence for that count is the 

minimum term required by the statute. For 

example, USSG §2K2.4(b) provides that for an 

offender convicted of violating section 924(c), “the 

guideline sentence [for that count] is the minimum 

term of imprisonment required by statute.”99

Finally, for those offenses carrying a mandatory 

minimum penalty not specifically referenced to a 

particular guideline,100 or where the mandatory 

minimum penalty is not specifically incorporated, 

the guidelines provide a catchall instruction 

ensuring that any applicable mandatory minimum 

penalty controls.101 Similarly, the guidelines ensure 

that no portion of an offender’s guideline range falls 

below an applicable mandatory minimum penalty 

by providing that the mandatory minimum penalty 

becomes the bottom of the guideline range where 

some, but not all, of the guideline range falls below 

the mandatory minimum penalty.102
18 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

Can Offenders Obtain Relief From 

Mandatory Minimum Penalties?

Not all offenders convicted of an offense 

carrying a mandatory minimum penalty are 

sentenced to the minimum term of imprisonment 

specified in the statute of conviction.103 Under the 

current system,104 a sentencing court can impose a 

sentence below an otherwise applicable statutory 

mandatory minimum penalty if: (1) the prosecution 

files a motion based on the defendant’s “substantial 

assistance” to authorities in the investigation or 

prosecution of another person; or (2) in certain 

drug trafficking cases, the defendant qualifies for 

the statutory “safety valve” contained in 18 U.S.C. 

§ 3553(f).

Substantial Assistance

Two related provisions allow a sentencing 

court to impose a term of imprisonment lower than 

a mandatory minimum penalty in cases where a 

defendant provides substantial assistance in the 

investigation or prosecution of another person: 18 

U.S.C. § 3553(e) and Federal Rule of Criminal 

Procedure 35(b).

 

18 U.S.C. § 3553(e)

Section 3553(e), which was enacted as part 

of the Anti-Drug Abuse Act of 1986,105 grants 

a court limited authority to impose a sentence 

below a mandatory minimum penalty at the time 

of sentencing. Specifically, the section provides 

that “[u]pon motion of the Government, the court 

shall have the authority to impose a sentence 

below a level established by statute as a minimum 

sentence so as to reflect a defendant’s substantial 

assistance in the investigation or prosecution of 

another person who has committed an offense.”106

Section 3553(e) further requires such a sentence 

to “be imposed in accordance with the guidelines 

and policy statements issued by the Sentencing 

Commission pursuant to section 994 of title 28, 

United States Code.”107

As directed by Congress, the Commission 

incorporated this statutory mechanism for relief 

from mandatory minimum penalties into the 

guidelines. USSG §5K1.1, consistent with the 

requirements of the Commission’s organic statute,108

authorizes a departure from the guideline range if 

the offender has provided substantial assistance to 

law enforcement. In contrast to section 3553(e), 

however, §5K1.1 does not explicitly authorize 

courts to impose a sentence below a mandatory 

minimum penalty but instead includes a reference 

to 18 U.S.C. § 3553(e).109 As such, even if the 

government files a motion under §5K1.1, the 

sentencing court may not impose a sentence below 

a statutory mandatory minimum penalty unless 

the government also files a motion pursuant to 18 

U.S.C. § 3553(e).110 

Federal Rule of Criminal Procedure 35(b)

Relief under section 3553(e) is, in most 

respects, identical to the relief provided under Rule 

35 of the Federal Rules of Criminal Procedure, 

as both require substantial assistance and both 

require a government motion. The most significant 

difference between the two types of motions is 

timing: Rule 35(b) motions are made after the 

original sentencing and so require a resentencing 

if granted, while section 3553(e) motions are made 

before sentencing and ruled on at the time of the 

original sentencing.111

Rule 35(b) permits a court, upon the 

government’s motion, to impose a new, reduced 

sentence that considers post-sentencing substantial 

assistance. Rule 35(b)(1) provides that, “[u]pon 

the government’s motion made within one year of 

sentencing, the court may reduce a sentence if the 
 19

Section Three:

Mandatory Minimums in the Federal System

defendant, after sentencing, provided substantial 

assistance in investigating or prosecuting another 

person.”112 Pursuant to Rule 35(b)(2), motions 

may also be made later than one year after the 

original sentence if the “defendant’s substantial 

assistance involved”: (1) “information not known 

to the defendant until one year or more after 

sentencing,” (2) information provided within one 

year that “did not become useful to the government 

until more than one year after sentencing,” or (3) 

if the defendant could not have “reasonably . . . 

anticipated” that the information in question would 

be useful until more than a year after sentencing.113

In evaluating whether the substantial assistance 

is, in fact, sufficient to warrant a reduction under 

Rule 35(b), “the court may consider the defendant’s 

presentence assistance.”114 

Rule 35(b) expressly applies to sentences 

that would otherwise be subject to a mandatory 

minimum penalty, authorizing the sentencing 

court to “reduce the sentence to a level below the 

minimum sentence established by statute.”115 

Statutory “Safety Valve” Relief

The second relief provision, codified at 18 

U.S.C. § 3553(f) (Limitation on Applicability of 

Mandatory Minimum Penalties in Certain Cases), 

is commonly referred to as the “safety valve.”116

Unlike a substantial assistance departure—which 

applies to all types of federal offenses carrying a 

mandatory minimum penalty—the safety valve 

statute only applies in cases in which a defendant 

faces a mandatory minimum penalty after being 

convicted of a drug trafficking offense listed in the 

statute.117 In addition, the safety valve only applies 

if the following five criteria are met:

• the defendant does not have more than one 

criminal history point, as determined under the 

sentencing guidelines;

• the defendant did not use violence or credible 

threats of violence or possess a firearm or 

other dangerous weapon (or induce another 

participant to do so) in connection with the 

offense;

• the offense did not result in death or serious 

bodily injury to any person;

• the defendant was not an organizer, leader, 

manager, or supervisor of others in the offense, 

as determined by the sentencing guidelines 

and was not engaged in a continuing criminal 

enterprise, as defined in 21 U.S.C. § 848; and

• no later than the time of the sentencing hearing, 

the defendant has truthfully provided to the 

Government all information and evidence 

the defendant has concerning the offense or 

offenses that were part of the same course of 

conduct or of a common scheme or plan, but 

the fact that the defendant has no relevant or 

useful or other information to provide or that the 

government is already aware of the information 

shall not preclude a determination by the court 

that the defendant has not complied with this 

requirement.

Where these criteria are met, section 3553(f) 

provides that judges shall impose a sentence without 

regard to the statutory mandatory minimum penalty 

for the covered offenses. 

For defendants who qualify for relief from 

the mandatory minimum penalty pursuant 

to the statutory safety valve, the guideline at 

§5C1.2 directs the court to “impose a sentence in 

accordance with the applicable guidelines without 

regard to any statutory minimum sentence.”118 The 

drug trafficking guideline at USSG §2D1.1 also 

provides for a 2-level decrease if the defendant 

meets the safety valve subdivision criteria listed at 

USSG §5C1.2.119 This decrease applies regardless 

of whether the defendant was convicted of an 

offense carrying a mandatory minimum penalty.120
United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)
4 Recent Changes
22 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

Recent Changes

Since the Commission’s 2011 Mandatory 

Minimum Report was issued in October of 2011, the 

landscape of federal mandatory minimum penalties 

has continued to evolve. Congress has continued to 

explore criminal justice reform, including possible 

changes to certain mandatory minimum penalties. 

Additionally, changes to Department of Justice 

charging policy and recent Supreme Court case 

law have impacted charging practices relating to 

mandatory minimum penalties. As these changes 

likely impacted data trends since the Commission’s 

last report, they are briefly summarized here. 

Impact of the Fair Sentencing Act of 2010

The last significant change to mandatory 

minimum penalties came in the Fair Sentencing 

Act of 2010 (“FSA”), which amended penalties 

for crack cocaine offenses.121 The Act, which 

followed four Commission reports on federal 

cocaine sentencing policy,122 altered the mandatory 

minimum penalties established by Congress in 1986 

and 1988 by repealing the mandatory minimum 

penalty for simple possession of crack cocaine and 

by increasing the quantities required to trigger the 

five- and ten-year mandatory minimum penalties 

for crack cocaine trafficking offenses from five to 

28 grams and 50 to 280 grams, respectively.123 The 

Act also directed the Commission to provide higher 

guideline sentences for all drug offenders based on 

the presence of specified aggravating factors, such 

as bribing a law enforcement official to facilitate 

the offense, maintaining an establishment for 

manufacturing or distributing controlled substances, 

or obstructing justice while holding an aggravating 

role in the offense. The Act further directed the 

Commission to provide lower guideline sentences 

for certain offenders who receive a guideline 

adjustment for being a minimal participant in the 

offense.124

Enactment of the FSA triggered responses from 

the Commission, the Department of Justice, and the 

Supreme Court, all of which influenced the impact 

of the Act’s changes. In 2011, the Commission 

implemented the FSA’s new penalties in the 

guidelines and subsequently made the changes 

retroactive.125 After initially advising federal 

prosecutors that the new penalties would apply 

prospectively only to offense conduct occurring on 

or after the FSA’s enactment date, the Department 

of Justice issued subsequent guidance that the FSA’s 

new penalties applied to sentencings occurring on 

or after August 3, 2010, regardless of when the 

offense took place.126 Finally, the Supreme Court 

similarly held that the FSA’s penalties applied to 

offenses committed prior to August 3, 2010, but 

sentenced after that date.127

As directed by Congress,128 the Commission 

studied the impact of the changes made by the 

FSA and issued a report in August of 2015.129

The Commission’s study concluded that the FSA 

reduced the disparity between crack and powder 

cocaine sentences, reduced the federal prison 

population, and appears to have resulted in fewer 

federal prosecutions for crack cocaine. The report 

further observed that these impacts occurred while 

crack cocaine use continued to decline.130

Criminal Justice Reform

Since passage of the FSA in 2010, Congress 

has continued to express interest in exploring the 

scope and severity of current mandatory minimum 

penalties. Members of Congress have introduced 

numerous pieces of bipartisan legislation proposing 

various sentencing changes (many of which reflect 

recommendations made by the Commission in its 

2011 Mandatory Minimum Report), including:

• reducing mandatory minimum penalties for 

certain drug offenses;
 23

Section Four:

Recent Changes in the Charging of Mandatory Minimum Offenses

• broadening the existing “safety valve” to 

include offenders with prior misdemeanor 

convictions, while excluding offenders with 

prior felony convictions, or prior violent or 

drug trafficking convictions;

• creating a second “safety valve” allowing 

judges to sentence certain low-level offenders 

below an otherwise applicable ten-year 

mandatory minimum penalty;

• revising the mandatory minimum penalties for 

firearms offenses, including changes to section 

924(c) and the Armed Career Criminal Act; and 

• making the statutory changes in the Fair 

Sentencing Act of 2010 retroactive.131

While these and other proposals have not 

proceeded beyond the respective Committees in 

the U.S. Senate and House of Representatives, 

Members of Congress have continued to express an 

intent to explore these issues in the current or future 

sessions. 

Changes in Charging Practices

In addition to legislative changes, there were 

also significant legal and administrative changes 

relating to the charging of mandatory minimum 

penalties that impacted the data presented in this 

publication. 

First, beginning in 2010 and continuing 

through May of 2017, the Department of Justice 

amended its guidance to federal prosecutors 

regarding which offenses to charge, including more 

targeted charging of offenses carrying a mandatory 

minimum penalty. Since 2003, Department of 

Justice policy had directed prosecutors to charge the 

most serious, readily provable offenses supported 

by the facts and that would result in the longest 

sentence.132 In 2010, however, then-Attorney 

General Eric Holder issued a memorandum revising 

this guidance to provide that a prosecutor “should 

ordinarily charge” the most serious offense. The 

memorandum further instructed that this charging 

decision required an individualized assessment to 

ensure that the charges fit the specific circumstances 

of the case, are consistent with the purposes of the 

federal criminal laws, and maximize the impact of 

federal resources. The “Holder Memorandum,” as 

it has come to be called, further required the same 

individualized assessment in plea bargaining and 

sentencing advocacy.133 

Further changes in charging practices came in 

the wake of the Supreme Court’s decision in Alleyne 

v. United States.

134 In Alleyne, the Court revisited a 

longstanding controversy in criminal law regarding 

the method of proof the Sixth Amendment requires 

to impose a mandatory minimum sentence. It 

has been settled since the Court’s 2000 decision 

in Apprendi v. New Jersey135 that any facts that 

increase a criminal defendant’s maximum possible 

sentence are considered “elements” of the criminal 

offense, which must be proved to a jury beyond 

a reasonable doubt. In the context of mandatory 

minimums, the Court had previously decided in 

Harris v. United States136 that Apprendi did not 

apply to facts that would increase a defendant’s 

mandatory minimum sentence, and therefore that 

a judge could constitutionally decide to apply a 

mandatory minimum sentence based on facts not 

proven to a jury. 

Overruling the Harris decision, Alleyne held 

that facts that increase a mandatory minimum 

penalty are elements that must be submitted to a 

jury and found beyond a reasonable doubt. Relying 

on the logic of Apprendi, the Court concluded that 

the definition of “elements” necessarily includes 

facts that not only increase the maximum penalty, 

but also those that increase the minimum penalty, 

because both affect the sentencing range to which 

a defendant is exposed. As the Court notes, “[i]t is 

impossible to dissociate the floor of a sentencing 
24 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

range from the penalty affixed to the crime.”137

Increasing the legally prescribed floor indisputably 

aggravates the punishment and “heightens the loss 

of liberty associated with the crime,” because the 

government can invoke the mandatory minimum 

to require a harsher punishment than would have 

resulted otherwise.138 The Court reasoned that 

“[t]his reality demonstrates that the core crime and 

the fact triggering the mandatory minimum sentence 

together constitute a new, aggravated crime, each 

element of which must be submitted to the jury.”139

The Court concluded that, by defining facts that 

increase the mandatory minimum sentence to be 

elements of the crime, the defendant can predict the 

potential penalties from the face of the indictment, 

and the Court has preserved “the historic role of 

the jury as an intermediary between the State and 

criminal defendants.”140 

While the issue in Alleyne was a seven year 

sentence imposed on a defendant for having 

“brandished” a firearm while “using or carrying 

[it] during and in relation to a crime of violence,” 

courts have extended its application to other 

mandatory minimum offenses, including drug 

offenses. Applying Alleyne, courts have held that 

a factfinder must determine the type and quantity 

of controlled substances involved in the offense 

if the drug type and/or quantity increases the 

statutorily prescribed minimum sentence.141 These 

decisions have directly impacted the application of 

mandatory minimum penalties by altering the way 

in which mandatory minimum enhancements must 

be charged and proven by the government. 

After Alleyne, the Department of Justice 

further modified its charging policies as part of 

then-Attorney General Holder’s Smart on Crime 

Initiative.142 Noting that “the Supreme Court’s 

decision in Alleyne heightens the role a prosecutor 

plays in determining whether a defendant is 

subject to a mandatory minimum sentence,” the 

Department of Justice issued a new policy refining 

its charging policy regarding mandatory minimums 

for certain nonviolent, low-level drug offenders.143

Specifically, the memorandum provides that 

“prosecutors should decline to charge the quantity 

necessary to trigger a mandatory minimum sentence 

if the defendant meets each of the following criteria:

• the defendant’s relevant conduct does not 

involve the use of violence, the credible threat 

of violence, the possession of a weapon, the 

trafficking of drugs to or with minors, or the 

death or serious bodily injury of any person; 

• the defendant is not an organizer, leader, 

manager, or supervisor of others within a 

criminal organization; 

• the defendant does not have significant ties 

to large-scale drug trafficking organizations, 

gangs, or cartels; and 

• the defendant does not have a significant 

criminal history. A significant criminal history 

will normally be evidenced by three or more 

criminal history points but may involve fewer 

or greater depending on the nature of any prior 

convictions.”144 

The memorandum provides that prosecutors 

should decline to pursue the recidivist enhancements 

provided for in title 21 (and therefore, not file an 

information pursuant to 21 U.S.C. § 851) “unless 

the defendant is involved in conduct that makes the 

case appropriate for severe sanctions.”145 

Given their timing, it is likely that many, if not 

all, of the above changes have in some way impacted 

the data discussed in this publication, including the 

current population of the Federal Bureau of Prisons 

(BOP). The Commission further notes, however, 

that the impacts from these changes and recent data 

trends may not be permanent. Different trends may 

emerge as policies regarding mandatory minimum 

penalties continue to evolve. This evolving nature 

is reflected both in the changes between 2010 and 

2016 discussed above and in other more recent 
 25

Section Four:

Recent Changes in the Charging of Mandatory Minimum Offenses

changes, discussed below, that will also impact 

charging decisions and sentencing in future years. 

First, the Department of Justice recently 

rescinded the changes made in both the 2010 

and 2013 memoranda discussed above. On May 

10, 2017, Attorney General Jeff Sessions issued 

revised guidance emphasizing the Department’s 

“responsibility . . . to fulfill [its] role in a way that 

accords with the law, advances public safety, and 

promotes respect for our legal system,” and “noting 

that “[i]t is of the utmost importance to enforce the law 

fairly and consistently.” Relying on these principles, 

the memorandum instructs that “prosecutors 

should charge and pursue the most serious, readily 

provable offense.” The memorandum further 

provides that “the most serious offenses are those 

that carry the most substantial guidelines sentence, 

including mandatory minimum sentences.” The 

memorandum provides for “circumstances in 

which good judgement would lead a prosecutor 

to conclude that a strict application of the above 

charging policy is not warranted,” thus allowing for 

exceptions with supervisory approval.146

Additionally, the Supreme Court recently 

issued its holding in Dean v. United States,

147 which 

addressed the issue of sentencing an offender 

charged with possessing a firearm in furtherance 

of a crime of violence, in violation of 18 U.S.C. 

§924(c). The Court unanimously held that 18 U.S.C. 

§ 924(c) does not prevent a sentencing court from

considering a mandatory sentence imposed under

that provision when determining the sentence for

the underlying predicate offense. The Court began

by reviewing the factors that sentencing courts are

required to consider when setting an appropriate

sentence and noted that generally, a court “imposing

a sentence on one count of conviction [can] consider 

sentences imposed on other counts.”148 In this

case, both the fact that Dean would not be released

from prison until after he was 50 years old, and the

deterrent effect of the 30-year mandatory minimum

sentence (based on the mandatory stacking of 

consecutive five and 25-year penalties for his two 

section 924(c) convictions) were factors that the 

sentencing court could consider. The Court rejected 

the government’s contention that sentencing courts 

should not consider the effect of other sentences 

until it is deciding whether sentences should run 

consecutively or concurrently. Here, the Court 

noted that this interpretation goes against the 

practice of the government in “sentencing package 

cases.” In those cases, where some but not all 

counts of conviction are vacated on appeal, the 

government “routinely argues” that the entire 

sentence should be vacated so that the court may 

increase the sentences for any remaining counts.

The Court also found that there is nothing in 

the text of section 924(c) that prohibits a court 

from considering the mandatory sentence when 

calculating the sentence for the predicate offense. 

Neither the fact that the mandatory sentence must 

be imposed “in addition to” the punishment for the 

predicate offense, nor the fact that the additional 

sentence must be imposed “consecutively” to 

the sentence for the predicate offense affects 

the sentencing court’s discretion to consider 

the mandatory minimum when calculating each 

individual sentence. The Court noted that the 

government was asking for an additional limitation 

to be read into the text, which is inappropriate, 

particularly when Congress has shown that it 

knows how to “make explicit what the Government 

argues is implicit in § 924(c).” It did this in 18 

U.S.C. § 1028A, which deals with identify theft 

and provides that in determining the sentence for 

the predicate felony, “a court shall not in any way 

reduce the term to be imposed for such crime so as 

to compensate for, or otherwise take into account, 

any separate term of imprisonment imposed or to 

be imposed for a violation of this section.”149
United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)
5 Data Analysis
28 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

The Commission’s Updated Study

Since the issuance of its 2011 Mandatory 

Minimum Report, the Commission has continued 

its study of the scope, use, and impact of mandatory 

minimum penalties in the federal system. The 

Commission has regularly provided updated 

data on mandatory minimums in various forms 

throughout the past six years, through the issuance 

of Quick Facts publications,150 as well as in 

testimony on the criminal justice reforms recently 

under consideration by Congress.151 Nevertheless, 

given the changes highlighted above, as well as the 

ongoing interest in this subject, the Commission 

provides this publication to further update the 

information and analyses in its 2011 Mandatory 

Minimum Report regarding the application of 

mandatory minimum penalties for all offenses. 

Future publications will provide targeted analyses 

for specific types of offenses. 

It is the Commission’s intent that the data in 

this publication will further inform the ongoing 

discussion regarding mandatory minimum 

penalties as Congress, the Department of Justice, 

and others examine the status of current legislation 

and policies, and explore the need for additional 

changes in the future. 

Methodology

Records Collection

Pursuant to 28 U.S.C. § 994(w), a district 

court is directed to submit to the Commission the 

following sentencing documents in each felony or 

Class A misdemeanor case: the presentence report 

(PSR), the judgment and commitment order (J&C), 

the statement of reasons form (SOR), the indictment 

or other charging instrument, and any plea 

agreement.152 These documents are then analyzed 

to extract demographic, conviction, sentencing, and 

guideline application information for each case.

Data Analysis

With the exception of the analysis of the 

BOP inmate population, the data reported in this 

publication is derived entirely from the Commission’s 

electronic database of information that is routinely 

collected through the above processes for all 

federal cases for which the Commission receives 

full documentation in accordance with 28 U.S.C. 

§ 994(w). In fiscal year 2016,153 the Commission’s 

individual datafile included 67,742 cases. Of 

those cases, the Commission received complete 

guideline application information and sufficient 

documentation for analysis in this publication in 

62,251 cases.154 

For each of these 62,251 cases, the Commission 

gathered and analyzed relevant offender and 

offense characteristics, including demographic 

data, the types of underlying offenses, and basic 

criminal history information. This publication 

provides general comparisons between offenders in 

the overall federal offender population, offenders 

convicted of an offense carrying a mandatory 

minimum penalty,155 offenders who obtained relief 

from application of a mandatory minimum penalty, 

and offenders who remained subject to a mandatory 

minimum penalty at the time of sentencing. The 

Commission also provides data about sentencing 

outcomes involving the application of mandatory 

minimum penalties. Where appropriate, this 

publication also highlights key changes between 

the data set forth in the Commission’s 2011 

Mandatory Minimum Report and the fiscal year 

2016 sentencing data. 

Lastly, this publication analyzes and provides 

updated trends regarding the impact of mandatory 

minimum sentencing provisions on the federal 

prison population. Specifically, the Commission 

provides an overall assessment of the prison impact 

of statutes carrying mandatory minimum penalties. 

For this analysis, the Commission obtained prisoner 

data from the BOP to compare to Commission data. 
 29

Section Five:

Data Analysis

By merging the two datasets, the Commission 

creates snapshots of the federal prison population 

at different points in time.

Prevalence of Offenses Carrying 

Mandatory Minimum Penalties

How Often Are Offenders Charged With An 

Offense Carrying a Mandatory Minimum 

Penalty?

Continuing a recent trend, the prevalence 

of offenders convicted of an offense carrying a 

mandatory minimum penalty decreased in fiscal 

year 2016, both in terms of number and as a 

percentage of all offenders sentenced in that year.

More than one-fifth of all offenders sentenced 

in fiscal year 2016 (21.9%) were convicted of an 

offense carrying a mandatory minimum penalty, a 

change of 5.3 percentage points from fiscal year 

2010 (27.2%). This also reflects a 31.6 percent 

change in the overall number of offenders convicted 

of an offense carrying a mandatory minimum 

penalty, decreasing from 19,896 offenders in fiscal 

year 2010 to 13,604 offenders in fiscal year 2016. 

Although this decrease is due in part to the reduction 

in the overall federal sentencing population in 

recent years, the fact that the number of offenders 

convicted of an offense carrying a mandatory 

minimum penalty declined at a greater rate than 

the decrease in overall population156 indicates that 

changes in charging practices are also responsible. 

The impact of changes in charging practices 

is further demonstrated by the recent decrease in 

the percentage of offenders convicted of an offense 

carrying a mandatory minimum penalty shown in 

Figure 2 on the following page. From fiscal years 

1991 to 2014, the percentage of offenders convicted 

of an offense carrying a mandatory minimum 

penalty remained relatively steady, fluctuating 

between 26.0 percent and 31.9 percent from fiscal 

year 1991 through fiscal year 2013. That trend has 

changed, however, over the past three years, with 

the overall percent of offenders convicted of an 

offense carrying a mandatory minimum penalty 

decreasing from 27.0 percent in fiscal year 2013 to 

22.4 percent in fiscal year 2015 and 21.9 percent in 

this most recent fiscal year. 

This trend is consistent with the stated goals of 

the Department of Justice’s 2010 memorandum and 

its 2013 Smart on Crime Initiative. As discussed 

above, in both 2010 and 2013, the Department of 

Justice instructed prosecutors to be more selective 

in charging offenses with a mandatory minimum 

penalty, specifically regarding certain nonviolent, 

low-level drug offenders. Thus, it is not surprising 

to see a reduction in the frequency with which 

offenders were charged with such offenses. 

Despite the steady decrease in offenders 

convicted of an offense carrying a mandatory 

minimum penalty, the overall percentage of federal 

offenders who remain subject to a mandatory 

minimum penalty remained relatively steady over 

the past seven fiscal years, falling only slightly 

from 14.5 percent in fiscal year 2010 to 13.4 percent 

in fiscal year 2016. This is because offenders 

Not Convicted of an Offense 

Carrying a Mandatory Minimum 

Penalty

78.1%

(N=48,647)

Convicted of an Offense 

Carrying a Mandatory 

Minimum Penalty

21.9%

(N=13,604)

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Figure 1. Offenders Convicted of an Offense 

Carrying a Mandatory Minimum Penalty 

Fiscal Year 2016
30 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

had been increasingly less likely to receive relief 

from a mandatory minimum through a substantial 

assistance motion or application of the statutory 

safety valve.157 In fiscal year 2016, almost twothirds (61.3%) of offenders convicted of an offense 

carrying a mandatory minimum penalty received 

no relief from that penalty and were still subject to 

a mandatory minimum penalty at sentencing. This 

compares to only 53.4 percent who did not receive 

relief in fiscal year 2010. 

This is consistent with the change in Department 

of Justice policy from 2013 through May of this year 

as part of its Smart on Crime Initiative. As reflected 

in the criteria provided in the 2013 Department of 

Justice memorandum, drug trafficking mandatory 

minimum penalties were reserved for more serious 

offenders, including those who used a weapon or 

whose conduct involved violence, those who were 

organizers or leaders within a criminal organization, 

or those with “significant criminal history,” all 

factors that disqualify an offender from eligibility 

for the safety valve. Therefore, it is equally 

unsurprising that those charged with a mandatory 

minimum penalty are now more likely to remain 

subject to the mandatory minimum penalty at 

sentencing. 

To further analyze this trend, the Commission 

attempted to isolate the factors identified by the 

Department of Justice in its 2013 memorandum 

to determine whether they were reflected in the 

frequency with which offenders were convicted of 

and ultimately subject to a mandatory minimum 

penalty at sentencing. The first factor identified 

by the Department was whether the defendant’s 

relevant conduct involved the use of violence, the 

credible threat of violence, the possession of a 

weapon, the trafficking of drugs to or with minors, 

or the death or serious bodily injury of any person.158

While Commission data may not completely 

align with the prosecutorial criteria, the first part 

of Figure 3 compares the frequency with which 

offenders convicted of a drug trafficking offense 

SOURCE: U.S. Sentencing Commission 1991 through 2016 Datafiles, USSCFY1991-USSCFY2016.

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Convicted of an Offense Carrying a Mandatory Minimum Penalty

Subject to a Mandatory Minimum Penalty at Sentencing

Figure 2. Offenders Convicted of an Offense Carrying a Mandatory Minimum Penalty and

Offenders Subject to a Mandatory Minimum Penalty at Sentencing

Fiscal Years 1991 - 2016
 31

Section Five:

Data Analysis

carrying a mandatory minimum penalty received 

a guideline enhancement for use of a weapon159 or 

for using violence or credible threats of violence,160

were subject to a base offense level based on the 

existence of death or serious bodily injury,161 or had 

a conviction for a mandatory minimum firearms 

offense under 18 U.S.C. § 924(c). 

Offenders who were convicted of an offense 

carrying a mandatory minimum penalty in fiscal 

year 2016 were more likely to have met one of 

the factors set forth in the Department’s 2013 

memorandum. In fiscal year 2016, 28.7 percent of 

offenders convicted of a drug trafficking offense 

carrying a mandatory minimum penalty involved 

the guideline factors noted above, as compared to 

20.7 percent in fiscal year 2010. Similarly, such 

offenders who remained subject to the mandatory 

minimum penalty at sentencing were also more 

likely to have met the above criteria, increasing 

from 29.7 percent in fiscal year 2010 to 41.0 percent 

in fiscal year 2016. 

Similar trends were also seen when 

considering other criteria in the Department’s 

2013 memorandum. First, offenders convicted of 

a drug trafficking offense carrying a mandatory 

minimum penalty were more likely to have 

received an adjustment for aggravating role,162 as 

were offenders ultimately subject to the mandatory 

minimum penalty at sentencing. Additionally, 

offenders convicted of a drug trafficking offense 

carrying a mandatory minimum penalty were more 

likely to have received three criminal history points 

or more, which is consistent with the Department’s 

criteria that the defendant did not have a significant 

criminal history as normally evidenced by three or 

more criminal history points.163 

20.7%

7.7%

45.8%

28.7%

11.7%

50.9%

29.7%

10.8%

68.0%

41.0%

15.7%

70.3%

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Offenses involving a weapon SOC,

violence, serious bodily injury, or

consecutive gun mandatory

Aggravating Role Three criminal history points or more

2010 - Convicted of a Drug Trafficking Offense Carrying a Mandatory Minimum Penalty

2016 - Convicted of a Drug Trafficking Offense Carrying a Mandatory Minimum Penalty

2010 - Subject to a Mandatory Minimum Penalty at Sentencing

2016 - Subject to a Mandatory Minimum Penalty at Sentencing

SOURCE: U.S. Sentencing Commission, 2010, and 2016 Datafiles, USSCFY10, and USSCFY16.

Figure 3. Comparison of Selected Sentencing Data Related to the Smart on Crime Initiative

Fiscal Years 2010 and 2016
32 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

2010 to 8.1 percent in fiscal year 2016. In contrast, 

the percentage of offenders convicted of an offense 

carrying a mandatory minimum of ten years of 

imprisonment decreased from 40.7 percent in fiscal 

year 2010 to 37.3 percent in fiscal year 2016.

Where Were Offenders Convicted of Offenses 

Carrying Mandatory Minimums?

There continues to be geographic differences 

in the rates at which mandatory minimum penalties 

apply, much of which is related to differences in 

caseloads around the country.164 More than half 

(54.7%, n=7,442) of the 13,604 cases involving 

mandatory minimum penalties were brought in the 

district courts in four circuits: 2,614 (19.2%) were in 

the Fifth Circuit, 1,935 (14.2%) were in the Eleventh 

Circuit, 1,459 (10.7%) were in the Ninth Circuit, 

and 1,434 (10.5%) were in the Eighth Circuit. This 

is similar to the overall portion (58.5%) of federal 

criminal cases in fiscal year 2016 that came from 

the district courts in those four circuits.

< 5 Years

5.1%

(N=1,014)

5 Years

39.9%

(N=7,929)

>5 to <10 Years

2.4%

(N=482)

10 Years

40.7%

(N=8,102)

10 to <20 Years

6.0%

(N=1,196)

20 Years

3.6%

(N=724)

>20 Years

2.3%

(N=449)

< 5 Years

8.1%

(N=1,105)

5 Years

40.0%

(N=5,444)

>5 to <10 Years

3.2%

(N=433)

10 Years

37.3%

(N=5,078)

10 to <20 Years

6.8%

(N=926)

20 Years

2.2%

(N=304)

>20 Years

2.3%

(N=314)

Figure 4. Length of Mandatory Minimum Penalty for Offenders Convicted of an Offense Carrying a 

Mandatory Minimum Penalty

Fiscal Years 2010 and 2016

2010 2016

How Severe Were the Penalties for Mandatory 

Minimum Offenses for Which Offenders Are 

Convicted?

As discussed in Section Three, mandatory 

minimum penalties currently apply to several 

different types of federal offenses, and are of 

varying lengths depending on the offense type and 

specified criteria. 

Consistent with fiscal year 2010 data, most 

offenders (88.7%) convicted of an offense carrying 

a mandatory minimum penalty in fiscal year 2016 

faced mandatory minimum penalties of ten years 

or less. At 40.0 percent, such offenders were 

most frequently convicted for violating a statute 

carrying a mandatory minimum penalty of five 

years of imprisonment, which is virtually the same 

as in fiscal year 2010. There was a slight increase, 

however, in the percentage of offenders convicted of 

an offense carrying a mandatory minimum penalty 

less than five years, from 5.1 percent in fiscal year 

SOURCE: U.S. Sentencing Commission, 2010, and 2016 Datafiles, USSCFY10, and USSCFY16.
 33

Section Five:

Data Analysis

In fiscal year 2016, there was one district 

(Southern District of Texas, n=1,003) in which 

more than 750 offenders were convicted of an 

offense carrying a mandatory minimum penalty.165

That one district accounted for 7.4 percent of the 

13,604 cases involving a conviction of an offense 

carrying a mandatory minimum penalty in fiscal 

year 2016. An additional four districts reported 

at least 500 cases involving a conviction of an 

offense carrying a mandatory minimum penalty: 

Southern Florida (5.4%, n=733), Western Texas 

(5.0%, n=676), Middle Florida (4.7%, n=636), and 

Puerto Rico (3.9%, n=527). Collectively, these 

five districts accounted for 26.3 percent of cases 

involving a conviction of an offense carrying a 

mandatory minimum penalty, and 26.7 percent 

of the federal caseload in fiscal year 2016. The 

majority of the 94 districts (83 or 88.3%) reported 

fewer than 250 cases involving convictions under 

a statute carrying a mandatory minimum penalty, 

with the most common grouping being “100 to 249 

offenders” (35 districts). Eighteen districts had less 

than 50 offenders convicted of such a penalty.

Cases involving a conviction for an offense 

carrying a mandatory minimum penalty accounted 

for varying percentages of the districts’ criminal 

case docket. Overall, however, offenders convicted 

of an offense carrying a mandatory minimum 

penalty accounted for a smaller portion of district 

court dockets than they did in fiscal year 2010. 

While there were ten districts in which more than 

50 percent of the caseload involved offenders 

convicted of an offense carrying a mandatory 

minimum penalty in fiscal year 2010,166 there was 

only one such district in fiscal year 2016 (Puerto 

Rico – 51.6%).167 In the largest proportion of 

districts (31 districts), such offenses comprised 

between 20 and 29 percent of the district’s overall 

docket in fiscal year 2016. By comparison, in the 

largest number of districts in fiscal year 2010 (32 

districts), such offenses comprised between 30 

and 39 percent of the district’s docket. Finally, the 

number of districts that had less than 10 percent 

of offenders convicted of such a penalty increased 

from one district in fiscal year 2010 to five districts 

in fiscal year 2016.

Figure 5. Number of Offenders Convicted of an 

Offense Carrying a Mandatory Minimum Penalty 

by District

Fiscal Year 2016

Figure 6. Percentage of Offenders Convicted of an 

Offense Carrying a Mandatory Minimum Penalty 

by District

Fiscal Year 2016

Percentage of Offenders: <10% 10-19% 20-29% 30-39% 40-49% >50%

Number of Offenders: <50 50-99 100-249 250-499 500-750 >750

SOURCE: U.S. Sentencing Commission, 2010, and 2016 Datafiles, USSCFY10, and USSCFY16.
34 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

Much of the variation in rates of application can 

be attributed to differences in the composition of 

the caseloads in those districts. For example, in the 

five districts applying mandatory minimums at the 

highest rates,168 drug and firearms offenses made 

up a significant portion of these districts’ caseload 

(41.6% of the cases involved drugs and 14.4% 

involved firearms). In the five districts reporting 

the lowest application rates,169 nearly two-thirds of 

the cases in those courts were immigration offenses 

(63.8%) and less than one-third were drug or 

firearms offenses (25.4% and 1.8%, respectively). 

Primary Offense Types for Offenders 

Convicted of Offenses Carrying a 

Mandatory Minimum Penalty

Drug offenses170 accounted for slightly more 

than two-thirds of the offenses (67.3%) carrying a 

mandatory minimum penalty in fiscal year 2016, 

significantly higher than the next closest category 

of offenses. 

However, when analyzed over time, the 

percentage of offenders convicted of a drug 

offense carrying a mandatory minimum penalty 

has decreased significantly from 91.1 percent of 

all offenders convicted of such an offense in fiscal 

year 1990. Conversely, the percentage of cases 

involving all other types of offenses carrying a 

mandatory minimum penalty—violent, firearms, 

sexual abuse, pornography and “other” offenses—

has steadily increased. 

Those drug offenders convicted of an offense 

carrying a mandatory minimum penalty increased 

from 5,752 offenders in 1990 to 15,831 offenders 

in 2010 (a 175.2% increase), before decreasing 

to 9,154 in 2016 (a 42.2% decrease). Firearms 

offenses increased significantly from 1990 to 2010 

(735.7% increase), but decreased from 2010 to 2016 

(67.1% decrease). Sexual abuse increased from 

1.7 percent of all offenses carrying a mandatory SOURCE: U.S. Sentencing Commission, 1990, 2010, and 

2016 Datafiles, MONFY1990, USSCFY10, and USSCFY16.

Figure 7. Primary Offense of Conviction 

for Offenders Convicted of an Offense 

Carrying a Mandatory Minimum Penalty

Fiscal Years 1990, 2010, and 2016

20163

(N = 13,604)

Drugs

67.3%

Sexual Abuse

5.2% Pornography

6.9%

Firearms

5.7%

Other

15.0%

2016

Drugs

80.0%

Sexual Abuse

1.7%

Pornography

4.2%

Firearms

5.1%

Other

9.0%

20103

(N = 19,896)

2010

Violent 

3.6% 

Drugs

91.1% 

Firearms

4.5% Other

0.8%

19902

(N = 6,313)

1990
 35

Section Five:

Data Analysis

minimum penalty in fiscal year 2010 to 5.2 percent 

in 2016. Pornography followed the same trend, 

increasing from 4.2 percent in 2010 to 6.9 percent 

in 2016. Finally, “other” offenses increased from 

49 offenders in 1990 to 1,779 offenders in 2010, 

and increased further to 2,037 offenders (14.5% 

increase) in 2016. 

Drug and firearms offenses continue to 

top the list of most frequently used mandatory 

minimum penalty statutes. As in fiscal year 2010, 

the most frequently reported conviction of an 

offense carrying a mandatory minimum penalty 

in fiscal year 2016 was 21 U.S.C. § 846 (Attempt 

and Conspiracy [to Commit a Drug Trafficking 

Offense]).171 As reflected in Table 1, violations of 

section 846 accounted for almost a quarter (24.9%) 

of the convictions of statutes carrying a mandatory 

minimum penalty. The primary drug trafficking 

penalty provisions of 21 U.S.C. § 841—sections 

841(b)(1)(A) and (B)—remain in the top five 

most frequent statutes of conviction carrying a 

mandatory minimum penalty. Finally, the top five 

statutes in fiscal year 2016 includes two subsections 

of section 924(c)—section 924(c)(1)(A)(i), which 

prohibits possession of a firearm during and in 

relation to a crime of violence or drug trafficking 

crime (five-year mandatory minimum), and section 

924(c)(1)(A)(ii), which prohibits brandishing a 

firearm during and in relation to a crime of violence 

or drug trafficking crime (seven-year mandatory 

minimum).172

While drug offenses continue to be the most 

common mandatory minimum offenses, an 

evolving picture emerges when analyzing the 

percentage of offenders convicted of an offense 

carrying a mandatory minimum penalty within 

each of the primary offense types. Figure 8 shows 

that the percentage of drug trafficking offenders 

convicted of an offense carrying a mandatory 

minimum penalty remained relatively steady from 

1991 through 2013, fluctuating between 60 and 70 

percent. In the wake of the Department of Justice’s 

Smart on Crime Initiative in 2013, however, there 

was a noticeable decrease in the percentage of drug 

trafficking offenders convicted of offenses carrying 

a mandatory minimum penalty, decreasing to 52.2 

percent in fiscal year 2014, 47.9 percent in fiscal 

year 2015, and reaching its lowest rate of 46.8 

percent in 2016. 

Conversely, sexual abuse and pornography 

offenses have seen an increase in the percentage 

of offenders convicted of an offense carrying 

a mandatory minimum penalty. In fiscal year 

2010, 52.6 percent of sexual abuse offenders were 

convicted under such a statute. That rate has 

increased to 62.6 percent in 2016. While decreasing 

slightly since its high in fiscal year 2014 (61.2%), 

the rate of child pornography offenders convicted 

of such an offense has increased nearly sixty-fold 

since the Commission’s first report on mandatory 

minimums in 1991, and is also notably higher since 

the Commission’s last report (50.2% in fiscal year 

2010). This increase is, of course, due in large part 

to the expansion of mandatory minimum penalties 

for child pornography offenders in the PROTECT 

Act in 2003. 

STATUTE

Total Number of 

Counts of

Convictions

Percentage of 

Counts of 

Conviction

21 U.S.C. § 846 5,982 24.9%

21 U.S.C. § 841(b)(1)(B) 2,478 10.3%

21 U.S.C. § 841(b)(1)(A) 2,224 9.3%

18 U.S.C. § 924(c)(1)(A)(i) 1,974 8.2%

18 U.S.C. § 924(c)(1)(A)(ii) 1,019 4.2%

Table 1. Number of Convictions for Most Frequently Used 

Statutes Carrying a Mandatory Minimum Penalty

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.
36 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

The number of firearms offenders convicted of 

an offense carrying a mandatory minimum penalty 

has also increased since 1991 (17.5%), reaching 

a high of 35.4 percent in fiscal year 2011 before 

decreasing to 30.8 percent in fiscal year 2016. 

Offender Demographics & 

Criminal History

Offender Demographics173

In fiscal year 2016, Hispanic offenders 

continued to represent the largest group of 

offenders (40.4%) convicted of an offense carrying 

a mandatory minimum penalty, as they did in 

fiscal year 2010 (38.3%). Black offenders at 29.7 

percent, White offenders at 27.2 percent, and Other 

Race offenders (2.7%) accounted for the remaining 

offenders convicted of an offense carrying a 

mandatory minimum penalty. 

Although Hispanic offenders constituted the 

largest proportion of offenders convicted of an 

offense carrying a mandatory minimum penalty, 

they were under-represented when considering 

their portion of the total federal offender population 

(52.4%). Conversely, both Black and White 

offenders were represented disproportionately in 

the population of offenders convicted of an offense 

carrying a mandatory minimum penalty compared 

to their proportion of the offender population. 

Hispanic offenders were also the largest group 

to be relieved of the application of a mandatory 

minimum penalty (55.5%).174 This is mainly due 

to the large number of Hispanic offenders who 

received relief through the safety valve. White, 

Black, and Other Race offenders in 2016 were 

significantly behind at 21.1 percent, 20.6 percent, 

and 2.8 percent, respectively. 

0.0%

20.0%

40.0%

60.0%

80.0%

100.0% Drug Trafficking Sexual Abuse Pornography Firearms

SOURCE: U.S. Sentencing Commission, 1991 through 2016 Datafiles, USSCFY91 – USSCFY16.

Figure 8. Offenders in Select Offense Types Convicted of an Offense Carrying a 

Mandatory Minimum Penalty

Fiscal Years 1991 - 2016
 37

Section Five:

Data Analysis

Hispanic offenders were again disproportionately 

represented as compared to the percentage of 

offenders who were convicted of an offense carrying 

a mandatory minimum penalty (55.5% compared 

to 40.4%), while both Black and White offenders 

were under-represented in terms of receiving relief. 

Of the 8,342 offenders who were subject to 

a mandatory minimum penalty at sentencing,175

Black offenders were the largest group (35.5%) 

closely followed by White offenders (31.1%) and 

Hispanic offenders (30.9%). Again, however, both 

Black and White offenders were more heavily 

represented in the population of offenders who 

remained subject to a mandatory minimum penalty 

at sentencing compared to both their proportion of 

the overall offender population and their proportion 

of offenders convicted of an offense carrying a 

mandatory minimum penalty. 

Over three-fourths of offenders convicted of 

a statute carrying a mandatory minimum penalty 

were U.S. citizens (77.9%), which is slightly higher 

than in fiscal year 2010 (73.6%).176 U.S. citizens 

were significantly over-represented as compared to 

their proportion of the overall offender population 

(77.9% compared to 59.6%) Similarly, most 

offenders who remained subject to a mandatory 

minimum penalty were U.S. citizens (86.5%).

Males were most common across all three 

groups—offenders convicted of an offense carrying 

a mandatory minimum, relieved of a mandatory 

minimum, and subject to a mandatory minimum 

penalty at sentencing. Males were over-represented 

in the population of offenders who were convicted 

of and remained subject to a mandatory minimum 

penalty at sentencing compared to their proportion 

of the offender population. Conversely, female 

offenders were over-represented among those 

receiving relief from a mandatory minimum 

penalty.

All Offenders

Convicted of an

Offense Carrying a 

Mandatory Minimum Penalty

Relieved of 

Mandatory Minimum 

Penalty

Subject to

Mandatory Minimum 

Penalty at Sentencing

Total (# of offenders) 62,251 13,604 5,262 8,342

RACE

White 22.7% 27.2% 21.1% 31.1%

Black 20.9% 29.7% 20.6% 35.5%

Hispanic 52.4% 40.4% 55.5% 30.9%

Other 4.0% 2.7% 2.8% 2.5%

CITIZENSHIP

U.S. Citizen 59.6% 77.9% 64.2% 86.5%

Non-U.S. Citizen 40.4% 22.1% 35.8% 13.5%

GENDER

Male 86.4% 90.0% 85.3% 93.0%

Female 13.6% 10.0% 14.7% 7.0%

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Table 2. Demographic Characteristics of Offenders

Fiscal Year 2016
38 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

Criminal History

The criminal history of the offenders convicted 

of an offense carrying a mandatory minimum 

penalty largely mirrors that of the overall offender 

population. 

A distinct change occurs, however, when 

looking at offenders who are relieved of the 

application of a mandatory minimum penalty and 

offenders who eventually are subject to a mandatory 

minimum penalty at sentencing. Offenders in 

Criminal History Category I were more likely to be 

relieved of the mandatory minimum penalty than 

offenders in higher criminal history categories, and 

offenders in higher criminal history categories were 

less likely to be relieved. This is to be expected 

since only drug offenders who fall within Criminal 

History Category I are eligible for relief through the 

statutory safety valve discussed above. 

In all groups, more offenders were assigned 

to Criminal History Category I than any other 

criminal history category. Almost half of offenders 

convicted of an offense carrying a mandatory 

minimum penalty (45.7%) were in Criminal History 

Category I. As to be expected, most offenders 

(63.1%) who were relieved of the mandatory 

minimum penalty had a Criminal History Category 

I, while only 34.6 percent of offenders who were 

subject to a mandatory minimum at sentencing 

fell into the Criminal History Category I. By 

contrast, offenders in Criminal History Category VI 

represented 14.1 percent of offenders convicted of 

an offense carrying a mandatory minimum penalty, 

but represented 17.2 percent of offenders who 

were subject to a mandatory minimum penalty at 

sentencing. 

All Offenders

Convicted of 

an Offense Carrying a 

Mandatory Minimum Penalty

Relieved of 

Mandatory Minimum 

Penalty

Subject to 

Mandatory Minimum 

Penalty at Sentencing

Total (# of offenders) N=62,251 N=13,604 N=5,262 N=8,342

CRIMINAL HISTORY CATEGORY

Category I 45.2% 45.7% 63.1% 34.6%

Category II 13.8% 11.7% 8.6% 13.7%

Category III 16.4% 14.7% 10.3% 17.5%

Category IV 9.6% 8.6% 5.5% 10.6%

Category V 5.5% 5.1% 3.2% 6.4%

Category VI 9.5% 14.1% 9.3% 17.2%

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Table 3. Criminal History of Offenders

Fiscal Year 2016
 39

Section Five:

Data Analysis

Relief from Mandatory Minimum Penalties

Despite a steady decrease in the percentage 

of offenders who were convicted of an offense 

carrying a mandatory minimum penalty,177 the 

overall percentage of federal offenders who remain 

subject to a mandatory minimum remained largely 

steady over the past seven fiscal years.178 This is 

because the rate at which offenders convicted of 

an offense carrying a mandatory minimum penalty 

received relief at sentencing has also decreased in 

recent years. 

As demonstrated in Figure 9, 38.7 percent of 

the offenders convicted of an offense carrying a 

mandatory minimum penalty were relieved from 

its application at sentencing due to substantial 

assistance, safety valve, or both, while almost twothirds (61.3%) remained subject to the mandatory 

minimum penalty at sentencing. This compares to 

46.7 percent who received relief in fiscal year 2010.

This decrease is primarily the result of a 

reduction in the percentage of offenders qualifying 

for the statutory safety valve. Of offenders 

convicted of an offense carrying a mandatory 

minimum penalty, 19.8 percent received relief 

under the safety valve in fiscal year 2016 (14.3% 

for safety valve only, and 5.5% for both safety valve 

and substantial assistance). This compares to 28.2 

percent in fiscal year 2010 (20.9% for safety valve 

only, and 7.3% for both safety valve and substantial 

assistance).179 

The Commission also identified and analyzed 

differences in the rates of relief from mandatory 

minimum penalties in several other areas.

Relieved of 

Mandatory 

Minimum 

Penalty

38.7%

(N=5,262)

No Relief

61.3%

(N=8,342)

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Substantial Assistance

18.8%

Safety Valve

14.3%

Substantial Assistance 

& Safety Valve

5.5%

No Relief

61.3%

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Figure 9. Offenders Relieved of a Mandatory Minimum Penalty

Fiscal Year 2016

Figure 10. Offenders Relieved of a Mandatory Minimum Penalty

by Relief Type

Fiscal Year 2016
40 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

Offense Type

First, relief varies by offense type. In fiscal 

year 2016, 50.0 percent of drug offenders, 15.8 

percent of sex offenders, and 9.0 percent of identity 

theft offenders convicted of an offense carrying a 

mandatory minimum penalty received relief from 

such penalty. Among firearm offenders, 11.0 

percent of offenders convicted of an offense under 

18 U.S.C. § 924(c) and 19.1 percent of offenders 

who were sentenced under the Armed Career 

Criminal Act, 18 U.S.C. § 924(e), received relief 

from the mandatory minimum penalty.

Demographics

Demographic differences also appeared in 

the rates of relief for offenders convicted of an 

offense carrying a mandatory minimum penalty. 

Black offenders continued to receive relief least 

often. Of Black offenders convicted of an offense 

carrying a mandatory minimum penalty, 73.2 

percent remained subject to that penalty. White 

offenders had the second highest rate (70.0% of 

White offenders convicted of an offense carrying 

a mandatory minimum penalty remained subject 

to that penalty at sentencing). Hispanic offenders 

received relief at the highest rate (53.1%), and so 

were subject to such penalties at the lowest rate 

(46.9%). This is due, in large part, to the fact that 

Hispanic offenders qualified for the safety valve at 

double the rate of the next closest group (37.1% 

compared to 18.1% for Other Race offenders), 

and at nearly six times the rate of Black offenders 

(37.1% compared to 6.6%). 

Much of this difference can be attributable to the 

fact that Black offenders who commit drug offenses 

often do not qualify for the safety valve because 

of their criminal history. In fiscal year 2016, 77.2 

percent of Black drug offenders convicted of an 

offense carrying a mandatory minimum penalty 

were in Criminal History Categories II – VI, which 

would disqualify them from consideration for the 

safety valve. By contrast, 72.8 percent of White drug 

offenders, 36.0 percent of Hispanic drug offenders, 

and 56.9 percent of Other Race drug offenders were 

in Criminal History Categories II–VI. Drug offenses 

committed by Black offenders involve a dangerous 

weapon in connection with the offense to a greater 

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

61.3%

70.0% 73.2%

46.9%

58.9%

18.8% 21.0% 20.2%

16.0%

23.1%

14.3%

4.9% 4.8%

27.9%

11.7%

5.5% 4.1% 1.8%

9.2% 6.4%

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

All Offenders White Black Hispanic Other

No Relief Substantial Assistance Safety Valve Substantial Assistance & Safety Valve

Figure 11. Demographics of Offenders Relieved of a Mandatory Minimum Penalty by Race

Fiscal Year 2016
 41

Section Five:

Data Analysis

extent. In fiscal year 2016, 13.8 percent of Black 

drug offenders convicted of an offense carrying a 

mandatory minimum penalty were convicted of 

a firearm offense under 18 U.S.C. § 924(c). This 

compares to 8.9 percent of White drug offenders, 

7.3 percent of Hispanic drug offenders, and 7.3 

percent of Other Race drug offenders. In addition, 

22.6 percent of Black drug offenders convicted of 

an offense carrying a mandatory minimum penalty 

received an enhancement under USSG §2D1.1(b)

(1) for weapon involvement. This compares to 22.1

percent of White drug offenders, 11.6 percent of

Hispanic drug offenders, and 18.1 percent of Other

Race drug offenders.

As demonstrated in Figure 12, the rate of 

offenders receiving relief from a mandatory 

minimum penalty decreased across all demographics 

since fiscal year 2010. This is again consistent 

with the stated goals of the Department of Justice’s 

Smart on Crime Initiative to target more serious 

offenders for conviction under an offense carrying 

a mandatory minimum penalty. Commission data 

demonstrates, however, that the decreased likelihood 

of relief has not been uniform. In fiscal year 2016, 

70.0 percent of White offenders remained subject 

to a mandatory minimum penalty at sentencing, 

an increase of 16.5 percentage points since fiscal 

year 2010. The percent of Black offenders who 

remained subject to a mandatory minimum penalty 

also increased, but only by 8.1 percent (from 65.1% 

in fiscal year 2010 to 73.2% in fiscal year 2016). 

As a result, the gap between White offenders and 

Black offenders has significantly decreased since 

the Commission’s 2011 Mandatory Minimum 

Report, from a difference of 11.6 percent (65.1% 

of Black offenders convicted of an offense carrying 

a mandatory minimum penalty remained subject to 

that penalty at sentencing compared to 53.5% of 

White offenders in fiscal year 2010) to a difference 

of just 3.2 percent in fiscal year 2016. These changes 

are most likely the result of differences in the types 

of offenses charged. For example, the number of 

crack cocaine trafficking offenders, who tend to 

be predominantly Black,180 significantly decreased 

by 67.1 percent in recent years.181 Conversely, the 

number of methamphetamine trafficking offenders, 

who tend to be Hispanic or White,182 increased 56.1 

percent.183

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

53.5%

65.1%

44.3% 41.1%

70.0% 73.2%

46.9%

58.9%

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

White Black Hispanic Other

2010 - No Relief 2016 - No Relief

Figure 12. Demographics of Offenders Who Remained Subject to a Mandatory Minimum Penalty at Sentencing 

by Race

Fiscal Years 2010 and 2016
42 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

As was the case in fiscal year 2010, non-U.S. 

citizens received relief (62.6%) at a significantly 

higher rate than U.S. citizens (31.9%). This is 

due, in large part, to the fact that non-U.S. citizens 

qualified for relief from the mandatory minimum 

penalty under the safety valve (48.3%) more often 

than U.S. citizen offenders (11.8%) because of their 

lower criminal history scores. Non-U.S. citizen 

offenders tend to have lower criminal history scores 

because criminal history calculations under Chapter 

4 of the Guidelines Manual exclude sentences 

resulting from foreign convictions.184

Female offenders continued to receive relief 

at a higher rate than male offenders. In fiscal year 

2016, more than half of female offenders (56.9%) 

obtained relief from the mandatory minimum 

penalty at sentencing compared to 36.7 percent of 

male offenders. As shown in Figure 13, female 

offenders qualified for each type of relief at a higher 

rate than male offenders. 

Substantial Assistance

Lastly, the Commission analyzed the extent to 

which mandatory minimum penalties encourage 

cooperation with law enforcement. As discussed 

above, offenders convicted of an offense carrying 

a mandatory minimum penalty are provided 

an incentive to plead guilty and cooperate with 

law enforcement officials. Namely, when the 

government files a motion indicating that the 

defendant has substantially cooperated, 18 U.S.C. 

§ 3553(e) grants the court limited authority to

impose a sentence below a mandatory minimum

penalty. Because the Commission has also

incorporated this incentive into the guidelines at

USSG §5K1.1, non-mandatory minimum offenders

are also eligible to receive a departure from the

applicable guideline range by providing substantial

assistance to the government.185

While both the statutory substantial assistance 

provision at 18 U.S.C. § 3553(e) and the related 

guideline provision at USSG §5K1.1 serve as a 

significant incentive to offenders, Commission 

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

68.1%

37.4%

63.3%

43.1%

20.1%

14.3%

18.1%

25.5%

7.8%

37.1%

13.6%

20.6%

4.0%

11.2%

5.0%

10.8%

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

U.S. Citizen Non-U.S. Citizen Male Female

No Relief Substantial Assistance Safety Valve Substantial Assistance & Safety Valve

Figure 13. Demographics of Offenders Relieved of a Mandatory Minimum Penalty 

by Citizenship Status and Gender

Fiscal Year 2016
 43

Section Five:

Data Analysis

data indicates that the longer sentences required 

by an offense carrying a mandatory minimum 

penalty provide a significantly greater incentive. In 

fiscal year 2016, offenders convicted of an offense 

carrying a mandatory minimum penalty were over 

three times more likely to have provided substantial 

assistance to the government. As reflected in Figure 

11 above, nearly one-quarter of offenders (24.3%) 

convicted of an offense carrying a mandatory 

minimum received a substantial assistance motion. 

This compares to only 8.1 percent of offenders 

not convicted of an offense carrying a mandatory 

minimum penalty. 

Sentencing of Offenders Convicted of an 

Offense Carrying a Mandatory Minimum 

Penalty

Average Sentence Length

The Commission compared the average length 

of sentence imposed for all offenders, offenders 

convicted of an offense carrying a mandatory 

minimum penalty, offenders relieved from 

application of a mandatory minimum penalty, and 

offenders who remained subject to the mandatory 

minimum penalty at sentencing. In fiscal year 2016, 

the average sentence length186 for offenders who 

were convicted of an offense carrying a mandatory 

minimum penalty was 110 months of imprisonment, 

nearly four times the average sentence for offenders 

not convicted of an offense carrying a mandatory 

minimum penalty. By comparison, the average 

sentence length of all offenders sentenced in fiscal 

year 2016 was 46 months of imprisonment.

8.1%

24.3%

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Not Convicted of an Offense

Carrying a Mandatory

Minimum Penalty

Convicted of an Offense

Carrying a Mandatory

Minimum Penalty

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Figure 14. Percentage of Offenders Receiving 

Substantial Assistance

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

28 mos.

110 mos.

138 mos.

67 mos.

83 mos.

57 mos.

41 mos.

0

60

120

180

Not

Convicted

of

Mandatory

Minimum

Convicted

of

Mandatory

Minimum

Subject to

Mandatory

Minimum

Relieved of

Mandatory

Minimum

Substanial

Assistance

Safety Valve Substantial

Assistance &

Safety Valve

months

Figure 15. Average Sentence Length

Fiscal Year 2016
44 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

The average sentence length for offenders who 

remained subject to a mandatory minimum penalty 

at sentencing was more than twice as high at 138 

months than offenders who ultimately received 

relief from such penalty at sentencing (67 months). 

For those relieved of the mandatory minimum 

penalty, the average sentence imposed also 

varied depending on the type of statutory relief. 

Offenders who provided substantial assistance to 

the government received longer average sentences, 

at 83 months, than offenders who qualified for the 

safety valve provision (average sentence of 57 

months). Offenders who qualified for both received 

the lowest average sentence of 41 months.

These differences may be attributable to the fact 

that offenders who qualify for safety valve relief were 

generally less culpable than other offenders and, 

therefore, would normally receive lower sentences 

on average.187 First, by statute, offenders must 

fall within Criminal History Category I to qualify 

for safety valve relief. Additionally, offenders 

must not have possessed a dangerous weapon in 

connection with the offense and must not have 

received an aggravating role adjustment under the 

guidelines (for being an organizer, leader, manager, 

or supervisor in any criminal activity).188 Of the 

offenders who provided substantial assistance to 

the government, 3.4 percent were also convicted of 

a firearms crime, 16.6 percent received a sentence 

enhancement for possessing a weapon, and 13.1 

percent received an aggravating role adjustment.

To some extent, the average sentences noted 

above were also attributable to the length of the 

applicable mandatory minimum penalty. As 

discussed earlier in this section,189 of the 13,604 

offenders convicted of an offense carrying a 

mandatory minimum penalty in fiscal year 2016, 

51.8 percent were convicted of an offense carrying 

a mandatory minimum penalty of more than five 

years, with 48.6 percent facing a mandatory 

minimum of ten years or more. Exactly 40.0 

percent were offenders convicted of an offense 

carrying a mandatory minimum penalty of five 

years of imprisonment. The remaining offenders 

(8.1%) were convicted of an offense that carried a 

mandatory minimum penalty of another length less 

than five years of imprisonment. 

58 mos.

127 mos.

150 mos.

73 mos. 66 mos.

119 mos.

136 mos.

71 mos.

33 mos.

93 mos.

126 mos.

64 mos.

44 mos.

111 mos.

149 mos.

55 mos.

0

60

120

180

All Offenders Convicted of Mandatory

Minimum

Subject to Mandatory

Minimum

Relieved of Mandatory

Minimum

White Black Hispanic Other

months

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Figure 16. Average Sentence Length by Race

Fiscal Year 2016
 45

Section Five:

Data Analysis

The Commission also compared the average 

length of sentences imposed for offenders by race. 

As reflected in Figure 16, when considering all 

offenders, Black offenders were sentenced to longer 

terms than any other racial group (66 months) in 

fiscal year 2016. White offenders (58 months) had 

the second highest average sentence, followed by 

Other Race offenders (44 months) and Hispanic 

offenders (33 months).

However, among offenders convicted of an 

offense carrying a mandatory minimum penalty, 

White offenders had the highest average sentence 

(127 months), followed by Black offenders (119 

months), Other Race offenders (111 months), and 

Hispanic offenders (93 months). White offenders 

also received the longest sentences among offenders 

who were relieved of the application of a mandatory 

minimum penalty at sentencing (73 months), and 

those offenders who were subject to a mandatory 

minimum penalty at sentencing (150 months). 

There were several notable changes after fiscal 

year 2010 in terms of average sentence, particularly 

as to White and Black Offenders. While Black 

offenders continued to receive the highest average 

sentence overall (66 months), this represents a 13.2 

percent decrease in sentence for Black offenders in 

fiscal year 2010 (76 months). Conversely, White 

offenders saw an increase in sentences between 

2010 and 2016, going from 49 months in fiscal 

year 2010 to 58 months in fiscal year 2016, an 18.4 

percent increase.

Changes are also seen for offenders convicted 

of, relieved of, or ultimately subject to a mandatory 

minimum penalty. Most notably, Black offenders 

no longer have the highest average sentence in 

any of those categories. In each instance, White 

offenders received the longest average sentences in 

fiscal year 2016. 

This is a significant change from fiscal year 

2010, in which Black offenders convicted of a 

statute carrying a mandatory minimum penalty had 

the highest average sentence (127 months), followed 

by White offenders with 102 months. This change 

is a result of the fact that White offenders convicted 

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

49 mos.

102 mos.

141 mos.

58 mos. 57 mos.

127 mos.

150 mos.

76 mos. 73 mos.

127 mos.

152 mos.

81 mos.

66 mos.

119 mos.

136 mos.

71 mos.

0

60

120

180

All Offenders Convicted of Mandatory

Minimum

Subject to Mandatory

Minimum

Relieved of Mandatory

Minimum

2010 White 2016 White 2010 Black 2016 Black

months

Figure 17. Comparison of Average Sentence of White and Black Offenders

Fiscal Years 2010 and 2016
46 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

of a statute carrying a mandatory minimum penalty 

had a 24.5 percent increase in their average sentence 

between fiscal years 2010 and 2016. 

For offenders who were convicted of a statute 

carrying a mandatory minimum penalty but 

were relieved of the application of the penalty 

at sentencing, White offenders saw a 16-month 

increase (28.1%) in their average sentence from 

fiscal year 2010 (from 57 months to 73 months). 

Black offenders, on the other hand, saw a 12.3 

percent decrease from fiscal year 2010 (from 81 

months to 71 months). 

White offenders who remained subject to a 

mandatory minimum penalty at sentencing had an 

average sentence of 150 months in fiscal year 2016, 

which is 6.4 percent higher than the average in 

fiscal year 2010 (141 months). Black offenders had 

an average sentence of 136 months—a 16-month 

decrease from the same Black offenders in fiscal 

year 2010 (from 152 months to 136 months). 

Finally, the Commission also compared the 

average length of sentences imposed for offenders 

by citizenship and gender. As was the case in fiscal 

year 2010, U.S. citizens have longer sentences 

All Offenders

Convicted of an

Offense Carrying a 

Mandatory Minimum Penalty

Relieved of 

Mandatory Minimum

Penalty

Subject to a 

Mandatory Minimum 

Penalty at Sentencing

Total (# of offenders) N=62,251 N=13,604 N=5,262 N=8,342

CITIZENSHIP

U.S. Citizen 59 months 117 months 68 months 140 months

Non-U.S. Citizen 26 months 87 months 66 months 124 months

GENDER

Male 49 months 115 months 70 months 141 months

Female 26 months 69 months 50 months 95 months

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Table 4. Average Sentence by Citizenship and Gender

Fiscal Year 2016

All Offenders

Convicted of an 

Offense Carrying a 

Mandatory Minimum Penalty

Subject to a 

Mandatory Minimum

Penalty at Sentencing

Total (# of offenders) N=62,251 N=13,604 N=8,342

SENTENCE RELATIVE TO THE GUIDELINE RANGE

Within Range 46.6% 41.4% 54.7%

Above Range 2.3% 2.0% 3.2%

Substantial Assistance §5K1.1 11.7% 24.4% 0.0%

Other Government Sponsored 

(no §5K1.1)

17.5% 10.4% 14.9%

Non-Government Sponsored 

Below Range

21.8% 21.8% 27.4%

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Table 5. Position of Sentence Relative to the Guideline Range

Fiscal Year 2016
 47

Section Five:

Data Analysis

than non-U.S. citizens in all four instances 

(all offenders, offenders convicted of a statute 

carrying a mandatory minimum penalty, offenders 

relieved of a mandatory minimum penalty, and 

offenders subject to a mandatory minimum 

penalty at sentencing). Male offenders also have 

longer sentences than female offenders in all four 

categories. The average sentences for each group 

are provided in Table 4 above. 

Sentences Relative to the Guideline Range

The rate at which the sentence imposed 

compares to the applicable guideline range varies 

by whether the offender was convicted of an 

offense carrying a mandatory minimum penalty, 

relieved from application of a mandatory minimum 

penalty because of substantial assistance and/or the 

safety valve, or remained subject to the mandatory 

minimum penalty at sentencing.190 

As shown in Table 5, offenders who were 

subject to a mandatory minimum penalty at 

sentencing were most likely to receive a sentence 

within the guideline range (54.7%).191 Offenders 

who remained subject to a mandatory minimum 

penalty at sentencing were also most likely to 

receive a non-government sponsored below range 

sentence. More than one-quarter (27.4%) of such 

offenders received a non-government sponsored 

departure or variance, a higher rate than all 

offenders generally (21.8%) and the larger subset 

of offenders convicted of an offense carrying a 

mandatory minimum penalty (21.8%).

This high rate of non-government sponsored 

below range sentences is, in part, because courts often 

sentence such offenders to the statutory mandatory 

minimum term of imprisonment regardless of the 

applicable guideline range. As reflected in Figure 

18, 75.1 percent of offenders subject to a mandatory 

minimum penalty at sentencing had a guideline 

minimum that was above the applicable mandatory 

minimum. In these cases, while courts were bound 

by the minimum penalty, they were free to sentence 

below the otherwise applicable guideline range. In 

such instances, the within guideline range rate fell 

to 41.7 percent, lower than the overall rate in fiscal 

year 2016. Conversely, both the non-government 

sponsored and government sponsored below range 

sentences increased to 36.3 percent and 19.4 percent 

respectively. In total, 32.1 percent of offenders 

who remained subject to the mandatory minimum 

penalty at sentencing received a sentence at the 

mandatory minimum penalty.192 

Within Range

41.7%

Above Range

2.0% Gov't Sponsored 

Below Range

19.4%

Non-Gov't 

Sponsored 

Below 

Range

36.3%

Guideline 

Minimum 

Above 

Statutory 

Minimum

75.1%

(N=6,265)

Guideline 

Minimum Below 

or Equal to 

Statutory 

Minimum

24.9%

(N=2,077)

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Figure 18. Position of Sentence Relative to the Guideline Range for Offenders 

Subject to a Mandatory Minimum Penalty at Sentencing

Fiscal Year 2016
48 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

Impact of Mandatory Minimum Penalties 

on the Federal Prison Population

This section further explores the continuing 

impact of mandatory minimum penalties on the 

overall prison population, including an update of 

the Commission’s analysis regarding the current 

portion of the federal prison population who were 

convicted of a mandatory minimum penalty. This 

section also provides new analyses regarding 

the size and composition of the federal prison 

population convicted of an offense carrying a 

mandatory minimum penalty by race, gender and 

citizenship.

As discussed in this section, many of the 

changes seen in the prison population were likely 

the result of the changes in charging practices 

discussed above. Nevertheless, the full impact 

of these policies will not be seen for many years 

as offenders sentenced between 2010 and 2016 

serve out their sentences. Many of these offenders 

received shorter sentences than they would have 

under different policies, and therefore their release 

could continue to impact the overall makeup of the 

prison population in future years. Also unclear is 

the extent to which the Department of Justice’s 

decision to refocus its efforts on prosecuting the 

most serious, readily provable offense will reverse 

the recent trends seen in the data below. 

Federal Population Overall

There have been significant changes to the 

federal prison population over the past 25 years. 

The federal population steadily increased for most 

of that period from 71,608 on December 31, 1991 

to a high of 217,815 as of December 31, 2012. 

The steady increase through 2012 was the result 

of several factors, including the scope and use of 

mandatory minimum penalties.193 Specifically, 

in the 2011 Mandatory Minimum Report, the 

Commission noted that these factors have 

included changes to mandatory minimum penalties 

themselves, both in terms of number and scope, 

as well as other systemic changes to the federal 

criminal justice system, such as the expanded 

federalization of criminal law, increased size and 

changes in the composition of the federal criminal 

docket, and higher rates of imposition of sentences 

of imprisonment.194

0

50,000

100,000

150,000

200,000

250,000

SOURCE: Allen J. Beck and Darrell K. Gilliard, Prisoners in 1994, Bureau of Justice Statistic Bulletin, 1 (1995), Allen J. Beck and Paige M. Harrison, Prisoners in 2000, 

Bureau of Justice Statistic Bulletin, 1 (2001), Heather C. West, William J. Sabol, and Sarah J. Greenman, Prisoners in 2009, Bureau of Justice Statistics Bulletin, 2 

(2010), and E. Ann Carson and Elizabeth Anderson, Prisoners in 2015, Bureau of Justice Statistics

Figure 19. Number of Offenders in Federal Prison as of December 31

1991 - 2015
 49

Section Five:

Data Analysis

Not Convicted of Offense 

Carrying a Mandatory 

Minimum Penalty

44.3%

(N=73,901)

Convicted- Relieved of

Mandatory Minimum 

Penalty

13.0%

(N=21,592)

Convicted- Subject to

Mandatory Minimum 

Penalty at Sentencing

42.7%

(N=71,278)

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafiles, USSCBOP.

This trend has reversed in recent years. Since 

the high point at the end of 2012, the number of 

federal inmates steadily decreased, falling to 

196,455 inmates (a 9.8% decrease) on December 

31, 2015. This decrease is the result of other more 

recent changes in the federal criminal justice system. 

In particular, there have been a number of changes 

related to the charging and sentencing of drug 

trafficking offenders. As discussed above in Section 

Four, these include the statutory changes made by 

the Fair Sentencing Act and the accompanying 

changes to the guidelines, and subsequent changes 

to Department of Justice policies pursuant to 

its Smart on Crime Initiative. Additionally, the 

Commission separately reduced the drug guidelines 

for all drugs, including crack cocaine, by two levels 

in 2014.195 These 2014 amendments were also made 

retroactive,196 resulting in a sentence reduction for 

30,327 offenders as of May 2017, with an average 

decrease of 25 months.197

Mandatory Minimum Offenders in the Federal 

Prison Population

The Commission also combined Commission 

data with data received from the BOP to study the 

scope and impact of mandatory minimum penalties 

in the federal system.198 This data was used to 

determine how many offenders were in prison, what 

percentage of prisoners were convicted of violating 

a statute containing a mandatory minimum penalty, 

and what percentage of prisoners were subject to a 

mandatory minimum penalty at sentencing.199

As of the end of fiscal year 2016, there were 

166,771 offenders in BOP custody, of whom 

92,870 (55.7%) were convicted of an offense 

carrying a mandatory minimum penalty. As shown 

in Figure 20, 42.7 percent of all offenders in BOP 

custody were convicted of and remained subject to 

a mandatory minimum penalty, while 13.0 percent 

were convicted of an offense carrying a mandatory 

minimum penalty but received relief, and 44.3 

percent were convicted of an offense that did not 

carry a mandatory minimum penalty. 

Figure 20. Percentage of Offenders in Prison Not Convicted of an Offense Carrying a Mandatory Minimum 

Penalty, Convicted of an Offense Carrying a Mandatory Minimum Penalty, and Subject to a Mandatory 

Minimum Penalty at Sentencing

By End of Fiscal Year 2016
50 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

As depicted in Figure 21, the number of 

offenders convicted of an offense carrying a 

mandatory minimum penalty has decreased in 

recent years, which is consistent with the downward 

trend in the overall federal prison population. As 

of September 30, 2010, combined Commission 

and BOP data identified 108,022 offenders in BOP 

custody who were convicted of an offense carrying 

a mandatory minimum penalty. By September 

30, 2016, there were 92,870 such inmates in BOP 

custody, a 14.0 percent decrease. 

The number of offenders in BOP custody who 

were convicted of a non-mandatory minimum 

offense has also decreased since 2010, but to a 

lesser extent. After hitting a high of 79,126 on 

September 30, 2014, the population of offenders 

in BOP custody convicted of violating a statute 

with no mandatory minimum penalty fell to 73,901 

as of September 30, 2016, a 6.6 percent decrease 

from 2010. The differing rates of decrease between 

the number of offenders in the federal prison 

population who were convicted of violating statutes 

with and without mandatory minimum penalties is 

most likely the result of the change in charging and 

sentencing practices discussed above. As fewer 

offenders were convicted of offenses carrying 

mandatory minimum penalties, that population 

declined, while the rate of non-mandatory minimum 

offenders remained relatively stable. 

The revised charging practices were also 

reflected in the population of offenders who were 

ultimately relieved of a mandatory minimum 

penalty versus those who remained subject to such a 

penalty at sentencing. Both groups have decreased 

in number since 2010, but they have done so at 

drastically different rates. While the number of 

offenders in BOP custody who remained subject 

to a mandatory minimum penalty at sentencing 

0

40,000

80,000

120,000

160,000

200,000

Not Convicted of an Offense Carrying a Mandatory Minimum Penalty

Convicted - Relieved of Mandatory Minimum Penalty

Convicted - Subject to Mandatory Minimum Penalty at Sentencing

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 1995 through 2016 Datafiles, USSCBOP.

Figure 21. Number of Offenders in Prison Not Convicted of an Offense Carrying a Mandatory Minimum 

Penalty, Convicted of an Offense Carrying a Mandatory Minimum Penalty, and Subject to a Mandatory 

Minimum Penalty at Sentencing

By End of Fiscal Years 1995 - 2016
 51

Section Five:

Data Analysis

decreased 4.3 percent between September 30, 2010 

(n=74,479) and September 30, 2016 (n=71,278), 

the number of offenders who were convicted but 

relieved of such penalty decreased 35.6 percent. 

This again appears consistent with the intent of 

the Department of Justice’s 2013 Smart on Crime 

Initiative. That is, while fewer offenders were 

convicted of an offense carrying a mandatory 

minimum penalty in recent years, those who were 

tended to be more serious offenders who are less 

likely to be eligible for relief. 

Combined Commission and BOP data also 

reflected changes in the distribution of offenders in 

the federal prison population who were convicted 

of violating statutes with and without mandatory 

minimum penalties. 

As a percent of the total prison population, 

offenders convicted of statutes carrying mandatory 

minimum penalties decreased slightly from 58.6 

percent as of September 30, 2010 to 55.7 percent 

as of September 30, 2016. Among this group, the 

portion of offenders who remained subject to a 

mandatory minimum penalty at sentencing steadily 

increased from 40.4 percent as of September 30, 

2010 to 42.7 percent as of September 30, 2016, 

the highest percentage for any period under 

study. Conversely, the portion of offenders who 

were convicted of a statute carrying a mandatory 

minimum penalty but relieved of the penalty before 

sentencing steadily decreased from 18.2 percent to 

13.0 percent during this same period, the lowest 

percentage for any period under study. 

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Not Convicted of an Offense Carrying a Mandatory Minimum Penalty

Convicted - Relieved of Mandatory Minimum Penalty

Convicted - Subject to Mandatory Minimum Penalty at Sentencing

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 1995 through 2016 Datafiles, USSCBOP.

Figure 22. Percentage Offenders in Prison Not Convicted of an Offense Carrying a Mandatory Minimum 

Penalty, Convicted of an Offense Carrying a Mandatory Minimum Penalty, and Subject to a Mandatory 

Minimum Penalty at Sentencing

By End of Fiscal Years 1995 - 2016
52 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

0

20,000

40,000

60,000

80,000

100,000

White Black Hispanic Other

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafiles, USSCBOP.

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

White Black Hispanic Other

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafiles, USSCBOP.

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

White Black Hispanic Other

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafiles, USSCBOP.

Figure 23. Number of 

Offenders in Federal Prison 

by Race

By End of Fiscal Years 1995 - 2016

Figure 24. Percentage of 

Offenders in Federal Prison 

Convicted of an Offense 

Carrying a Mandatory Minimum 

Penalty by Race

By End of Fiscal Years 1995 - 2016

Figure 25. Percentage of 

Offenders in Federal Prison 

Subject to a Mandatory 

Minimum Penalty at Sentencing 

by Race

By End of Fiscal Years 1995 - 2016
 53

Section Five:

Data Analysis

Mandatory Minimum Offenders in the Federal 

Prison Population – By Race

All racial groups experienced a steady decrease 

in population since 2013, following more than a 

decade of increases. At the end of fiscal year 2012, 

Hispanic offenders (n=65,384) became the most 

common racial group in federal prison for the first 

time, overtaking Black offenders (n=63,807). This 

trend continued in the years since, with Hispanic 

offenders (n=58,960) making up the largest portion 

of offenders in BOP custody at the end of fiscal year 

2016. Black offenders (n=56,509) comprised the 

second largest group, followed by White offenders 

(n=45,157) and Other Race offenders (n=5,844).

While Hispanic offenders now make up 

the largest population in BOP custody, Black 

offenders in prison were more likely than any other 

race to have been convicted of an offense carrying 

a mandatory minimum penalty across all years 

under study. As shown in Figure 24, 62.7 percent 

of Black offenders in prison were convicted of an 

offense carrying a mandatory minimum penalty 

at the end of fiscal year 2016. This percentage, 

however, has been on a steady decline since fiscal 

year 2010 (69.4% of all Black offenders in prison). 

The percentage of Hispanic offenders and Other 

Race offenders convicted of an offense carrying 

a mandatory minimum penalty also decreased 

during this time to 51.4 percent and 35.7 percent, 

respectively, at the end of fiscal year 2016. 

Conversely, the percentage of White offenders 

in prison convicted of an offense carrying a 

mandatory minimum penalty has slowly increased 

since the end of fiscal year 2004, reaching a high of 

55.1 percent at the end of fiscal year 2016.

Similar trends can be seen in Figure 25 

regarding offenders who remained subject to an 

offense carrying a mandatory minimum penalty at 

sentencing. At the end of fiscal year 2016, 51.0 

percent of Black offenders in prison were subject 

to a mandatory minimum penalty at sentencing, 

followed by White offenders (44.3%), Hispanic 

offenders (35.2%), and Other Race offenders 

(26.4%). Unlike each of the other categories, 

however, only the percentage of White offenders 

in prison subject to a mandatory minimum penalty 

increased since the end of fiscal year 2010 (from 

36.3% to 44.3%). 

Mandatory Minimum Offenders in the Federal 

Prison Population – By Gender

As reflected in Figure 26, the male population 

decreased from a high of 176,568 at the end of 

fiscal year 2012 to 155,103 at the end of fiscal 

year 2016 (a 12.2% decrease). The population of 

female offenders also decreased slightly in the last 

two fiscal years, but was more steady over the study 

period. 

Conversely, the percentage of males in prison 

who were convicted of an offense carrying a 

mandatory minimum penalty remained relatively 

constant since the Commission’s last report in 2011, 

decreasing only slightly in the last fiscal year. The 

percentage of female offenders in prison convicted 

of an offense carrying a mandatory minimum 

penalty decreased more sharply during this period, 

falling from 55.4 percent at the end of fiscal year 

2010 to a low of 46.2 percent at the end of fiscal 

year 2016. 

The percentage of male offenders in prison 

who were subject to a mandatory minimum penalty 

at sentencing has fluctuated over time. At the end 

of fiscal year 1995, 40.3 percent of male offenders 

in prison were subject to a mandatory minimum 

penalty at sentencing. This decreased to a low of 

36.0 percent at the end of fiscal year 2003, but has 

steadily increased to 43.9 percent at the end of fiscal 

year 2016 (the highest percentage of any year). The 
54 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

0

40,000

80,000

120,000

160,000

200,000

Male Female

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafiles, USSCBOP.

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Male Female

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafiles, USSCBOP.

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Male Female

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafiles, USSCBOP.

Figure 26. Number of Offenders 

in Federal Prison by Gender

By End of Fiscal Years 1995 - 2016

Figure 27. Percentage of 

Offenders in Federal Prison 

Convicted of an Offense 

Carrying a Mandatory Minimum 

Penalty by Gender

By End of Fiscal Years 1995 - 2016

Figure 28. Percentage of 

Offenders in Federal Prison 

Subject to a Mandatory Minimum 

Penalty at Sentencing by Gender

By End of Fiscal Years 1995 - 2016
 55

Section Five:

Data Analysis

percentage of female offenders in prison subject to 

a mandatory minimum penalty remained relatively 

stable in recent years following an initial decline 

in the late 1990s. As of the end of fiscal year 

2016, 27.0 percent of female offenders in prison 

were subject to a mandatory minimum penalty at 

sentencing. 

Mandatory Minimum Offenders in the Federal 

Prison Population – By Citizenship

Following a steady increase from the end of 

fiscal year 1995 (n=54,422) through the end of 

fiscal year 2014 (n=141,602), the population of U.S. 

citizens in prison decreased sharply to 130,076 at the 

end of fiscal year 2016. The population of non-U.S. 

citizens followed a similar pattern, increasing from 

the end of fiscal year 1995 (n=15,939) through the 

end of fiscal year 2011 (n=49,748) before steadily 

decreasing to 36,524 at the end of fiscal year 2016. 

While the percentage has declined slightly in 

recent years, the majority (59.1%) of U.S. citizens in 

prison at the end of fiscal year 2016 were convicted 

of an offense carrying a mandatory minimum 

penalty. This compares to 43.4 percent of non-U.S. 

citizens. As reflected in Figure 30, the percentage 

of U.S. citizens in prison who were convicted of 

an offense carrying a mandatory minimum penalty 

slightly increased over the course of the study period 

(from 55.5% at the end of fiscal year 1995 to 59.1% 

at the end of fiscal year 2016), while the percentage 

for non-U.S. citizens has decreased (from 60.5% 

at the end of fiscal year 1995 to 43.4% at the end 

of fiscal year 2016). These differences between 

citizens and non-U.S. citizens were unsurprising as 

non-U.S. citizens are more frequently convicted of 

immigration offenses that do not carry mandatory 

minimum penalties.200

A similar trend is seen when analyzing 

offenders who remained subject to a mandatory 

minimum penalty at sentencing. The percentage 

of U.S. citizen offenders who were in prison and 

were subject to a mandatory minimum penalty at 

sentencing has slowly increased over time to a high 

of 47.1 percent at the end of fiscal year 2016. The 

percentage of non-U.S. citizen offenders in prison 

subject to a mandatory minimum has decreased 

during this same period (from 43.2% at the end of 

fiscal year 1995 to 27.3% at the end of fiscal year 

2016).
United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

56 

0

40,000

80,000

120,000

160,000

200,000

U.S. Citizen Non-U.S. Citizen

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafiles, USSCBOP.

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

U.S. Citizen Non-U.S. Citizen

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafiles, USSCBOP.

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

U.S. Citizen Non-U.S. Citizen

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafiles, USSCBOP.

Figure 29. Number of Offenders in 

Federal Prison by Citizenship 

By End of Fiscal Years 1995 - 2016

Figure 31. Percentage of 

Offenders in Federal Prison Subject 

to a Mandatory Minimum Penalty 

at Sentencing by Citizenship

By End of Fiscal Years 1995 - 2016

Figure 30. Percentage of 

Offenders in Federal Prison 

Convicted of an Offense Carrying 

a Mandatory Minimum Penalty 

by Citizenship

By End of Fiscal Years 1995 - 2016
6 Conclusion 
United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

58 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

2010. At the same time, the data demonstrates 

that mandatory minimum penalties continue to 

result in long sentences as compared to offenders 

not convicted of an offense carrying a mandatory 

minimum penalty. 

While this publication provides an overview 

of the scope and impact of such penalties as a 

whole, the Commission anticipates that recent 

developments have impacted the different types of 

offenses that carry mandatory minimum penalties 

in different ways. Given these distinctions, many 

policy considerations regarding the scope of 

mandatory minimum penalties must necessarily 

be made in terms of specific offense types. To 

that end, the Commission will issue additional 

reports based on its analysis of offenses carrying 

mandatory minimum penalties in the coming 

months. These future publications will focus on 

each of the primary offense types that currently 

carry mandatory minimum penalties, including drug 

trafficking, firearms, sex offenses, and aggravated 

identity theft. While providing much of the same 

type of analysis, these offense-specific publications 

will also provide targeted analysis specific to each 

offense. 

Conclusion

Since the Commission’s 2011 Mandatory 

Minimum Report was issued in October of 2011, 

the landscape of federal mandatory minimum 

penalties has continued to evolve. For example, 

Congress passed the Fair Sentencing Act of 2010, 

which altered the mandatory minimum penalties 

established by Congress in 1986 and 1988 by 

repealing the mandatory minimum penalty for 

simple possession of crack cocaine and by increasing 

the quantities required to trigger the five- and tenyear mandatory minimum penalties for crack 

cocaine trafficking offenses from five to 28 grams 

and 50 to 280 grams, respectively. Enactment of 

the FSA triggered responses from the Commission, 

the Department of Justice, and the Supreme Court, 

all of which influenced the impact of the Act’s 

changes. Other changes to Department of Justice 

charging policy and recent Supreme Court caselaw 

have also impacted charging practices relating to 

mandatory minimum penalties.

These changes, as well as other factors, are 

reflected in the sentencing data analyzed throughout 

this publication, including an overall decrease in the 

number of offenders convicted of offenses carrying 

a mandatory minimum penalty since fiscal year
Endnotes
60 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

1 As discussed in more detail in the Commission’s 2011 report on mandatory minimum penalties, Congress created the 

first comprehensive series of federal offenses with the passage of the 1790 Crimes Act, which specified 23 federal crimes. See U.S. 

Sentencing Comm’n, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, at 7 (Oct. 

2011), available at http://www.ussc.gov/research/congressional-reports/2011-report-congress-mandatory-minimum-penaltiesfederal-criminal-justice-system [hereinafter 2011 Mandatory Minimum Report] (citing Act of Apr. 30, 1790, Chap. IX, 1 Stat. 

112). Seven of the offenses in the 1790 Crimes Act carried a mandatory death penalty: treason, murder, three offenses relating to 

piracy, forgery of a public security of the United States, and the rescue of a person convicted of a capital crime. See id. 

2 See, e.g., Sentencing Reform Act of 2015, H.R. 3713 (first introduced Oct. 8, 2015); Sentencing Reform and Corrections 

Act of 2015, S. 2123 (first introduced Oct. 1, 2015). See also Smarter Sentencing Act of 2013, S. 1410. See also 156 CONG. 

REC. S1680–83 (daily ed. Mar. 17, 2010) and 156 CONG. REC. H6196–6204 (daily. ed. July 28, 2010) (for debate associated with 

passage of Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372). See also 150 CONG. REC. H4808–11 (daily ed. 

June 23, 2004) and 150 CONG. REC. S7527 (daily ed. June 25, 2004) (for debate associated with passage of Identity Theft Penalty 

Enhancement Act, Pub. L. No. 108–275, 118 Stat. 831). See also 149 CONG. REC. S2573–90 (daily ed. Feb. 24, 2003), 149 

CONG. REC. H2440–43 (daily ed. Mar. 27, 2003), 149 CONG. REC. H3059, 3066–76 (daily ed. Apr. 10, 2003), 149 CONG. REC. 

H2950–68 (daily ed. Apr. 9, 2003), 149 CONG. REC. S5113–35, S5137–57 (daily ed. Apr. 10, 2003) (for debate associated with 

passage of Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. No. 108–21, 

117 Stat. 650).

3 For a detailed historical discussion of varying policy views regarding the use of federal mandatory minimum penalties, 

see 2011 Mandatory Minimum Report, Ch. 5. 

4 See 2011 Mandatory Minimum Report, Ch. 4(B). Overall, statutes carrying mandatory minimum penalties have 

increased in number, apply to more offense conduct, require longer terms, and are used more often than they were 20 years ago. 

These changes have occurred amid other systemic changes to the federal criminal justice system that also have had an impact on 

the size of the federal prison population. Those include expanded federalization of criminal law, increased size and changes in the 

composition of the federal criminal docket, high rates of imposition of sentences of imprisonment, and increasing average sentence 

lengths. The changes to mandatory minimum penalties and these co-occurring systemic changes have combined to increase the 

federal prison population significantly.

5 The United States Sentencing Commission (“Commission”) is an independent agency in the judicial branch of 

government. Established by the Sentencing Reform Act of 1984, its principal purposes are (1) to establish sentencing policies 

and practices for the federal courts, including guidelines regarding the appropriate form and severity of punishment for offenders 

convicted of federal crimes; (2) to advise and assist Congress, the federal judiciary, and the executive branch in the development 

of effective and efficient crime policy; and (3) to collect, analyze, research, and distribute a broad array of information on federal 

crime and sentencing issues. See 28 U.S.C. §§ 995(a)(14), (15), (20). 

6 Title II, Comprehensive Crime Control Act of 1984, Pub. L. No. 98–473 (1984). 

7 See 28 U.S.C. §§ 995(a)(14)–(16), which collectively instruct the Commission to systematically collect and disseminate 

information regarding federal sentencing.

8 See, e.g., Statement of Judge Patti B. Saris, Chair, United States Sentencing Commission, For Hearing on “S. 212, 

Sentencing Reform and Corrections Act of 2015” Before the Committee on the Judiciary, United States Senate (Oct. 19, 2015), 

available at http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/testimony/20151021_Saris_

Testimony.pdf; Statement of Judge Patti B. Saris, Chair, United States Sentencing Commission, For Hearing on “H.R. 3717, 

Sentencing Reform Act of 2015” Before the U.S. house of Representatives Judiciary Committee (Nov. 18, 2015), available at http://

www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/submissions/20151117_HR3713.pdf.
 61

Endnotes

9 See U.S. Sentencing Comm’n, Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal

Justice System (As Directed by Section 1703 of Public Law 101–647) (Aug. 1991) [hereinafter 1991 Mandatory Minimum

Report]. 

10 See id. See also Hearing on Federal Mandatory Minimum Sentencing Before the Subcomm. on Crime and Criminal 

Justice of the H. Comm. on the Judiciary, 103rd Cong. (July 28, 1993) (statement of Hon. William W. Wilkins, Jr., Chairman, 

United States Sentencing Commission), reprinted in 6 Fed. Sentencing Rep. 67 (1993); Mandatory Minimum Sentencing Laws―

The Issues: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 110th Cong. 

6 (2007) (statement of Hon. Ricardo H. Hinojosa, Chairman, United States Sentencing Commission); U.S. Sentencing Comm’n, 

Report to Congress Regarding Federal Mandatory Minimum Sentencing Penalties (on record in Mandatory Minimums and 

Unintended Consequences, Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the 

Judiciary, 111th Cong. 124 (July 14, 2009)); Mandatory Minimum Penalties Hearing Before the U.S. Sentencing Commission (May 

27, 2010).

11 Division E of the National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111–84, 123 Stat. 2190, 2843 

(enacted October 28, 2009). The Commission also submitted its 2011 Mandatory Minimum Report pursuant to its general authority 

under 28 U.S.C. §§ 994–995, and its specific authority under 28 U.S.C. § 995(a)(20) which provides that the Commission shall have 

authority to “make recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, 

and correctional matters that the Commission finds to be necessary and advisable to carry out an effective, humane, and rational 

sentencing policy.”

12 See 2011 Mandatory Minimum Report, Chs. 2–5. 

13 See id., Chs. 6–11. 

14 See id., at Ch.12. 

15 See id.

16 See id.

17 See id.

18 See id., at 369. 

19 See, U.S. Sentencing Comm’n, Recidivism Among Federal Offenders: A Comprehensive Overview (Mar. 2016), 

available at http://www.ussc.gov/research/research-reports/recidivism-among-federal-offenders-comprehensive-overview; U.S. 

Sentencing Comm’n, Recidivism Among Federal Drug Trafficking Offenders (Feb. 2017), available at http://www.ussc.gov/

research/research-reports/recidivism-among-federal-drug-trafficking-offenders; U.S. Sentencing Comm’n, Criminal History and

Recidivism of Federal Offenders (Mar. 2017), available at http://www.ussc.gov/research/research-reports/criminal-history-andrecidivism-federal-offenders.

20 This publication uses the terms “mandatory minimum penalty,” “mandatory minimum sentencing provision,” “statute 

carrying a mandatory minimum penalty,” “convicted of an offense carrying a mandatory minimum penalty,” and related terms 

interchangeably in discussing statutory provisions carrying a minimum term of imprisonment. A provision that requires a mandatory 

minimum fine, mandatory minimum term of probation, mandatory minimum term of supervised release, or any other mandatory 

component of a sentence other than imprisonment is not considered a mandatory minimum penalty for purposes of this publication. 

21 See, e.g., 21 U.S.C. §§ 841, 859, 860, and 861.
62 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

22 See 2011 Mandatory Minimum Report, at 22–23.

23 The enactment of the statutory safety valve in 1994 and passage of the Fair Sentencing Act of 2010, which are discussed 

in more detail later in this publication, have had some ameliorative effect, but mandatory minimum sentences continue to have a 

substantial effect on overall sentence length. 

24 Before 1951, mandatory minimum penalties typically punished offenses concerning treason, murder, piracy, rape, slave 

trafficking, internal revenue collection, and counterfeiting.

25 See Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91–513, 84 Stat. 1236 (1970). In 

repealing most drug mandatory minimum penalties, Congress expressed its belief that changes in the existing penalties, “particularly 

through elimination of mandatory minimum sentences,” would establish “a more realistic, more flexible, and thus more effective 

system of punishment and deterrence of violations of the federal narcotics laws.” See H. REP. NO. 91–1444 (1970), reprinted in 

1970 U.S.C.C.A.N. 4566.

26 See 1991 Mandatory Minimum Report, at 7. 

27 As noted above, it was during this same period that Congress developed and passed the Sentencing Reform Act of 1984, 

creating the Sentencing Commission and the federal sentencing guidelines.

28 A detailed historical discussion on statutory mandatory minimum penalties for drug offenses is presented in the 

Commission’s 2011 Mandatory Minimum Report, at 23–25.

29 See infra, Figure 7.

30 See Pub. L. No. 99–570, 100 Stat. 3207 (1986).

31 See Omnibus Anti-Abuse Act, Pub. L. 100–690, §6371, 102 Stat. 4181, 6470(a) (1988) (amending 21 U.S.C. §§ 846, 

963). The 1988 Act also increased the mandatory minimum penalty for engaging in a continuing drug enterprise (from 10 to 20 

years of imprisonment), and established a five-year mandatory minimum penalty for possessing more than five grams of crack 

cocaine. See id. § 4370 (amending 21 U.S.C. § 844); § 6481(a) (amending 21 U.S.C. § 848(a)). 

32 Legislative history suggests that Congress intended for the tiered structure to encourage the Department of Justice to 

direct its “most intense focus” on “major traffickers” and “serious traffickers.” See H.R. REP. NO. 99–845, pt. 1, at 11–12 (1986). 

33 Section 841 makes it unlawful for any person knowingly or intentionally to “manufacture, distribute, or dispense, or 

possess with intent to manufacture, distribute or dispense, a controlled substance.” 

34 Section 960 criminalizes the knowing and intentional importation or exportation of a controlled substance.

35 These mandatory minimum penalties became effective on November 1, 1987, for all drug types, except methamphetamine. 

See Pub. L. No. 99–570, § 1002, 100 Stat. 3207, 3207-2 (1986) (amending 21 U.S.C. § 841(b)(1)). The mandatory minimum 

penalties for methamphetamine became effective on November 18, 1988. See Pub. L. No. 100–690, § 6470(g)(3), 102 Stat. 4181, 

4378 (1988) (amending 21 U.S.C. § 841(b)(1)). Congress also added a mandatory minimum penalty for simple possession of crack 

cocaine in 1988. See Pub. L. No. 100–690, § 6371, 102 Stat. 4181, 4370 (1988) (amending 21 U.S.C. § 844(a)). The FSA altered 

the mandatory minimum penalties established by the 1986 and 1988 Acts by repealing the mandatory minimum penalty for simple 

possession of crack cocaine and by increasing the quantities required to trigger the five- and ten-year mandatory minimum penalties 

for crack cocaine trafficking offenses from five to 28 grams and 50 to 280 grams, respectively. See Pub. L. No. 111–220, § 2, 124 

Stat. 2372 (amending 21 U.S.C. §§ 841, 844).
 63

Endnotes

36 These increased mandatory minimum penalties are applicable only if the government provides notice pursuant to 21 

U.S.C. § 851, which provides that “[n]o person who stands convicted of an offense under this part shall be sentenced to increased 

punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States 

attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating 

in writing the previous convictions to be relied upon.”

37 See 21 U.S.C. §§ 841(b)(1)(B), 960(b)(2)(A)–(C), (G), and (H). 

38 See 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1)(A)–(C), (G), and (H). 

39 See 21 U.S.C. §§ 846, 963.

40 See 21 U.S.C. §§ 859, 860, and 861. A person who commits one of those offenses is subject to a mandatory minimum 

penalty of at least one year of imprisonment, unless a greater mandatory minimum penalty otherwise applies.

41 See 21 U.S.C. §§ 841(b) and 960(b).

42 A detailed historical discussion on statutory mandatory minimum penalties for firearms offenses is presented in the 

Commission’s 2011 Mandatory Minimum Report, at 25–26.

43 Congress amended the statutory penalties contained in section 924(c) three times between 1984 and 1998. First, in 1984, 

Congress added a mandatory penalty of five years of imprisonment for using or carrying a firearm during a “crime of violence.” 

See Pub. L. No. 98–473, § 1005(a), 98 Stat. 1837, 2138–39 (1984) (amending 18 U.S.C. § 924(c)). At the same time, Congress 

established mandatory sentencing enhancements for possessing dangerous ammunition during drug and violent crimes. See Pub. 

L. No. 98–473, § 1006(a), 98 Stat. 1837, 2139 (1984) (codified as amended at 18 U.S.C. § 929). Two years later, in 1986, Congress 

expanded the scope of section 924(c) to include carrying or using a firearm during a drug trafficking crime. See Pub. L. No. 99–308, 

§ 104, 100 Stat 449, 456 (1986) (amending 18 U.S.C. § 924(c)). 

Congress again amended 18 U.S.C. § 924(c) in 1998 in response to the Supreme Court’s decision in Bailey v. United States, 516 

U.S. 137, 143 (1995). In that case, the Court interpreted the prior version of section 924(c), which applied to an offender who 

“use[d] or carrie[d]” a firearm during and in relation to a crime of violence or drug trafficking crime, to require the defendant’s 

“active employment” of a firearm in the predicate offense. The 1998 amendments required a mandatory minimum penalty of five 

years if the offender “possesses a firearm” in furtherance of a “crime of violence” or “drug trafficking crime,” and established more 

severe mandatory minimum penalties where an offender, in violating section 924(c), “brandished” or “discharged” a firearm—

requiring mandatory minimum penalties of seven years and ten years of imprisonment, respectively. See Pub. L. No. 105–386, 112 

Stat. 3469 (1998). Congress also increased the mandatory minimum penalty for second or subsequent convictions under section 

924(c) from 20 years to 25 years of imprisonment. See id. 

44 18 U.S.C. § 924(c). The statute defines a “crime of violence” as any felony that “has as an element the use, attempted 

use, or threatened use of physical force against the person or property of another,” or “that by its nature involves a substantial 

risk that physical force against the person or property of another may be used in the course of committing the offense.” A “drug 

trafficking crime” includes any felony that is punishable under the Controlled Substances Act, codified at 21 U.S.C. § 801 et seq., 

or the Controlled Substances Import and Export Act, codified at 21 U.S.C. §§ 951, et seq. See 18 U.S.C. § 924(c)(2)–(3).

45 See 18 U.S.C. § 924(c)(1)(A)–(C).

46 Id. § 924(c)(1)(A), (c)(1)(D).

47 The mandatory minimum penalty for a second or subsequent violation of section 924(c) is 25 years of imprisonment. See 

18 U.S.C. § 924(c)(1)(C)(i). The mandatory minimum penalty for a second or subsequent violation becomes life imprisonment if 

the firearm involved was a machinegun, a destructive device, or was equipped with a silencer or muffler. See id. § 924(c)(1)(C)(ii).
64 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

48 See Deal v. United States, 508 U.S. 129 (1993). For additional discussion of Deal and second or subsequent violations 

of section 924(c), see 2011 Mandatory Minimum Report, at Appendix E(B)(2).

49 In 1986, Congress substantially expanded the Armed Career Criminal provision at section 924(e), and its mandatory 

minimum penalty of 15 years of imprisonment, to cover firearms possession offenses committed by those with three convictions 

for crimes broadly defined as “violent felonies” and “serious drug offenses.” See Career Criminals Amendment Act of 1986, Pub. 

L. No. 99–570, § 1402, 100 Stat. 3207, 3239–40 (1986). Previously, section 924(e) applied only to those convicted of burglaries 

and robberies. Id.

50 See 18 U.S.C. § 924(e)(1). The definitions of “violent felony” and “serious drug offense” require only that the prior 

offense be “punishable” by a term of more than one year of imprisonment, or a term of at least ten years of imprisonment, 

respectively. See 18 U.S.C. § 924(e)(2). The Armed Career Criminal Act does not contain any limitation on the date of the 

predicate offense conviction, meaning that an offender may be subject to the mandatory minimum penalty on account of offenses 

committed many years or even decades earlier. See id.

51 See 18 U.S.C. § 922(g).

52 A detailed historical discussion on statutory mandatory minimum penalties for child exploitation offenses is presented in 

the Commission’s 2011 Mandatory Minimum Report, at 27–29.

53 See Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, § 2(a), 92 Stat. 7 (1978) 

(codified as amended at 18 U.S.C. § 2251).

54 See Child Pornography Prevention Act of 1996, Pub. L. No. 104–208, § 121(4), 110 Stat. 3009 (amending 18 U.S.C. § 

2251(d)). Similarly, Congress prescribed mandatory minimum penalties of 20 years of imprisonment when it established offenses 

in 1988 for the buying or selling of children. 

55 Pub. L. No. 108–21, 117 Stat. 650 [hereinafter PROTECT Act].

56 See PROTECT Act, § 103(b)(1)(A) (amending 18 U.S.C. § 2251).

57 Id. § 103(b)(1)(B) (amending 18 U.S.C. § 2251A(a), (b)).

58 Id. § 103(b)(1)(D) (amending 18 U.S.C. § 2252(b)(2)).

59 Id. § 103(b)(1)(C) (amending 18 U.S.C. § 2252(b)(1); id. § 103(b)(E) (amending 18 U.S.C. § 2252A(b)(1)). Congress 

had previous set mandatory minimum penalties for recidivist offenders who possess, receive, and traffic in child pornography. See

2011 Mandatory Minimum Report, at n.168. 

60 Id. § 103(b)(2)(A) (amending 18 U.S.C. § 2422(b)).

61 Pub. L. No. 109–248, 120 Stat. 587 [hereinafter the Adam Walsh Act].

62 Id. § 208 (amending 18 U.S.C. § 1591(b)(1)).

63 Id. § 203 (amending 18 U.S.C. § 2422(b)).

64 Id. § 701 (codified at 18 U.S.C. §2252A(g)).
 65

Endnotes

65 Id. § 702 (codified at 18 U.S.C. § 2260A). The Sex Offender Registration and Notification Act, which is Title I of 

the Adam Walsh Child Protection and Safety Act of 2006, created mandatory minimum penalties that apply to offenders who, 

having failed to register as a sex offender, commit a crime of violence (consecutive mandatory minimum penalty of five years of 

imprisonment), id. § 141 (codified at 18 U.S.C. §2250(c)), or certain federal felonies involving a child (consecutive mandatory 

minimum penalty of ten years of imprisonment). 

66 Sections 2252 and 2252A use not only the term “distribute” but also the term “sell,” thus, broadly encompassing any 

type of transmission of child pornography to another, both electronic and non-electronic distribution and both commercial or noncommercial distribution. See, e.g., 18 U.S.C. §§ 2252(a)(1), (a)(3) & 2252A(a)(1), (a)(4)(B). In addition, sections 2252, 2252A 

and 2260(b) each prohibit the possession of child pornography with the intent to distribute it (in different circumstances). See 18 

U.S.C. §§ 2252(a)(3)(B), 2252A(a)(4)(B), & 2260(b). 

67 The transportation of child pornography proscribed by statute does not require that the defendant intended to distribute it 

to another person. See, e.g., United States v. Fore, 507 F.3d 412, 415 (6th Cir. 2007); United States v. Burgess, 576 F.3d 1078, 1102 

(10th Cir. 2009).

68 See 18 U.S.C. §§ 2251(e), 2252(b), 2252A(b), and 2260(c). Section 2252 concerns child pornography depicting an actual 

minor, while section 2252A concerns child pornography depicting a computer-generated image “indistinguishable from that of” 

an actual minor “engaging in sexually explicit conduct” or modified “to appear that an identifiable minor is engaging in sexually 

explicit conduct.” 18 U.S.C. §§ 2252A and 2256(8)(B) & (C).

69 18 U.S.C. §§ 2252(b)(2), 2252A(b)(2).

70 These enumerated sex offenses include prior convictions for sex trafficking of children, obscenity offenses, sexual abuse 

of adults or children, and child pornography offenses. 18 U.S.C. § 2252(b)(2).

71 See id.

72 18 U.S.C. §§ 2252(b)(1), 2252A(b)(1), 2260(c)(2).

73 See id.

74 18 U.S.C. § 1466A(a) & (b).

75 A detailed historical discussion on statutory mandatory minimum penalties for identity theft offenses is presented in the 

Commission’s 2011 Mandatory Minimum Report, at 29.

76 See Pub. L. No. 108–275, § 2, 118 Stat. 831 (2004).

77 See 18 U.S.C. § 1028A. “[T]he term ‘means of identification’ means any name or number that may be used, alone or in 

conjunction with any other information, to identify a specific individual,” and includes names, social security numbers, dates of 

birth, driver’s licenses, taxpayer identification numbers, biometric data, and access devices. See 18 U.S.C. § 1028(d)(7). In turn, 

the term “access device” means “any card, plate, code, account number, electronic serial number, mobile identification number, 

personal identification number . . . or other means of account access that can be used, alone or in conjunction with another access 

device, to obtain money, goods, services, or any other thing of value ....” See 18 U.S.C. § 1029(e)(1), incorporated by reference in 

18 U.S.C. § 1028(d)(7).

78 See 18 U.S.C. § 1028A (c)(1) (“[18 U.S.C. §] 641 (relating to theft of public money, property, or rewards), . . . 656 

(relating to theft, embezzlement, or misapplication by bank officer or employee), or . . . 664 (relating to theft from employee benefit 

plans”).
66 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

79 See id. at § 1028A (c)(3) (“[Title 18, United States Code,] section 922(a)(6) (relating to false statements in connection 

with the acquisition of a firearm)”); § 1028A(c)(4) (“any provision contained in [chapter 47 of Title 18, United States Code] 

(relating to fraud and false statements), other than this section or section 1028(a)(7)”); § 1028A(c)(5) (“any provision contained in 

chapter 63 [of Title 18, United States Code] (relating to mail, bank, and wire fraud)”); § 1028A(c)(8) (“section 523 of the GrammLeach-Bliley Act (15 U.S.C. § 6823) (relating to obtaining customer information by false pretenses)”); § 1028A(c)(11) (“section 

208, 811, 1107(b), 1128B(a), or 1632 of the Social Security Act (42 U.S.C. §§ 408, 1011, 1307(b), 1320a-7b(a), and 1383a) 

(relating to false statements relating to programs under the Act)”).

80 See id. at § 1028A (c)(2) (“[Title 18, United States Code,] section 911 (relating to false personation of citizenship)”); § 

1028A(c)(6) (“any provision contained in chapter 69 [of Title 18, United States Code] (relating to nationality and citizenship)”).

81 See id. § 1028A (c)(7) (“any provision contained in chapter 75 [of title 18, United States Code] (relating to passports and 

visas)”).

82 See id. at § 1028A (c)(9) (“section 243 or 266 of the Immigration and Nationality Act (8 U.S.C. §§ 1253 and 1306) 

(relating to willfully failing to leave the United States after deportation and creating a counterfeit alien registration card)”); § 

1028A(c)(10) (“any provision contained in chapter 8 of title II of the Immigration and Nationality Act (8 U.S.C. § 1321 et seq.) 

(relating to various immigration offenses)”).

83 Id. at § 1028A(b)(2).

84 Id. at § 1028A(b)(3).

85 Id. at § 1028A(b)(4).

86 28 U.S.C. § 994(a).

87 28 U.S.C. § 994(b).

88 A detailed discussion regarding the interaction between mandatory minimum penalties and the guidelines is presented in 

the Commission’s 2011 Mandatory Minimum Report, at Ch. 3.

89 The Commission achieved this by setting a base offense level for Criminal History Category I offenders that corresponds 

to the first guidelines range on the sentencing table with a guideline minimum higher than the mandatory minimum. Therefore, the 

base offense level, before any enhancements, adjustments, or consideration of criminal history, produced a guideline range that was 

above the applicable mandatory minimum penalty.

90 28 U.S.C. § 994(n).

91 See USSG Ch. 1, Pt. A at 2. (“The Commission . . . views the guideline-writing process as evolutionary. It expects, and 

the governing statute anticipates, that continuing research, experience, and analysis will result in modifications and revisions to the 

guidelines through submission of amendments to Congress.”); id. at 12. (“[The Commission’s] mandate rested on congressional 

awareness that sentencing is a dynamic field that requires continuing review by an expert body to revise sentencing policies, in 

light of application experience, as new criminal statutes are enacted, as more is learned about what motivates and controls criminal 

behavior.”).

92 See USSG §2D1.1(c) (2013).
 67

Endnotes

93 See USSG App. C, amend. 782 (effective Nov. 1, 2014). This amendment followed a series of changes to how the 

penalties for crack were incorporated into the guidelines beginning in 2007. At that time, due to its ongoing concern about 

the 100-to-1 crack-to-powder drug quantity ratio, the Commission lowered the guideline for crack cocaine offenses, resulting in 

guideline ranges that included, rather than exceeded, the statutory mandatory minimum penalties. See USSG App. C, amend. 706 

(effective Nov. 1, 2007), as amended by amend. 711 (effective Nov. 1, 2007). The Commission subsequently shifted the levels 

corresponding to the crack cocaine mandatory minimum penalties back to 26 and 32, however, in light of the Fair Sentencing Act 

of 2010’s changes to the mandatory minimum drug quantity thresholds. See USSG App. C, amend. 748 (effective Nov. 1, 2010), 

as repromulgated and amended by amend. 750 (effective Nov. 1, 2011).

94 Accordingly, offenses involving drug quantities that trigger a five-year statutory minimum were assigned a base offense 

level of 24 (51 to 63 months at Criminal History Category I, which includes the five-year (60 month) statutory minimum for such 

offenses), and offenses involving drug quantities that trigger a ten-year statutory minimum were assigned a base offense level of 30 

(97 to 121 months at Criminal History Category I, which includes the ten-year (120 month) statutory minimum for such offenses). 

Offense levels for quantities above and below the mandatory minimum threshold quantities similarly were adjusted downward by 

two levels, except that the minimum base offense level of 6 and the maximum base offense level of 38 for most drug types were 

retained, as were previously existing minimum and maximum base offense levels for particular drug types.

95 See USSG App. C, amend. 782 (effective Nov. 1, 2014). 

96 See id. As discussed below, the “safety valve” provision, which applies to certain non-violent drug defendants, allows the 

court to impose a sentence below a statutory mandatory minimum penalty if the court finds, among other things, that the defendant 

“has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that 

were part of the same course of conduct or of a common scheme or plan.” See 18 U.S.C. § 3553(f). The guidelines incorporate the 

“safety valve” at §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) and, furthermore, provide 

a 2-level reduction if the defendant meets the “safety valve” criteria. See §2D1.1(b)(16).

97 See USSG App. C, amend. 782 (effective Nov. 1, 2014). Since the initial selection of offense levels 26 and 32, the 

guidelines have been amended many times—often in response to congressional directives—to provide a greater emphasis on the 

defendant’s conduct and role in the offense rather than on drug quantity. The version of §2D1.1 in the original 1987 Guidelines 

Manual contained a single specific offense characteristic: a 2-level enhancement if a firearm or other dangerous weapon was 

possessed. Section 2D1.1 in effect at the time of the amendment contained 14 enhancements and three downward adjustments 

(including the “mitigating role cap” provided in subsection (a)(5)). These numerous adjustments, both increasing and decreasing 

offense levels based on specific conduct, reduces the need to rely on drug quantity in setting the guideline penalties for drug 

trafficking offenders as a proxy for culpability, and the amendment permits these adjustments to differentiate among offenders more 

effectively.

98 See USSG App. C, amend. 665 (effective Nov. 1, 2004).

99 USSG §2K2.4(b) (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes).

100 See, e.g., 2 U.S.C. § 390, 12 U.S.C. § 617, 18 U.S.C. § 1122.

101 USSG §5G1.1(b) (Sentencing on a Single Count of Conviction) (“Where a statutorily required minimum sentence is 

greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline 

sentence.”).

102 See USSG §5G1.1(c)(2) (“In any other case, the sentence may be imposed at any point within the applicable guideline 

range, provided that the sentence ... is not less than any statutorily required minimum sentence.”).
68 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

103 While this section focuses on mechanism for relief from a mandatory minimum penalty, some offenders are also sentenced 

to a term of imprisonment that is above the applicable mandatory minimum. 

104 Various mechanisms have been in place permitting a court to impose a sentence lower than a mandatory minimum 

penalty in certain cases for more than a century. For example, even before statutory mechanisms were in place, district courts 

avoided imposing a term of imprisonment, even for offenses carrying a mandatory minimum penalty, by suspending the sentence or 

by placing the defendant under the supervision of a state probation officer. For a detailed discussion of the historical development 

of such “relief” mechanisms, see 2011 Mandatory Minimum Report, at 31–36.

105 See Pub. L. No. 99–570, 100 Stat. 3207 (1986).

106 18 U.S.C. § 3553(e). For additional discussion of section 3553(e) and relevant case law, development of such “relief” 

mechanisms, see 2011 Mandatory Minimum Report, Appendix E(A)(2), (B)(3).

107 Id.

108 See 28 U.S.C. § 994(n) (“The Commission shall assure that the guidelines reflect the general appropriateness of imposing 

a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum 

sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has 

committed an offense.”).

109 See USSG §5K1.1, comment. (n.1). 

110 See Melendez v. United States, 518 U.S. 120 (1996).

111 For a detailed legal and statistical analysis of Rule 35, see U.S. Sentencing Comm’n, The Use of Federal Rule of

Criminal Procedure 35(b) (January 2016).

112 Fed. R. Crim. P. 35(b)(2). Prior to the enactment of the Sentencing Reform Act, Rule 35(b) allowed the court to reduce 

a sentence for any reason within 120 days after the sentence was imposed or probation was revoked, and the court had authority 

to change a sentence from a term of incarceration to probation. See Fed. R. Crim. P. 35(b) (1983). The Sentencing Reform Act 

amended Rule 35(b), however, making three significant changes. See Fed. R. Crim. P. 35(b) (1986). First, the government was 

required to make a motion seeking a reduction, which deprived the court of authority to reduce a sentence on its own. Second, 

the time period was expanded from 120 days to one year. Third, the reduction was limited to reflect the defendant’s “substantial 

assistance in the investigation or prosecution of another person who has committed an offense, in accordance with the guidelines 

and policy statements issued by the Sentencing Commission.” Id. In addition, before the Act became effective, Congress added 

language to Rule 35(b) authorizing the court to reduce a sentence lower than the statutory minimum. See id. at 35(b)(2) (“When 

acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.”). 

113 Fed. R. Crim. P. 35(b)(2). This language has changed substantially over time. From 1991 to 2002, the Rule permitted 

a motion after one year only if the defendant learned the information in question more than one year after sentencing. In 2002, 

the Rule was amended to incorporate the current, broader language. See Fed. R. Crim. P. 35 advisory committee’s notes, 2002 

Amendments (“where the usefulness of the information is not reasonably apparent until a year or more after sentencing, no sound 

purpose is served by the current rule’s removal of any incentive to provide that information to the government one year or more 

after the sentence (or if previously provided, for the government to seek to reward the defendant) when its substantiality become 

evident.”).

114 Fed. R. Crim. P. 35(b)(3). Before this language was added in 1998, some pre-sentencing assistance was not substantial 

enough to warrant a §5K1.1 motion; however, because of Rule 35’s language, this assistance could also not then be considered on 

a Rule 35(b) motion. See, e.g., United States v. Speed, 53 F.3d 643, 645 (4th Cir. 1995); United States v. Bureau, 52 F.3d 584, 595 

(6th Cir. 1995).
 69

Endnotes

115 Fed. R. Crim. P. 35(b)(4).

116 See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–322, § 80001, 108 Stat. 1796 (codified 

at 18 U.S.C. § 3553(f)). Enactment of the safety valve stemmed from the Commission’s 1991 report on mandatory minimums and 

its subsequent work with Congress to enact new legislation that would address the impact of mandatory minimum penalties on 

low-level drug-trafficking offenders. See 2011 Mandatory Minimum Report, at 34–36 (discussing the history of the statutory safety 

valve).

117 These offenses include an offense under section 401, 404, and 406 of the Controlled Substances Act (21 U.S.C. §§ 841 

(possession with intent to distribute), 844 (possession), 846 (conspiracy)) or section 1010 or 1013 of the Controlled Substances 

Import and Export Act (21 U.S.C. §§ 961 (conspiracy), 963 (importation)). See 18 U.S.C. § 3553(f). 

118 See USSG §5C1.2(a). As required by Congressional directive, the new offense level cannot be lower than 17 for offenders 

whose mandatory minimums were at least five years in length. See USSG §5C1.2(b).

119 See USSG §2D1.1(b)(17).

120 See USSG §2D1.1, comment. (n.21). This application note was added to the guidelines, effective November 1, 2002, that 

clarifies that the 2-level reduction does not depend on whether the defendant is convicted under a statute that carries a mandatory 

minimum term of imprisonment. See USSG App. C, amend. 640 (effective Nov. 1, 2002).

121 Pub. L. No. 111–220, 124 Stat. 2372 (Aug. 3, 2010) [hereinafter FSA].

122 See U.S. Sentencing Comm’n, Report to the Congress: 1995 Cocaine and Federal Sentencing Policy (Feb. 1995) 

(recommending against the 100-to-1 crack-to-powder drug quantity ratio and that Congress revisit the penalties applicable to simple 

possession of crack cocaine), available at http://www.ussc.gov/research/congressional-reports/1995-report-congress-cocaine-andfederal-sentencing-policy; U.S. Sentencing Comm’n, Report to the Congress: 1997 Cocaine and Federal Sentencing Policy

(Apr. 1997) (same), available at http://www.ussc.gov/research/congressional-reports/1997-report-congress-cocaine-and-federalsentencing-policy; U.S. Sentencing Comm’n, Report to the Congress: 2002 Cocaine and Federal Sentencing Policy (May 2002) 

(recommending a crack-to-powder drug quantity ratio of no more that 20-to-1 and that Congress repeal the mandatory minimum 

penalty for simple possession of crack cocaine), available at http://www.ussc.gov/research/congressional-reports/2002-reportcongress-federal-cocaine-sentencing-policy; U.S. Sentencing Comm’n, Report to the Congress: 2007 Cocaine and Federal

Sentencing Policy (May 2007) (reaffirming the Commission’s “consistently held position that the 100-to-1 drug quantity ratio 

significantly undermines the various congressional objectives set forth in the Sentencing Reform Act).

123 See FSA, at § 2 (amending 21 U.S.C. §§ 841, 844).

124 See id. at §§ 6–7.

125 See USSG App. C, amend. 750 (effective Nov. 1, 2011) (implementing as permanent the temporary, emergency 

amendment (USSG App. C, amend. 748 (effective Nov. 1, 2010)) that implemented the FSA); USSG App. C, amend. 759 (effective 

Nov. 1, 2011). The statutory changes made by the FSA apply only to offenders sentenced on or after August 3, 2010, the Act’s 

effective date. Thus, the revised penalties apply to offenders who committed a crime after the Act became effective, as well as 

those who committed a crime before the Act went into effect but were sentenced after the Act’s effective date. The revised FSA 

provisions do not, however, apply retroactively to any offender sentenced before the Act’s effective date. See Dorsey v. United 

States, 132 S. Ct. 2321 (2013).

126 See U.S. Dept. of Justice, Attorney General Eric Holder, Memorandum: Application of the Statutory Mandatory 

Minimum Sentencing Laws for Crack Cocaine Offenses Amended by the Fair Sentencing Act of 2010 (July 15, 2011), available at 

https://www.justice.gov/oip/ag_memo_application_statutory_mandatory_sentencing_laws_amended_fair_sentencing_act_2010/

download.
70 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

127 See Dorsey, 132 S. Ct. at 2335.

128 The FSA also directed the Commission to “study and submit to Congress a report regarding the impact of the changes in 

federal sentencing law under this Act and the amendments made by this Act.” Pub. L. No. 111–220, at § 10.

129 See U.S. Sentencing Comm’n, Report to the Congress: Impact of the Fair Sentencing Act of 2010 (Aug. 2015), 

available at http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/drug-topics/201507_RtC_FairSentencing-Act.pdf. 

130 See id. at 3.

131 See, e.g., Sentencing Reform Act of 2015, H.R. 3713 (first introduced Oct. 8, 2015); Sentencing Reform and Corrections 

Act of 2015, S. 2123 (first introduced Oct. 1, 2015). See also Smarter Sentencing Act of 2013, S. 1410.

132 See U.S. Dept. of Justice, Attorney General John Ashcroft, Memorandum: Department Policy Concerning Charging 

Criminal Offenses, Disposition of Charges, and Sentencing (September 22, 2003).

133 See U.S. Dept. of Justice, Attorney General Eric Holder, Memorandum: Department Policy on Charging and Sentencing 

(May 19, 2010), available at http://www.ussc.gov/sites/default/files/pdf/training/annual-national-training-seminar/2014/DOJ_

memo.pdf.

134 133 S. Ct. 2151 (2013).

135 530 U.S. 466 (2000).

136 536 U.S. 545 (2002).

137 See Alleyne, 133 S. Ct. at 2160. 

138 Id. at 2161.

139 Id.

140 Id.

141 See United States v. Delgado-Marrero, 744 F.3d 167, 185 (1st Cir. 2014); United States v. Harakaly, 734 F.3d 88, 95 

(1st Cir. 2013); United States v. Claybrooks, 729 F.3d 699, 708 (7th Cir. 2013). However, factual findings made for the purposes 

of applying the sentencing guidelines that do not increase the applicable mandatory minimum sentence do not violate the rule in 

Alleyne. See United States v. Ramirez-Negron, 751 F.3d 42, 49 (1st Cir.), cert. denied 135 S. Ct. 276 (2014); United States v. 

Hernandez, 731 F.3d 666, 672 (7th Cir. 2013); United States v. Johnson, 732 F.3d 577, 583–84 (6th Cir. 2013).

142 At the direction of the Attorney General in early 2013, the Justice Department launched a “comprehensive review of 

the criminal justice system in order to identify reforms that would ensure federal laws are enforced more fairly and—in an era 

of reduced budgets—more efficiently.” The “project identified five goals: (1) To ensure finite resources are devoted to the most 

important law enforcement priorities; (2) To promote fairer enforcement of the laws and alleviate disparate impacts of the criminal 

justice system; (3) To ensure just punishments for low-level, nonviolent convictions; (4) To bolster prevention and reentry efforts to 

deter crime and reduce recidivism; and (5) To strengthen protections for vulnerable populations.” See U.S. Dept. of Justice, Smart

on Crime: Reforming the Criminal Justice System for the 21st Century (Aug. 2013), available at https://www.justice.gov/sites/

default/files/ag/legacy/2013/08/12/smart-on-crime.pdf.
 71

Endnotes

143 See U.S. Dept. of Justice, Attorney General Eric Holder, Memorandum: Department Policy on Charging Mandatory 

Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (August 12, 2013), available at https://www.justice.gov/

sites/default/files/ag/legacy/2014/04/11/ag-memo-drug-guidance.pdf (“We must ensure that our most severe mandatory minimum 

penalties are reserved for serious, high-level, or violent drug traffickers. In some cases, mandatory minimum and recidivist 

enhancement statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles 

of Federal Prosecution.”).

144 Id.

145 Id. The memorandum provided “[w]hen determining whether an enhancement is appropriate, prosecutors should consider 

the following factors: (1) Whether the defendant was an organizer, leader, manager or supervisor of others within a criminal 

organization; (2) Whether the defendant was involved in the use or threat of violence in connection with the offense; (3) The nature 

of the defendant's criminal history, including any prior history of violent conduct or recent prior convictions for serious offenses; 

(4) Whether the defendant has significant ties to large-scale drug trafficking organizations, gangs, or cartels; (5) Whether the filing 

would create a gross sentencing disparity with equally or more culpable co-defendants; and (6) Other case-specific aggravating or 

mitigating factors.” Id.

146 See U.S. Dept. of Justice, Attorney General Jeff Sessions, Memorandum: Department Charging and Sentencing Policy 

(May 10, 2017), available at https://www.justice.gov/opa/press-release/file/965896/download.

147 137 S. Ct. 1170 (2017).

148 Id. at *1173.

149 Id.

150 U.S. Sentencing Comm’n, Quick Facts: Mandatory Minimum Penalties (May 2016), available at http://www.ussc.gov/

sites/default/files/pdf/research-and-publications/quick-facts/Quick_Facts_Mand_Mins_FY15.pdf.

151 See supra note 8.

152 28 U.S.C. § 994(w) (requiring the chief judge of each federal judicial district to ensure that these documents are submitted 

within 30 days of entry of judgment in a criminal case). The Commission collects information only on criminal cases involving at 

least one felony or Class A misdemeanor conviction, with the exception that death penalty case information is not submitted to the 

Commission because these cases are considered non-guidelines cases.

153 The figures for fiscal year 2016 are highlighted because much of the data analyzed in this publication is taken from the 

Commission’s fiscal year 2016 data file. Nevertheless, this publication also analyzes trends over time by using the Commission’s 

data files from fiscal years 1991 through 2015. The same methodology applied to selecting cases for analysis in all years. 

154 The Commission excluded 5,386 cases because those cases lacked the complete documentation needed for all the 

analyses performed, including guideline application and demographic information. The Commission excluded other cases in which 

the statement of reasons form and the presentence investigation report contained conflicting information concerning guideline 

application because the Commission could not ascertain how the Chapter 2 guideline was applied. Finally, the Commission 

excluded other cases lacking documentation concerning the statutes of conviction because the Commission could not determine 

whether those cases involved a conviction of an offense carrying a mandatory minimum penalty.

155 For purposes of this publication, an offender was considered to have been convicted of an offense carrying a mandatory 

minimum penalty if any statute of conviction in the case contained a provision requiring imposition of a minimum term of 

imprisonment. This determination was made regardless of whether the offender was ultimately sentenced without regard to the 

mandatory minimum penalty through operation of the statutory safety valve provision or through a substantial assistance motion 

made by the government.
72 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

156 The 62,251 cases analyzed for this publication represents a 15.0% decrease from the 73,239 fiscal year 2010 cases 

analyzed for the Commission’s last report on mandatory minimum penalties data.

157 The frequency and types of relief from mandatory minimum penalties are described in greater detail later in this 

publication. 

158 See U.S. Dept. of Justice, Attorney General Eric Holder, Memorandum, supra note 143.

159 See, e.g., USSG §2D1.1(b)(1).

160 See, e.g., USSG §2D1.1(b)(2).

161 See USSG §2D1.1(a)(1)–(a)(4). The Commission did not collect information regarding which specific base offense level 

subsection was used in the fiscal year 2010 data. Thus, for purposes of this analysis, this information is collected based upon the 

statute of conviction cited by the court and the base offense level identified in available sentencing documents. The number of cases 

sentenced under the specified base offenses may, therefore, be under-represented for fiscal year 2010. 

162 See USSG §3B1.1 (Aggravating Role). For purposes of this analysis, aggravating role is used as a proxy for the 

Department’s criteria that the defendant is not an organizer, leader, manager or supervisor of others within a criminal organization. 

See U.S. Dept. of Justice, Attorney General Eric Holder, Memorandum, supra note 143. 

163 See id.

164 A complete distribution of offenders convicted of an offense carrying a mandatory minimum penalty, as well as those 

who remained subject to such penalty at sentencing is provided for each circuit and district in Appendix A. 

165 This compares to three such districts in fiscal year 2010: Southern Texas (5.7%, n=1,129), Western Texas (5.3%, 

n=1,061), and Southern Florida (3.9%, n=776). 

166 In fiscal year 2010, those districts were: Puerto Rico (62.9%, n=491), Southern Indiana (55.8%, n=182), Minnesota 

(54.3%, n=261), Southern Iowa (54.2%, n=227), Western Virginia (53.7%, n=191), Hawaii (51.9%, n=82), Central Illinois (51.9%, 

n=191), Eastern Tennessee (51.4%, n=420), Western North Carolina (50.5%, n=251), and Eastern North Carolina (50.1%, n=350).

167 As noted in the 2011 Mandatory Minimum Report, the inclusion of immigration offenses in the overall percentage of 

offenders could mask the prevalence or lack thereof of mandatory minimum carrying offense penalties. This is because immigration 

offenses, while no longer the largest portion of the docket (as it was in fiscal year 2010), continue to constitute a significant portion 

of the federal docket, at 29.6% in fiscal year 2016. Nevertheless, only 0.3% of all immigration offenders in fiscal year 2016 were 

convicted of offenses carrying a mandatory minimum penalty. As such, excluding immigration offenses from the analysis can 

present a clearer picture of where mandatory minimum penalties are most frequently used. As demonstrated in Appendix B, when 

immigration cases are excluded, there were three districts in fiscal year 2016 in which more than 50% of the caseload involved 

offenders convicted of an offense carrying a mandatory minimum penalty. This is, nevertheless, a significant reduction from fiscal 

year 2010, in which there were 18 such districts.

168 The top five districts are Puerto Rico (51.6%), Middle Florida (45.7%), Hawaii (45.7%), Central Illinois (44.2%), and 

Northern Florida (44.0%). 

169 The bottom five districts are Arizona (1.9%), New Mexico (3.5%), Guam (4.6%), Southern California (7.6%), and 

Vermont (7.7%).
 73

Endnotes

170 For purposes of this figure, “drug offenses” include those offenses in which the primary guideline used at sentencing is 

found at Chapter 2, Part D of the Guidelines Manual. “Sexual abuse offenses” are those offenses in which the primary guideline 

used at sentencing was §§2A3.1, 2A3.2, 2A3.3, 2A3.4, 2G1.1, 2G1.3, or 2G2.1. “Pornography offenses” are those offenses in 

which the primary guideline used at sentencing was §§2G2.2 or 2G2.4 (which was consolidated with §2G2.2 in 2004). “Firearms 

offenses” are those offenses in which the primary guideline used at sentencing was in Chapter 2, Part K of the Guidelines Manual 

or the only count of conviction was U.S.C. 18 § 924(c). The “other” category includes 35 other primary sentencing guidelines, 

including, for example, §2B1.1 (40.6%; n=781). For the pie reflecting fiscal year 1990, “drug offenses” include importation 

and distribution of controlled substances, simple possession of controlled substances and use of a communication facility in the 

commission of a controlled substance offense. See 1991 Mandatory Minimum Report, at 51 (“Drugs Offenses” was referred to as 

“Controlled Substance” in the 1991 report). “Violent offenses” include homicide, kidnapping, sex offenses, robbery, assault, and 

burglary/breaking and entering.

171 The statutory penalties for violating 21 U.S.C. § 846 are the “same penalties as those prescribed for the offense, the 

commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 846.

172 The top five statutes are largely unchanged from fiscal year 2010, except that section 924(c)(1)(A)(ii) replaced the twoyear mandatory minimum for aggravated identify theft found at 18 U.S.C. § 1028A as the last entry.

173 The Commission obtains data on the race and ethnicity of the offender from the presentence report. The “Other Race” 

category includes offenders of Native American, Alaskan Native, and Asian or Pacific Islander origin. Of the offenders analyzed 

for this study, there were 2,490 offenders identified as “Other” race offenders: 1,085 (43.7%) were of Asian/Pacific Islander origin, 

1,188 (47.8%) were Native American/Alaskan Native, and 211 (8.5%) were of other origin.

174 The percentage of Hispanic offenders in 2016 who are relieved of application of a mandatory minimum penalty represents 

an increase of nearly ten percent from the proportion in fiscal year 2010 (55.5% compared to 45.7%). 

175 Of the 8,342 offenders who remained subject to a mandatory minimum penalty at the time of sentencing, 54.9% were 

drug offenders, 11.0% were child pornography offenders, 9.9% were identity theft offenders convicted of a violation of 18 U.S.C § 

1028A, 7.8% were firearms offenders, and 7.6% were sexual abuse offenders.

176 This is, in large part, because non-U.S. citizens are often convicted of immigration offenses, which do not carry mandatory 

minimum penalties. See supra note 167. 

177 See supra, Figure 2.

178 See id.

179 See 2011 Mandatory Minimum Report, Figure 7-8.

180 In fiscal year 2016, more than three-quarters of crack cocaine offenders were Black (82.6%), followed by Hispanic 

(11.3%), White (5.6%), and Other Races (0.5%). 

181 There were 1,562 crack cocaine trafficking offenders in fiscal year 2016, a 67.1% decrease from fiscal year 2010 

(n=4,751). 

182 In fiscal year 2016, more than half of methamphetamine offenders were Hispanic (50.4%), followed by White (38.8%), 

Black (6.0%), and Other Races (4.8%). 

183 There were 6,508 methamphetamine trafficking offenders in fiscal year 2016, a 56.1% increase from fiscal year 2010 

(n=4,169). 
74 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

184 See USSG §4A1.2(h).

185 See USSG §5K1.1 (Substantial Assistance to Authorities) (“Upon motion of the government stating that the defendant 

has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court 

may depart from the guidelines.”).

186 The average sentence lengths reported here include sentences for all offenders, regardless of the type of sentence 

imposed. Offenders who did not receive a sentence of imprisonment are counted as having received a sentence of zero months of 

imprisonment. 

187 In fiscal year 2016, offenders who were relieved of a mandatory minimum penalty through substantial assistance only, 

had an average guideline minimum (including any statutory minimum) of 170 months, compared to 66 months for offenders 

relieved through safety valve and 78 months for those relieved through safety valve and substantial assistance.

188 See USSG §§5C1.2, 3B1.1.

189 See supra, Figure 4.

190 The Commission anticipates providing more in-depth analyses of the impact of mandatory minimum penalties on 

sentences relative to the applicable guideline range by specific offense type in future publications.

191 Unsurprisingly, offenders who are relieved of the mandatory minimum penalty at sentencing are least likely to receive 

a within range sentence (20.5%) due to high rate of substantial assistance departures (63.0%).

192 Conversely, 5.5% of offenders who were relieved from the application of the mandatory minimum penalty received a 

sentence at or above the mandatory minimum penalty. In fiscal year 2010, no offenders who were relieved from application of the 

mandatory minimum penalty received a sentence at or above the mandatory minimum penalty. 

193 See 2011 Mandatory Minimum Report, at Ch. 4. 

194 See id.

195 See USSG App. C, amend. 782 (effective Nov. 1, 2014). 

196 See USSG App. C, amend. 788 (effective Nov. 1, 2014).

197 See U.S. Sentencing Comm’n, 2014 Drug Amendment Retroactivity Data Report (May 2017), available at http://

www.ussc.gov/sites/default/files/pdf/research-and-publications/retroactivity-analyses/drug-guidelines-amendment/20170510-

Drug-Retro-Analysis.pdf.

198 The Commission received information from the BOP on the start and release date for each offender in prison from 

October 1, 1990 through September 30, 2016. These offenders were then matched with the Commission’s information on these 

offenders. The Commission used September 30, 1995, as the relevant date from which to draw the prison population comparisons 

presented throughout this report because of data limitations prior to that date. The Commission can only identify offenders 

convicted of violating a statute carrying a mandatory minimum penalty who were sentenced after nationwide implementation of 

the federal sentencing guidelines in January 1989, and for whom the Commission received the necessary sentencing documentation 

from the sentencing court to perform this analysis. Therefore, this analysis cannot account for offenders in BOP custody who were 

convicted of violating a statute carrying a mandatory minimum and sentenced prior to January 1989. For example, only 27.8% 

of offenders in the custody of BOP as of September 30, 1991, were sentenced after January 1989. Therefore, an analysis of the 

offenders in BOP custody as of that date could not account for the remaining 72.2% of offenders in BOP custody at that time. As 

of September 30, 1995, 71.8% of offenders in BOP custody were sentenced after January 1989, and that figure increased to 90.5% 

as of September 30, 2009.
 75

Endnotes

199 The numbers and percentages reflected in this publication relating to the BOP population for fiscal years 2010 and earlier 

may differ slightly from those reported in the Commission’s 2011 Mandatory Minimum Report. These differences are due to a 

slight revision in the methodology used to merge and analyze the Commission and BOP data to better account for current federal 

prisoners with multiple convictions. The revised methodology resulted in only minimal changes in the figures previously reported. 

200 See supra note 167. 
United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)
Appendix A
United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

78 

CIRCUIT

District Number Percent Number Percent Number Percent Number Percent

TOTAL 62,251 100.0 48,647 78.1 13,604 21.9 8,342 13.4

D.C. CIRCUIT 250 0.4 167 66.8 83 33.2 47 18.8

District of Columbia 250 0.4 167 66.8 83 33.2 47 18.8

FIRST CIRCUIT 1,943 3.1 1,253 64.5 690 35.5 495 25.5

Maine 198 0.3 159 80.3 39 19.7 30 15.2

Massachusetts 460 0.7 375 81.5 85 18.5 64 13.9

New Hampshire 174 0.3 155 89.1 19 10.9 15 8.6

Puerto Rico 1,021 1.6 494 48.4 527 51.6 374 36.6

Rhode Island 90 0.1 70 77.8 20 22.2 12 13.3

SECOND CIRCUIT 3,257 5.2 2,359 72.4 898 27.6 465 14.3

Connecticut 302 0.5 219 72.5 83 27.5 52 17.2

New York

 Eastern 756 1.2 550 72.8 206 27.3 73 9.7

 Northern 277 0.4 186 67.2 91 32.9 55 19.9

 Southern 1,292 2.1 912 70.6 380 29.4 199 15.4

 Western 449 0.7 325 72.4 124 27.6 74 16.5

Vermont 181 0.3 167 92.3 14 7.7 12 6.6

THIRD CIRCUIT 2,021 3.3 1,443 71.4 578 28.6 341 16.9

Delaware 69 0.1 49 71.0 20 29.0 10 14.5

New Jersey 657 1.1 530 80.7 127 19.3 72 11.0

Pennsylvania

 Eastern 574 0.9 346 60.3 228 39.7 109 19.0

 Middle 299 0.5 241 80.6 58 19.4 40 13.4

 Western 365 0.6 228 62.5 137 37.5 104 28.5

Virgin Islands 57 0.1 49 86.0 8 14.0 6 10.5

FOURTH CIRCUIT 4,506 7.0 3,179 70.6 1,327 29.4 966 21.4

Maryland 660 1.1 416 63.0 244 37.0 167 25.3

North Carolina

 Eastern 543 0.9 340 62.6 203 37.4 128 23.6

 Middle 420 0.7 339 80.7 81 19.3 72 17.1

 Western 650 1.0 445 68.5 205 31.5 112 17.2

South Carolina 617 1.0 475 77.0 142 23.0 104 16.9

Virginia

 Eastern 814 1.3 502 61.7 312 38.3 275 33.8

 Western 305 0.5 221 72.5 84 27.5 61 20.0

West Virginia

 Northern 296 0.5 260 87.8 36 12.2 30 10.1

 Southern 201 0.3 181 90.1 20 10.0 17 8.5

MANDATORY MINIMUM STATUS FOR ALL OFFENDERS 

IN EACH CIRCUIT AND DISTRICT1

Fiscal Year 2016

Total

No Mandatory 

Minimum

Mandatory 

Minimum

Subject to Mandatory 

Minimum at 

Sentencing

Table A-1. Mandatory Minimum Status for All Offenders 

in Each Circuit and District1

Fiscal Year 2016
 79

Appendix A

CIRCUIT

District Number Percent Number Percent Number Percent Number Percent

FIFTH CIRCUIT 15,297 24.6 12,683 82.9 2,614 17.1 1,313 8.6

Louisiana

 Eastern 328 0.5 213 64.9 115 35.1 84 25.6

 Middle 160 0.3 124 77.5 36 22.5 23 14.4

 Western 207 0.3 157 75.9 50 24.2 33 15.9

Mississippi

 Northern 157 0.3 140 89.2 17 10.8 13 8.3

 Southern 226 0.4 184 81.4 42 18.6 26 11.5

Texas

 Eastern 811 1.3 503 62.0 308 38.0 221 27.3

 Northern 1,329 2.1 962 72.4 367 27.6 259 19.5

 Southern 6,233 10.0 5,230 83.9 1,003 16.1 341 5.5

 Western 5,846 9.4 5,170 88.4 676 11.6 313 5.4

SIXTH CIRCUIT 4,334 7.0 3,075 71.0 1,259 29.0 776 17.9

Kentucky

 Eastern 432 0.7 299 69.2 133 30.8 107 24.8

 Western 285 0.5 164 57.5 121 42.5 59 20.7

Michigan

 Eastern 867 1.4 648 74.7 219 25.3 147 17.0

 Western 316 0.5 255 80.7 61 19.3 44 13.9

Ohio

 Northern 560 0.9 408 72.9 152 27.1 97 17.3

 Southern 472 0.8 378 80.1 94 19.9 56 11.9

Tennessee

 Eastern 740 1.2 434 58.7 306 41.4 161 21.8

 Middle 204 0.3 149 73.0 55 27.0 32 15.7

 Western 458 0.7 340 74.2 118 25.8 73 15.9

SEVENTH CIRCUIT 2,231 3.6 1,604 71.9 627 28.1 448 20.1

Illinois

 Central 258 0.4 144 55.8 114 44.2 77 29.8

 Northern 627 1.0 509 81.2 118 18.8 94 15.0

 Southern 312 0.5 214 68.6 98 31.4 77 24.7

Indiana

 Northern 285 0.5 230 80.7 55 19.3 36 12.6

 Southern 329 0.5 192 58.4 137 41.6 88 26.7

Wisconsin

 Eastern 296 0.5 217 73.3 79 26.7 52 17.6

 Western 124 0.2 98 79.0 26 21.0 24 19.4

EIGHTH CIRCUIT 4,637 7.4 3,203 69.1 1,434 30.9 999 21.5

Arkansas

 Eastern 354 0.6 246 69.5 108 30.5 82 23.2

 Western 252 0.4 200 79.4 52 20.6 38 15.1

Iowa

 Northern 347 0.6 228 65.7 119 34.3 75 21.6

 Southern 347 0.6 263 75.8 84 24.2 62 17.9

Minnesota 481 0.8 301 62.6 180 37.4 137 28.5

Missouri

 Eastern 740 1.2 547 73.9 193 26.1 139 18.8

 Western 804 1.3 498 61.9 306 38.1 209 26.0

Nebraska 532 0.9 347 65.2 185 34.8 144 27.1

North Dakota 356 0.6 215 60.4 141 39.6 54 15.2

South Dakota 424 0.7 358 84.4 66 15.6 59 13.9

Total

No Mandatory 

Minimum

Mandatory 

Minimum

Subject to Mandatory 

Minimum at 

Sentencing
United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

80

CIRCUIT

District Number Percent Number Percent Number Percent Number Percent

NINTH CIRCUIT 10,791 17.3 9,332 86.5 1,459 13.5 898 8.3

Alaska 166 0.3 108 65.1 58 34.9 33 19.9

Arizona 4,090 6.6 4,011 98.1 79 1.9 39 1.0

California

 Central 865 1.4 633 73.2 232 26.8 150 17.3

 Eastern 655 1.1 475 72.5 180 27.5 119 18.2

 Northern 433 0.7 335 77.4 98 22.6 69 15.9

 Southern 2,317 3.7 2,142 92.5 175 7.6 95 4.1

Guam 65 0.1 62 95.4 3 4.6 2 3.1

Hawaii 138 0.2 75 54.4 63 45.7 18 13.0

Idaho 254 0.4 201 79.1 53 20.9 31 12.2

Montana 310 0.5 216 69.7 94 30.3 56 18.1

Nevada 391 0.6 293 74.9 98 25.1 63 16.1

Northern Mariana Islands 20 0.0 15 75.0 5 25.0 4 20.0

Oregon 358 0.6 249 69.6 109 30.5 64 17.9

Washington

 Eastern 298 0.5 204 68.5 94 31.5 56 18.8

 Western 431 0.7 313 72.6 118 27.4 99 23.0

TENTH CIRCUIT 7,319 11.8 6,619 90.4 700 9.6 461 6.3

Colorado 464 3.0 387 83.4 77 16.6 46 9.9

Kansas 459 0.7 321 69.9 138 30.1 83 18.1

New Mexico 4,954 8.0 4,782 96.5 172 3.5 108 2.2

Oklahoma

 Eastern 100 0.2 75 75.0 25 25.0 15 15.0

 Northern 210 0.3 161 76.7 49 23.3 32 15.2

 Western 295 0.5 242 82.0 53 18.0 44 14.9

Utah 623 1.0 509 81.7 114 18.3 77 12.4

Wyoming 214 0.3 142 66.4 72 33.6 56 26.2

ELEVENTH CIRCUIT 5,665 9.1 3,730 65.8 1,935 34.2 1,133 20.0

Alabama

 Middle 151 0.2 104 68.9 47 31.1 32 21.2

 Northern 333 0.5 233 70.0 100 30.0 56 16.8

 Southern 313 0.5 235 75.1 78 24.9 41 13.1

Florida

 Middle 1,393 2.2 757 54.3 636 45.7 276 19.8

 Northern 241 0.4 135 56.0 106 44.0 65 27.0

 Southern 2,130 3.4 1,397 65.6 733 34.4 487 22.9

Georgia

 Middle 303 0.5 239 78.9 64 21.1 45 14.9

 Northern 523 0.8 388 74.2 135 25.8 100 19.1

 Southern 278 0.5 242 87.1 36 13.0 31 11.2

1

 Of the 67,742 cases sentenced in fiscal year 2016, the Commission received complete guideline information in 61,958. The Commission did not receive 

complete guideline information for another 287 cases in which the only statute of conviction was 18 U.S.C. § 924(c) and 111 cases in which an offender was 

sentenced under 18 U.S.C. § 1028A and the guidelines were not applied, but these cases are included in the analysis. Of the remaining 62,356 cases, 105 were 

excluded due to missing statutory information. 

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16. 

Total

No Mandatory 

Minimum

Mandatory 

Minimum

Subject to Mandatory 

Minimum at 

Sentencing
Appendix B
82 

United States Sentencing Commission

Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System (2017)

Figure B-1. Percentage of Offenders Convicted of an Offense Carrying a 

Mandatory Minimum Penalty By District: Immigration Offenders Excluded

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Percentage of Offenders: <10% 10-19% 20-29% 30-39% 40-49% >50%
 83

Appendix B