Mandatory Minimum Sentencing of Federal Drug Offenses
Released: 2018-01-11T00:00:00

Introduction

This is a brief discussion of the law associated with the mandatory minimum sentencing provisions of federal controlled substance (drug) laws and drug- related federal firearms and recidivist statutes . The se mandatory minimums, however, are not as mandato ry as they might appear. The government may elect not to prosecute the underlying offenses. Federal courts may disregard otherwise applicable mandatory sentencing requirements at the behest of the government. The federal courts may also bypass some of them for the benefit of certain low-level, nonviolent offenders with virtually spotless criminal records u nder the so-call ed " safety valve " provision . Finally, in cases where the mandatory minimums would usually apply, the P resident may pardon offenders or commute their sentences before the minimum term of imprisonment has been served. Be that as it may, sentencing in drug cases , particular ly mandatory minimum drug sentencing , has contributed to a n explosion in the federal prison population and attendant costs . Thu s, t he federal inmate population at the end of 1976 was 23,566, and at the end of 1986 it was 36,042. On January 4, 2018 , the federal inmate population was 18 3 , 493 . As of September 30, 2016, 49.1% of federal inmates were drug offenders and 72.3% of those were convicted of an offense carrying a mandatory minimum. In 1976, federal prisons cost $183.914 million; in 1986, $550.014 million; and in 2016, $6.751 billion (est.).

Background

Federal mandatory minimum sentencing statutes have existed since the dawn of the Republic. When the first Congress assembled, it enacted several mandatory minimums, each of them a capital offense. The drug mandatory minimums are of more recent origins. The first arrived in 1914, when Congress established a mandatory minimum of five years for the manufacture of opium for smoking purposes. Shortly after mid-century, Congress began adding to the number of drug-related mandatory minimums. Prior to enactment of the Controlled Substances Act and the Controlled Substances Import and Export Act in 1970, federal law included mandatory minimums for violations of the narcotics or marijuana tax regimes; smuggling narcotics or marijuana; distributing heroin to a child; possession of narcotics aboard a U.S. vessel; and violations of federal drug laws using communications facilities. The 1970s legislation eliminated them all. Left in their place were only the mandatory minimums in the continuing criminal enterprise (drug kingpin) section.

Then, in 1984, Congress enacted the Sentencing Reform Act that created the United States Sentencing Commission and authorized it to promulgate then binding sentencing guidelines. In many instances, the resulting Guidelines operated essentially, but briefly, to establish a mandatory minimum term of imprisonment where none had existed before. Soon thereafter, Congress began to repopulate federal drug laws with mandatory minimums, the bulk of which Congress inserted using the Anti-Drug Abuse Act of 1986. The 1986 legislation, however, included substantial assistance provisions which allow the courts to disregard the mandatory minimums in the case of cooperative defendants. In addition, shortly thereafter, Congress instructed the Sentencing Commission to provide it with a detailed report on federal mandatory minimum statutes.

The commission's 1991 report observed that from 1984 to 1990 four drug-related statutes accounted for roughly 94% of the mandatory minimum offenses regularly prosecuted. The commission's initial report was quickly followed by a Department of Justice study that concluded that a substantial number of those sentenced under federal mandatory minimums were nonviolent, first-time, low-level drug offenders. Congress responded with the safety valve provisions of 18 U.S.C. § 3553(f), under which the court may disregard various drug mandatory minimums and sentence an offender within the applicable sentencing guideline range as long as the offender was a low-level, nonviolent participant with no prior criminal record who has cooperated fully with the government.

The hate crime legislation enacted in 2009 directed the U.S. Sentencing Commission to submit a second report on federal mandatory minimums. The commission presented its second report in October 2011. A number of things had changed between the first and second Commission reports. Sentencing under the Guidelines had been in place for only a relatively short period of time when the first report was written. By the time of the second report, the number of defendants sentenced by federal courts had grown to almost three times the number sentenced under the Guidelines when the commission wrote its first report. The judicial landscape has changed as well. When the commission issued its first report, the Guidelines were considered binding upon sentencing judges. After the Supreme Court's Booker decision and its progeny, the Guidelines became but the first step in the sentencing process. In addition, the Fair Sentencing Act, passed in 2010, reduced the powder cocaine-crack cocaine ratio from 100 to 10 to roughly 18 to 1.

The second Commission report recommended that Congress consider expanding eligibility for the safety valve, and adjusting the scope, severity, and the prior offenses that trigger the recidivist provisions under firearm statute and the two principal drug statutes, (21 U.S.C. §§ 841 and 960).

In October 2017, the commission issued a third report devoted exclusively to mandatory minimum penalties for drug offenses, in which it made no recommendations. Instead, the report provided an extensive statistical analysis, summarized in ten findings:

1. Drug mandatory minimum penalties continued to result in long sentences in the federal system.

2. Mandatory minimum penalties continued to have a significant impact on the size and composition of the federal prison population.

3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentages of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.

4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, the offenses of those who were tended to be more serious.

5. Drug mandatory minimum penalties applied more broadly than Congress may have anticipated.

6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties, and results in significant reduced sentences when applied.

7. Additionally, drug mandatory minimum penalties appear to provide criminal defendants with a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provisions of USSG §5K1.1.

8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f), nor the substantial assistance provision of 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.

9. There were significant demographic shifts in the data relating to mandatory minimum penalties.

10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.

Although each house devoted considerable attention to mandatory minimum sentencing and associated issues, the 114th Congress ended without consensus. Several proposals introduced in the 115th Congress address some of the same issues.

Mandatory Minimums for Drug Crimes

Table 1 below describes the mandatory minimum sentencing provisions for various drug and drug-related offenses.

Features of Mandatory Minimum Drug Offenses

Domestic Manufacture or Distribution (21 U.S.C. § 841(a))

Section 841(a) outlaws knowingly or intentionally manufacturing, distributing, dispensing, or possessing with the intent to distribute or dispense controlled substances except as otherwise authorized by the Controlled Substances Act.

Knowingly or Intentionally

The government may establish the knowledge element of Section 841(a) in either of two ways. First, the "knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the [controlled substance] schedules." Second, "[t]he knowledge requirement may also be met by showing that the defendant knew the identity of the substance he possessed. Take, for example, a defendant who knows that he is distributing heroin but does not know that heroin is listed on the schedules." As long as the government proves the defendant knows he was dealing in heroin, it need not prove that the defendant knew the particular type or quantity of the controlled substance he intended to distribute.

When a defendant claims no guilty knowledge, the circumstances may warrant a willful blindness instruction to the jury. The willful blindness instruction, sometimes called the deliberate ignorance or "ostrich head in the sand" instruction, is warranted if "(1) the defendant claims lack of knowledge; (2) the evidence would support an inference that the defendant consciously engaged in a course of deliberate ignorance; and (3) the proposed instruction, as a whole, could not lead the jury to conclude that an inference of knowledge is mandatory."

Manufacture, Distribute, Dispense, or Possess

Manufacture : For purposes of Section 841(a), "'manufacture' means the production … or processing of a drug, and the term 'production' includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance."

Distribute or Dispense : The Controlled Substances Act defines the term "distribute" broadly. The term encompasses any transfer of a controlled substance other than dispensing it. It reaches both sales and transfers without compensation. To "dispense" is "to deliver a controlled substance to an ultimate user …by, or pursuant to the lawful order of, a practitioner…" The Controlled Substances Act outlaws practitioner's proscribing controlled substances for other than legitimate medical purposes.

Possession with Intent to Distribute or Dispense : The government may satisfy the possession element with evidence of either actual or constructive possession. "Actual possession is the knowing, direct, and physical control over a thing." "Constructive possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object either directly or through others."

The escalating mandatory minimums that apply to offenders with "a prior conviction for a felony drug offense" extend to those offenses classified as misdemeanors under state law, but punishable by imprisonment for more than a year. They also apply even if the underlying state conviction has been expunged. On the other hand, there is apparently at least a division among the circuits over whether the government's failure to comply with the procedure for establishing a prior conviction, and therefore to alert the defendant to the prospect of an enhanced mandatory minimum, precludes a sentencing court from taking prior conviction into account.

Sentencing

Sentencing for violations of Section 841(a) is governed by the nature and volume of the substance involved, the defendant's criminal record, and injuries attributable to the offense. The most severe penalties are reserved for high-volume trafficking of eight substances assigned to Controlled Substance Schedules I and II.

The eight substances are heroin, powder cocaine, cocaine base (crack), PCP, LSD, fentanyl, methamphetamine, and marijuana. Criminal penalties related to each substance provide one set of mandatory minimums for trafficking in a very substantial amount listed in Section 841(b)(1)(A), and a second, lower set of mandatory minimums for trafficking in a lower but still substantial amount listed in Section 841(a)(1)(B). The first set (841(b)(1)(A) level) features the following thresholds:

heroin - 1 kilogram; powder cocaine - 5 kilograms; crack - 280 grams; PCP - 100 grams; LSD - 10 grams; fentanyl - 400 grams; methamphetamine - 50 grams; marijuana - 1,000 kilograms.

The second set (841(b)(1)(B) level) has thresholds that are one-tenth of those of the higher set:

heroin - 100 grams; powder cocaine - 500 grams; crack - 28 grams; PCP - 100 grams; LSD - 1 gram; fentanyl - 40 grams; methamphetamine - 5 grams; marijuana - 100 kilograms.

A Section 841(a) violation involving one of the eight drugs at the higher 841(b)(1)(A) level is punishable by imprisonment for:

not less than 10 years; not less than 20 years if the offense results in death or serious bodily injury or if the offender has a prior felony drug conviction; and a mandatory term of life imprisonment if the offender has a prior felony drug conviction and the offense resulted in death or serious bodily injury or if the offender has two or more prior felony drug convictions.

A Section 841(a) violation involving one of the eight drugs at the lower 841(b)(1)(B) level is punishable by imprisonment for:

not less than 5 years; not less than 10 years, if the offender has a prior felony drug conviction; not less than 20 years if the offense results in death or serious bodily injury; and a mandatory term of life imprisonment if the offender has a prior felony drug conviction and the offense resulted in death or serious bodily injury.

A Section 841(a) violation involving one of the eight drugs in lesser amounts, or some other Schedule I or II drug, or a date rape drug is punishable by imprisonment for:

not less than 20 years if death or serious bodily injury results; and life if the offender has a prior felony drug conviction and death or serious bodily injury results.

The felony drug convictions that trigger the sentencing enhancement include federal, state, and foreign convictions. The "serious bodily injury" enhancement is confined to bodily injuries which involve "(A) a substantial risk of death; (B) protracted and obvious disfigurement; or (C) protracted loss or impairment of the function of a bodily member, organ, or mental faculty." And, t he "if death results" enhancement is available only if the drugs provided by the defendant were the "but-for" cause of death ; it is not available if the drugs supplied were merely a contributing cause. The same "but for" standard presumably applies with equal force to the "serious bodily injury" enhancement .

Attempt, Conspiracy, and Aiding and Abetting (21 U.S.C. § 846; 18 U.S.C. § 2)

The mandatory minimums of Section 841 apply with equal force to those who attempt to possess with intent to distribute; who conspire to do so; or who aid and abet a violation of Section 841 by others.

Attempt

To prove an attempt to violate Section 841(a) "the government must establish beyond a reasonable doubt that the defendant (a) had the intent to commit the object crime and (b) engaged in conduct amounting to a substantial step towards its commission. For a defendant to have taken a substantial step, he must have engaged in more than mere preparation, but may have stopped short of the last act necessary for the actual commission of the substantive crime."

Conspiracy

Conspiracy is an agreement to commit a crime. "To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there was a conspiracy, i.e ., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy." The existence of the conspiracy need not be shown by written agreement or any other form of direct evidence, but may be inferred from the circumstances. Moreover, each of the conspirators need not be fully aware of the roles or activities of all of their cohorts. Each conspirator, however, is punishable for the foreseeable offenses committed in furtherance of the common scheme.

Although it technically demonstrates an agreement to distribute a controlled substance, proof of a small, one-time sale of a controlled substance is ordinarily not considered sufficient for a conspiracy conviction. "[T]he factors that demonstrate a defendant was part of a conspiracy rather than in a mere buyer/seller relationship with that conspiracy include: (1) the length of affiliation between the defendant and the conspiracy; (2) whether there is an established method of payment; (3) the extent to which transactions are standardized; (4) whether there is a demonstrated level of mutual trust; (5) whether the transactions involved large amounts of drugs; and (6) whether the defendant purchased his drugs on credit."

Aiding and Abetting

Accomplices who aid and abet the crime of another receive the same punishment as the offender they assist. To prove, aiding and abetting, the government must show that the defendant knowingly embraced and assisted in the commission of the crime.

Special Circumstances

Trafficking offenses that ordinarily do not trigger mandatory minimum sentences may do so if they involve special circumstances. Thus, trafficking to pregnant women, children, or in proximity of a school, playground, or other prohibited location, or using a child to manufacture or traffic, are punishable with a one-year mandatory minimum term of imprisonment and in most instances a three-year mandatory minimum for repeat offenders.

Import/Export Offenses

Sections 960 and 963 of the Controlled Substances Import and Export Act, and by cross- reference Section 70506 of the Maritime Drug Law Enforcement Act (MDLEA), largely track the penalties found in Section 841(b) of the Controlled Substances Act, including the mandatory minimum sentences of imprisonment.

Section 960

Section 960 sets the penalties for three categories of offenses: (1) importing or exporting a controlled substance in violation of 21 U.S.C. § 825 (labeling and packaging), § 952 (importing controlled substances), § 953 (exporting controlled substances), or § 967 (smuggling controlled substances); (2) possession of a controlled substance aboard a vessel or aircraft in violation of 21 U.S.C. § 955; and (3) possession with intent to distribute in violation of 21 U.S.C. § 959.

Of these, violations of Sections 952 and 959 appear to be the most commonly prosecuted. "To sustain a conviction for the importation of a controlled substance[under Section 952], the government must prove: (1) the defendant played a role in bringing a quantity of a controlled substance into the United States; (2) the defendant knew the substance was controlled; and (3) the defendant knew the substance would enter the United States." The government, however, need not prove that the defendant knew which controlled substance was being imported or its quantity.

Section 959 proscribes two offenses: manufacturing or distributing a controlled substance for import purposes and possession aboard an aircraft by a U.S. citizen or aboard a U.S. aircraft. The section specifically states that it governs offenses committed outside the territory of the United States.

Attempt, Conspiracy, and Aiding and Abetting

Section 963 outlaws attempts and conspiracies to violate the prohibitions covered by Section 960, and calls for the same penalties, including mandatory minimums, as apply to the underlying substantive offenses.

Maritime Drug Law Enforcement Act (MDLEA) (46 U.S.C. §§ 70503, 70506)

MDLEA outlaws possession of a controlled substance aboard a vessel subject to U.S. jurisdiction or attempting or conspiring to do so. Here too, violations carry the same penalties, including mandatory minimums, as the underlying substantive offenses.

The term "vessel subject to the jurisdiction of the United States" includes vessels within U.S. territorial or customs waters, and vessels of foreign registration or vessels located in foreign territorial waters when the foreign nation has consented to application of U.S. law, as well as vessels for which no claim of registration or false claim of registration is presented. Most of the lower federal appellate courts to consider the issue have held that the government need not establish any other nexus to the United States. The type and volume of controlled substances ordinarily involved in MDLEA cases usually trigger the more severe mandatory minimum sentences.

Narco-Terrorism (21 U.S.C. § 960a)

Section 960a doubles the otherwise applicable mandatory minimum sentence for drug trafficking (including an attempt or conspiracy to traffic) when the offense is committed in order to fund a terrorist activity or terrorist organization. The merge of drug trafficking and terrorism offenses in Section 960a does not preclude conviction of the defendant for drug trafficking and terrorism offenses as well. Here, too, the controlled substances involved ordinarily carry their own mandatory minimum term of imprisonment.

Drug Kingpin (21 U.S.C. § 848)

Conviction of a Continuing Criminal Enterprise (CCE or Drug Kingpin) offense results in imposition of a 20-year mandatory minimum; the mandatory minimum for repeat offenders is 30 years. Drug kingpins of enormous enterprises, however, face a mandatory sentence of life imprisonment.

To secure a conviction, the government must establish, "1) a felony violation of the federal narcotics laws; 2) as part of a continuing series of three or more related felony violations of federal narcotics laws; 3) in concert with five or more other persons; 4) for whom [the defendant] is an organizer, manager or supervisor; [and] 5) from which [the defendant] derives substantial income or resources."

The homicide mandatory minimum found in the drug kingpin statute sets a 20-year minimum term of imprisonment for killings associated with a kingpin offense or for killings of law enforcement officers associated with certain other controlled substance offenses. Neither prohibition requires the defendant to have been manufacturing or distributing controlled substances at the time of the killing.

Drug-Related Mandatory Minimums

Firearm Possession in Furtherance (18 U.S.C. § 924(c))

Mandatory minimums are found in two federal firearms statutes. One, the Armed Career Criminal Act, deals exclusively with recidivists. The other, Section 924(c), attaches one of several mandatory minimum terms of imprisonment whenever a firearm is used or possessed during and in relation to a federal crime of violence or drug trafficking.

Section 924(c), in its current form, establishes one of several different minimum sentences when a firearm is used or possessed in furtherance of another federal crime of violence or drug trafficking. The mandatory minimums must be imposed in addition to any sentence imposed for the underlying crime of violence or drug trafficking and vary depending upon the circumstances:

imprisonment for not less than five years, unless one of the higher mandatory minimums below applies; imprisonment for not less than seven years if a firearm is brandished; imprisonment for not less than 10 years if a firearm is discharged; imprisonment for not less than 10 years if a firearm is a short-barreled rifle or shotgun or is a semi-automatic weapon; imprisonment for not less than 15 years if the offense involves the armor piercing ammunition; imprisonment for not less than 25 years if the offender has a prior conviction for violation of Section 924(c); imprisonment for not less than 30 years if the firearm is a machine gun or destructive device or is equipped with a silencer; and imprisonment for life if the offender has a prior conviction for violation of Section 924(c) and if the firearm is a machine gun or destructive device or is equipped with a silencer.

Features

Firearm

Section 924(c) outlaws possession of a firearm in furtherance of, or use of a firearm during and in relation to, a predicate offense. A "firearm" for purposes of Section 924(c) includes not only guns ("weapons ... which will or [are] designed to or may readily be converted to expel a projectile by the action of an explosive"), but silencers and explosives as well. It includes firearms that are not loaded or that are broken. It does not include toys or imitations. Nevertheless, the government need not produce the gun itself at trial. It need do no more than "present sufficient testimony, including the testimony of lay witnesses, in order to prove beyond a reasonable doubt that a defendant used, possessed or carried a 'firearm' as that term is defined for purposes of §924(c)." Yet conviction must rest on some evidence of the presence of a firearm.

Predicate Offenses

Section 924(c) is triggered when a firearm is used or possessed in furtherance of a predicate offense. The predicate offenses are crimes of violence and certain drug trafficking crimes. The drug trafficking predicates include any felony violation of the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act. A defendant may be convicted under Section 924(c), however, even though not convicted or even prosecuted for the predicate offense.

Possession in Furtherance

Section 924(c) has two alternative firearm-nexus elements: (a) possession in furtherance and (b) carrying or use. The possession-in-furtherance version of the offense requires that the defendant "(1) committed a drug trafficking crime; (2) knowingly possessed a firearm; and (3) possessed the firearm in furtherance of the drug trafficking crime [or other predicate offense]." The "possession" component may take the form of either actual or constructive possession. "Constructive possession exists when a person does not have possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others."

The "in furtherance" component compels the government to show some nexus between possession of a firearm and a predicate offense – that is, to show that the firearm furthered, advanced, moved forward, promoted, or in some way facilitated the predicate offense. This requires more than proof of the presence of a firearm in the same location as the predicate offense. Most circuits have identified specific factors that commonly allow a court to distinguish guilty possession from innocent "possession at the scene," particularly in a drug case, they include "(1) type of criminal activity that is being conducted; (2) accessibility of the firearm; (3) the type of firearm; (4) whether the firearm is stolen; (5) the status of the possession (legitimate or illegal); (6) whether the firearm is loaded; (7) the time and circumstances under which the firearm is found; and (8) the proximity to the drugs or drug profits."

Although the Supreme Court has determined that acquiring a firearm in an illegal drug transaction does not constitute "use" in violation of Section 924(c), several of the circuits have found that such acquisition may constitute "possession in furtherance."

Use or Carry

The "use" outlawed in the use or carriage branch of Section 924(c) requires that a firearm be actively employed "during and in relation to" a predicate offense – that is, either a crime of violence or a drug trafficking offense. A defendant "uses" a firearm during or in relation to a drug trafficking offense when he uses it to acquire drugs in a drug deal; when he uses it as collateral in a drug deal; or when he sells both drugs and firearms; but not when he accepts a firearm in exchange for drugs in a drug deal. The "carry[ing]" that the section outlaws encompasses instances when a firearm is carried on the defendant's person as well as when it is simply readily accessible in a vehicle during and in relation to a predicate offense.

A firearm is used or carried "during and in relation" to a predicate offense when it has "some purpose or effect with respect" to the predicate offense; "its presence or involvement cannot be the result of accident or coincidence." The government must show that the availability of the firearm played an integral role in the predicate offense. It need not show that the firearm was used "in furtherance" of the predicate offense.

Discharge and Brandish

The basic five-year mandatory minimum penalty for using, carrying, or possessing a firearm in the course of a predicate offense becomes a seven-year mandatory minimum if a firearm was brandished during the course of the offense and becomes a 10-year mandatory minimum if a firearm was discharged during the course of the offense. The discharge provision applies even if the firearm was discharged inadvertently. Whether a firearm is discharged or brandished is a question that after Alleyne v. United States must be presented to the jury and proven beyond a reasonable doubt. A firearm is brandished for these purposes when (1) it is displayed or its presence made known (2) in order to intimidate another. Intimidation is a necessary feature of brandishing, but it is no less present when the fear is induced by using a gun as a club rather than merely displaying it.

Short Barrels, Semiautomatics, Machine Guns, and Bombs

For some time, Section 924(c) consisted of a single long paragraph with brandishing, discharging, short barrels, semiautomatics, machine guns, and bombs all in the same paragraph. When Congress added the "possession in furtherance" language, it parsed the section. Now, the general, brandish, and discharge mandatory penalties provisions appear in one part. The provisions for offenses involving a short-barreled rifle or shotgun, a semiautomatic assault weapon, a silencer, a machine gun, or explosives appear in a second part. The provisions for second and consequent convictions appear in a third part.

The circuits are apparently divided over the question of whether the government must show that the defendant knew that the firearm at issue was of a particular type ( i.e ., short-barreled rifle or shotgun, machine gun, or bomb).

Prior to the division, the Supreme Court had identified as an element of a separate offense (rather than a sentencing factor) the question of whether a machine gun was the firearm used during and in relation to a predicate offense. The use of a short-barreled rifle, semiautomatic assault weapon, silencer, machine gun, or bomb is not a sentencing factor, but an element of a separate offense to be charged and proved to the jury beyond a reasonable doubt. The question of whether a second or subsequent conviction has occurred, however, remains a sentencing factor.

Aiding, Abetting, and Conspiracy

As a general rule, anyone who commands, counsels, aids, or abets the commission of a federal crime by another is punishable as though he had committed the crime himself. "In order to aid and abet another to commit a crime it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."

The Supreme Court has said in Rosemon d v. United States that to aid or abet a violation of Section 924(c), the assistance may be shown to have advanced either the predicate offense or the firearm use. However, the defendant must be shown to have intended his efforts contribute to the success of the Section 924(c) violation – that is, commission of a predicate offense while armed. Thus, the defendant must be shown to have known before the commission of the predicate offense that his confederate was armed.

In similar manner, conspirators are liable for any foreseeable crimes committed by any of their co-conspirators in furtherance of the conspiracy. The rule applies when a defendant's co-conspirator has committed a violation of Section 924(c).

Sentencing Considerations

The penalties under Section 924(c) were once flat sentences. For example, the penalty for use of a firearm during the course of a predicate offense was a five-year term of imprisonment. Now, they are simply mandatory minimums, each carrying an unspecified maximum term of life imprisonment.

A court may not avoid the mandatory minimums called for in Section 924(c)(1) by imposing a probationary sentence, or by ordering that a Section 924(c)(1) minimum mandatory sentence be served concurrently with some other sentence. A court may, however, take Section 924(c)'s mandatory minimum into account when calculating the appropriate sentence for the underlying predicate offense.

If a criminal episode involves more than one predicate offense, more than one violation of Section 924(c) may be punished. Moreover, the second or subsequent convictions which trigger enhanced mandatory minimum penalties need not be the product of separate trials, but may be part of the same verdict. Thus, a defendant charged and convicted in a single trial on several counts may be subject to multiple, consecutive, mandatory minimum terms of imprisonment.

A number of defendants have sought refuge in the clause of Section 924(c), which introduces the section's mandatory minimum penalties with an exception: "[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law." Defendants at one time argued that the mandatory minimums of Section 924(c) become inapplicable when the defendant was subject to a higher mandatory minimum under the predicate drug trafficking offense under the Armed Career Criminal Act (18 U.S.C. § 924(e)), or some other provision of law. The Supreme Court rejected the argument in Abbott v. United States . Thus, the clause means that the standard five-year minimum applies except in cases where the facts trigger one of Section 924(c)'s higher minimums.

Armed Career Criminal Act (18 U.S.C. § 924(e))

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years.... 18 U.S.C. § 924(e)(1).

Section 922(g) outlaws the possession of firearms by felons, fugitives, and various other categories of individuals. The Armed Career Criminal Act (ACCA), quoted above, visits a 15-year mandatory minimum term of imprisonment upon anyone who violates Section 922(g), having been convicted three times previously of a violent felony or serious drug offense. As the cases below suggest, the section most often ensnarls felons found in possession of a firearm who have three qualifying prior convictions. More often than not, the prior convictions are for violations of state law.

Features

Section 924(e) begins with unlawful possession of a firearm ("a person who violates section 922(g)"). The threshold possession offense need not itself involve a drug or violent crime. Section 924(e)'s 15-year mandatory minimum term of imprisonment instead flows as a consequence of the offender's prior criminal record ("three prior convictions ... referred to in section 922(g)(1) ... for a violent felony or a serious drug offense"). Not all violent felonies or serious drug offenses count. Certain convictions, principally those which have been overturned, pardoned, or otherwise set aside as a matter of state law, are exempt by definition.

Moreover, qualifying violent felonies or serious drug offenses must have been committed on different occasions. "[T]o trigger a sentence enhancement under the ACCA, a defendant's prior felony convictions must involve separate criminal episodes. However, offenses are considered distinct criminal episodes if they occurred on occasions different from one another," one court has observed. And "two offenses are committed on occasions different from one another if it is possible to discern the point at which the first offense is completed and the second offense begins." Thus, separate drug deals on separate days will constitute offenses committed on different occasions though they involve the same parties and location. The fact that two crimes occurred on different occasions, however, must be clear on the judicial record; recourse to police records will not do.

There is "no authority to ignore [an otherwise qualified] conviction because of its age or its underlying circumstances. Such considerations are irrelevant ... under the Act." Moreover, application of Section 924(e) provides no opportunity to challenge the validity of the underlying predicate offenses.

The section defines serious drug offenses as those violations of state or federal drug law punishable by imprisonment for 10 years or more. Conviction under a statute which carries a 10-year maximum for repeat offenders qualifies, even though the maximum term for first-time offenders is five years. It is the maximum permissible term which determines qualification, even when discretionary sentencing guidelines call for a term of less than 10 years, or when the defendant was in fact sentenced to a lesser term of imprisonment. To qualify as a predicate drug offense, the crime must have been at least a 10-year felony at the time of conviction for the predicate offense.

The term "serious drug offense" includes attempts or conspiracies to commit a serious drug offense, as long as the attempt or conspiracy is punishable by imprisonment for 10 years or more. By the same token, there is no need to prove that the defendant knew of the illicit nature of the controlled substance involved in his predicate serious drug offense if the serious drug offense satisfied the 10-year requirement and, in the case of state law predicate, involved the manufacture, distribution, or possession with intent to distribute a controlled substance.

The Supreme Court in Johnso n v. United States found unconstitutionally vague Section 924(e)'s violent felony residual clause ("the term 'violent felony' means any crime punishable by imprisonment for a term exceeding one year … that … involves conduct that presents a serious potential risk of physical injury to another."). The decision raises no question as to the validity of the mandatory minimum sentences imposed under the serious drug offense prong of Section 924(e).

Safety Valve

Low-level drug offenders can escape some of the mandatory minimum sentences for which they qualify under the safety valve found in 18 U.S.C. § 3553(f). Congress created the safety valve after it became concerned that the mandatory minimum sentencing provisions could have resulted in equally severe penalties for both the more and the less culpable offenders. The safety valve is available to qualified offenders convicted of violations of the possession-with-intent, simple possession, attempt, or conspiracy provisions of the Controlled Substances or Controlled Substances Import and Export Acts.

The safety valve is not available to avoid the mandatory minimum sentences that attend other offenses, even those closely related to the covered offenses. Section 860 (21 U.S.C. § 860), which outlaws violations of Section 841 near schools, playgrounds, or public housing facilities and sets the penalties for violation at twice what they would be under Section 841, is not covered. Those charged with a violation of Section 860 are not eligible for relief under the safety valve provisions. In addition, safety valve relief is not available to those convicted under the Maritime Drug Law Enforcement Act, even though the act proscribes conduct closely related to the smuggling and trafficking activities punished under Sections 960 and 963 (21 U.S.C. §§ 960, 963).

For the convictions to which the safety valve does apply, the defendant must convince the sentencing court by a preponderance of the evidence that he satisfies each of the safety valve's five requirements. He may not have more than one criminal history point. He may not have used violence or a dangerous weapon in connection with the offense. He may not have been an organizer or leader of the drug enterprise. He must have provided the government with all the information and evidence at his disposal. Finally, the offense may not have resulted in serious injury or death.

One Criminal History Point

More than one "criminal history point" is safety valve disqualifying. The criminal history point qualification refers to the defendant's criminal record. The Sentencing Guidelines assign criminal history points based on a defendant's past criminal record. Two or more points are assigned for every prior sentence of imprisonment or juvenile confinement of 60 days or more, or for offenses committed while the defendant was in prison, was an escaped prisoner, or was on probation, parole, or supervised release. A single point is assigned for every other federal or state prior sentence of conviction, subject to certain exceptions.

Foreign sentences of imprisonment are not counted; nor are sentences imposed by tribal courts; nor summary court martial sentences; nor sentences imposed for expunged, reversed, vacated, or invalidated convictions; nor sentences for certain petty offenses or minor misdemeanors. The Sentencing Guidelines list two classes of these minor misdemeanor or petty offenses that are not counted for criminal history purposes and thus for safety valve purposes. One class consists of eight types of minor offenses, like hunting and fishing violations or juvenile truancy, that are not counted regardless of the sentence imposed. The other class consists of arguably more serious offenses, such as gambling or prostitution, that are excused only if the offender was sentenced no more severely than to imprisonment for 30 days or less or to probation for less than a year. Both classes also include similar offenses to those listed "by whatever name they are known."

Only the Nonviolent

The safety valve has two disqualifications designed to reserve its benefits to the nonviolent. One involves instances in which the offense resulted in death or serious bodily injury. The other involves the use of violence, threats, or the possession of weapons. The weapon or threat of violence disqualification turns upon the defendant's conduct or the conduct of those he "aided or abetted, counseled, commanded, induced, procured, or willfully caused." It is not triggered by the conduct of a co-conspirator unless the defendant "aided, abetted, [or] counsel ..." the co-conspirator's violence or possession. Disqualifying firearm possession may be either actual or constructive. Constructive possession is the dominion or control over a firearm or the place where one is located. Disqualification requires that the threat of violence or possession of a firearm be "in connection with the offense," and may include threats against witnesses. In many instances, possession of a firearm in a location where drugs are stored or transported, or where transactions occur, will be enough to support an inference of possession in connection with the drug offense of conviction.

The Sentencing Guidelines define "serious bodily injury" for purposes of Section 3553(f)(3) as an "injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation." On its face, the definition would include serious bodily injuries, such as one that requires hospitalization, suffered by the defendant as a result of the offense. Unlike the gun and violence disqualification in Section 3553(f)(2), the serious injury disqualification in Section 3553(f)(3) may be triggered by the conduct of a co-conspirator.

Only Single or Low Level Offenders

The Guidelines disqualify anyone who acted as a manager of the criminal enterprise or who receives a Guideline level increase for his aggravated role in the offense. Thus, by implication, it does not disqualify a defendant to have received a Guideline decrease based on his minimal or minor participation in a group offense or a defendant who acted alone.

Tell All

The most heavily litigated safety valve criterion requires full disclosure on the part of the defendant. The requirement extends not only to information concerning the crimes of conviction, but also to information concerning other crimes that "were part of the same course of conduct or of a common scheme or plan," including uncharged related conduct.

Neither Section 3553(f) nor the Sentencing Guidelines explains what form the defendant's full disclosure must take. At least one court has held that under rare circumstances disclosure through the defendant's testimony at trial may suffice. The stipulation of facts in a plea bargain without more ordinarily will not qualify. Most often, the defendant provides the information during an interview with prosecutors or by a proffer. The defendant must disclose the information to the prosecutor, however. Disclosure to the probation officer during preparation of the presentence report is not sufficient. Moreover, a defendant does not necessarily qualify for relief merely because he has proffered a statement and invited the prosecution to identify any additional information it seeks; for "the government is under no obligation to solicit information from a defendant." A defendant's proffer must be "truthful." On the other hand, past lies do not render a defendant ineligible for relief under the truthful disclosure criterion of the safety valve, although they may undermine his credibility.

Substantial Assistance

Upon 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. Such sentence shall 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.

The substantial assistance provision was enacted with little fanfare in the twilight of the 99th Congress as part of the wide-ranging Anti-Drug Abuse Act of 1986, legislation that established or increased a number of mandatory minimum sentencing provisions. The section passed between the date authorizing the Sentencing Guidelines and the date the Guidelines became effective. Rather than replicate the language of Section 3553(e), the Guidelines contain an overlapping section which authorizes a sentencing court to depart from the minimum sentence called for by the Guidelines. A motion asking the court to sentence a defendant beneath the statutory mandatory minimum must be filed under Section 3553(e); a motion under Section 5K1.1 of the Guidelines alone is insufficient. The government has at least a year to file its motion for substantial assistance.

Upon the Motion of the Government

As a general rule, a defendant is entitled to a sentence below an otherwise applicable statutory minimum under the provisions of § 3553(e) only if the government agrees. The courts have acknowledged that due process, equal protection, or other constitutional guarantees may provide a narrow exception. For instance, a defendant is entitled to relief if the government's refusal constitutes a breach of its plea agreement. A defendant is also "entitled to relief if the prosecutor's refusal to move was not rationally related to any legitimate Government end." Some courts have suggested that a defendant is entitled to relief if the prosecution refuses to move under circumstances that "shock the conscience of the court," or that demonstrate bad faith, or for reasons unrelated to substantial assistance.

The court is under no obligation to grant the government's substantial assistance motion and the defendant is not entitled to be heard on the issue.

To Reflect a Defendant's Substantial Assistance

Any sentence imposed below the statutory minimum by virtue of Section 3553(e) must be based on the extent of the defendant's assistance; it may not reflect considerations unrelated to such assistance. It has been suggested that a court may use the factors found in Section 5K1.1 of the Sentencing Guidelines for that determination. District courts appear to have some latitude as to the method used to calculate the reduction for substantial assistance e.g ., "offense-level-based reductions, month-based reductions, and percentage-based reductions."

The substantial assistance exception makes possible convictions that might otherwise be unattainable. Yet, it may also lead to "inverted sentencing," that is, a situation in which "the more serious the defendant's crimes, the lower the sentence – because the greater his wrongs, the more information and assistance he had to offer to a prosecutor"; while in contrast the exception is of no avail to the peripheral offender who can provide far less substantial assistance.

Constitutional Considerations

Defendants sentenced to mandatory minimum terms of imprisonment have challenged their sentences on a number of constitutional grounds beginning with Congress's legislative authority and ranging from cruel and unusual punishment through ex post facto and double jeopardy to equal protection and due process. Each constitutional provision defines outer boundaries that a mandatory minimum sentence and the substantive offense to which it is attached must be crafted to honor.

Legislative Authority

The federal government is a creature of the Constitution; it enjoys only such powers as can be traced to the Constitution. Among the powers which the Constitution bestows upon Congress are the powers to define and punish felonies committed upon the high seas, to exercise exclusive legislative authority over certain federal territories and facilities, to make rules governing the Armed Forces, to regulate interstate and foreign commerce, and to enact legislation necessary and proper for the execution of those and Congress's other constitutionally granted powers. It also grants Congress authority to enact legislation necessary and proper to the execution of those powers which it vests in any officer or department of the federal government.

Many of the federal laws with mandatory minimum sentencing requirements were enacted pursuant to Congress's legislative authority over crimes occurring on the high seas or within federal enclaves, or to its power to regulate commerce. When a statute falls for want of legislative authority, the penalties it would impose fall with it. This has yet to occur in the area of mandatory minimum sentences relating to controlled substances.

Commerce Clause

"The Congress shall have Power ... To regulate Commerce with Foreign Nations, and among the several States, and with Indian Tribes." This clause vests Congress with authority to regulate three broad categories of interstate commerce. In the words of United States v. Lopez , "[f]irst, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress's commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce."

Applying these standards, the Lopez Court concluded that the Commerce Clause did not authorize Congress to enact a particular statute which purported to outlaw possession of a firearm on school property. Because the statute addressed neither the channels nor instrumentalities of interstate commerce, its survival turned upon whether it came within Congress's power to regulate activities that have a substantial impact on interstate commerce. Here, the statute was found wanting. "[B]y its terms" it had "nothing to do with commerce or any sort of economic enterprise." It "contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affect[ed] interstate commerce." Its impact on commerce was so remote that to credit it would envision a virtually boundless power and one reserved to the states, the Court explained.

A few years later, the Court in United States v. Morrison reiterated "that Congress may [not] regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local." Yet purely intrastate activities may have a sufficient impact on interstate commerce to bring them within the reach of Congress's Commerce Clause power. So it is in the case of the Controlled Substances Act. The Court concluded in Gonzales v. Raich that:

Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere and concerns about diversion into illicit channels, we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA [Controlled Substances Act]. Thus ... when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to 'make all Laws which shall be necessary and proper' to 'regulate Commerce ... among the several States.' That the regulation ensnares some purely intrastate activity is of no moment."

Treaty Power

The Constitution grants the President authority to negotiate treaties and the Senate the authority to approve them in the exercise of its advice and consent prerogatives. Almost a century ago, the Court observed that "[i]f the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government." The Controlled Substances Act might be considered implementation of various treaties of the United States relating to controlled substances. In fact, the Controlled Substances Act begins with the congressional finding and declaration that "[t]he United States is a party to the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances." Congress was even more explicit in the Psychotropic Substances Act of 1978 when it declared, "[i]n implementing the Convention on Psychotropic Substances, the Congress intends that, consistent with the obligations of the United States under the Convention, control of psychotropic substances in the United States should be accomplished within the framework of the procedures and criteria for classification of substances provided in the Comprehensive Drug Abuse Prevention and Control Act of 1970."

Territorial and Maritime Jurisdiction

The Constitution empowers Congress "to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations." The courts have held that the Maritime Drug Law Enforcement Act (MDLEA), which includes mandatory minimum sentencing requirements, constitutes a valid exercise of Congress's authority under the High Seas Felonies Clause.

Necessary and Proper

"The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." It has never been thought that the Necessary and Proper Clause empowers only those laws that are absolutely necessary. Instead, "[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist[ent] with the letter and spirit of the constitution, are constitutional." Thus, the Necessary and Proper Clause makes possible those statutes that are rationally related to the implementation of another constitutional power.

The Court in United States v. C omstock provided a hint of the scope of Necessary and Proper Clause. The statute there authorized the Attorney General to continue to hold a federal inmate, pending a civil commitment determination, after his scheduled date of release. The Court analyzed the breadth of the power without any explicit reference to any other constitutional power, deciding that:

[T]he statute is a "necessary and proper" means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the imprisonment of others.

Justice Scalia, in his Raich concurrence, saw the Necessary and Proper Clause as a necessary Commerce Clause supplement for legislation like the Controlled Substances Act that purports to regulate purely in-state activity. Moreover, as noted above, at least one lower federal appellate court considers the Necessary and Proper Clause the implementing vehicle for enactment of the Maritime Drug Law Enforcement Act under Congress's treaty-making powers.

Limits on Legislative Authority

The Constitution both grants and limits Congress's legislative authority. In the area of mandatory minimum sentences for controlled substance violations, the constitutional challenges have arisen largely under the Eighth Amendment's Cruel and Unusual Punishment Clause; the equal protection element of the Fifth Amendment; the Fifth and Sixth Amendment components awakened by Apprend i v. New Jersey and its progeny; and the separation-of- powers doctrine.

Cruel and Unusual Punishment

Mandatory minimums implicate considerations under the Eighth Amendment's Cruel and Unusual Punishment Clause. The clause bars mandatory capital punishment statutes and mandatory imposition on a juvenile of life imprisonment without the possibility of parole. Although the case law is somewhat uncertain, it seems to condemn punishment that is "grossly disproportionate" to the misconduct for which it is imposed, a standard which a sentence imposed under a mandatory minimum statute might breach only under extreme circumstances.

The Supreme Court decision in Ha r melin v. Michigan seems to make a defendant's Eighth Amendment arguments in a controlled substances case more difficult. The defendant in Ha r melin was a first-time offender convicted of possession of 672 grams of cocaine, enough for possibly as many as 65,000 individual doses. Under the laws of the state of Michigan, the conviction carried with it a mandatory sentence of life imprisonment without the possibility of parole. The Court splintered over the question of whether Harmelin's mandatory sentence offended the Eighth Amendment because it was grossly disproportionate to his offense.

Five members of the Court concluded that it did not. Two members, Justice Scalia and Chief Justice Rehnquist, simply refused to recognize an Eighth Amendment proportionality requirement, at least in noncapital cases. Justices Kennedy, O'Connor, and Souter concluded the Eighth Amendment does in fact forbid "extreme sentences that are grossly disproportionate to the crime." They explained, however, that Harmelin's sentence was not grossly disproportionate to the severity of his crime – that is, a crime whose "pernicious effects ... demonstrate that the ... legislature could with reason conclude that the threat posed to the individual and society by possession of this large an amount of cocaine—in terms of violence, crime, and social displacement—is momentous enough to warrant the deterrence and retribution of a life sentence without parole."

Decisions of the lower federal courts seem to confirm that the Eighth Amendment precludes a mandatory term of imprisonment in drug trafficking cases only in those exceptionally rare cases when the punishment is grossly disproportionate to the offense.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment condemns statutory classifications invidiously based on race, or constitutionally suspect factors. Moreover, "[d]iscrimination on the basis of race odious in all aspects is especially pernicious in the administration of justice." These prohibitions apply with equal force under the equal protection component of the Fifth Amendment's Due Process Clause. An explicit racial classification scheme can survive only under the most exceptional circumstances. A statute, racially neutral on its face but discriminatory in its impact, cannot survive if racially motivated. The circumstances surrounding the passage of a legislative measure with discriminatory impact may provide evidence of improper racial motivation.

At one time, possession with intent to distribute crack cocaine (cocaine base) was punished 100 times more severely than possession with intent to distribute cocaine in powdered form. Defendants claimed the distinction had a racially disparate impact. The claim was almost universally rejected.

Juries, Grand Juries, and Due Process

The Constitution demands that no person "be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury" and that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." Moreover the Supreme Court's In re Winship decision explained that due process requires that the prosecution prove beyond a reasonable doubt "every fact necessary to constitute the crime" with which an accused is charged. After Winship , the question arose whether a statute might authorize or require a more severe penalty for a particular crime based on a fact—not included in the indictment, not found by the jury, and not proven beyond a reasonable doubt. Pennsylvania passed a law under which various serious crimes (rape, robbery, kidnapping, and the like) were subject to a mandatory minimum penalty of imprisonment for five years, if the judge after conviction found by a preponderance of the evidence that the defendant had been in visible possession of a firearm during the commission of the offense. Had the Pennsylvania statute created a new series of crimes? For example, had it supplemented its crime of rape with a new crime of rape while in visible possession of a firearm? And if so, did the fact of visible possession have to be proven to the jury beyond a reasonable doubt?

The Supreme Court concluded that visible possession of a firearm under the statute was not an element of a new series of crimes, but was instead a sentencing consideration that had been given a legislatively prescribed weight. As such, the Pennsylvania statutory scheme neither offended due process nor triggered any right to a separate jury finding.

There followed a number of state and federal statutes under which facts that might earlier have been treated as elements of a new crime were simply classified as sentencing factors. In some instances, the new sentencing factor permitted imposition of a penalty far in excess of that otherwise available for the underlying offense. For instance, the Supreme Court found no constitutional defect in a statute which punished a deported alien for returning to the United States by imprisonment for not more than 2 years, but which permitted the alien to be sentenced to imprisonment for not more than 20 years upon a post-trial, judicial determination that the alien had been convicted of a serious crime following deportation.

Perhaps uneasy with the implications, the Court soon made it clear in App r endi that, "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Side opinions questioned the continued vitality of McMillan 's mandatory minimum determination in light of the Apprendi .

Initially unwilling to extend Apprendi to mandatory minimums in Harris v. United States , the Court did so in Alleyne v. United States . Alleyne was convicted under the statute that imposes a series of mandatory minimum penalties upon defendants who carry a firearm during and in furtherance of a crime of violence (5 years for carrying; 7 years for brandishing; 10 years for discharging). The jury found him guilty of carrying; the trial court judge concluded the gun had been brandished. The Sixth Amendment requires that the question of brandishing had to be found by the jury, the Court declared:

Harris drew a distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum. We conclude that this distinction is inconsistent with our decision in Apprendi and with the original meaning of the Sixth Amendment. Any fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an element that must be submitted to the jury.

Neither Apprendi nor Alleyne limits Congress's authority to establish mandatory minimum sentences or limits the authority of the courts to impose them. They simply dictate the procedural safeguards that must accompany the exercise of that authority. Thus, the lower federal appellate courts have held that the neither the Fifth nor Sixth Amendment requires that "facts that determine whether a defendant is eligible under the safety valve for a sentence below the statutory minimum" need be found by the jury beyond a reasonable doubt.

Separation of Powers

While "it remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another," the Supreme Court has observed that "Congress has the power to define criminal punishments without giving the courts any sentencing discretion." Thus, the lower federal courts have regularly upheld mandatory minimum statutes when challenged on separation-of-powers grounds, and the Supreme Court has denied any separation-of-powers infirmity in the federal sentencing guideline system, which at the time might have been thought to produce its own form of mandatory minimums.