Federal Mandatory Minimum Sentencing Statutes
Released: 2013-09-09T00:00:00

Introduction

Federal mandatory minimum sentencing statutes (mandatory minimums) demand that execution or incarceration follow criminal conviction. Among other things, they cover drug dealing, murdering federal officials, and using a gun to commit a federal crime. They have been a feature of federal sentencing since the dawn of the republic. They circumscribe judicial sentencing discretion, although they impose few limitations upon prosecutorial discretion, or upon the President's power to pardon. They have been criticized as unthinkingly harsh and incompatible with a rational sentencing guideline system; yet they have also been embraced as hallmarks of truth in sentencing and a certain means of incapacitating the criminally dangerous. This is a brief overview of federal statutes in the area and a discussion of some of the constitutional challenges they have faced.

Types of Mandatory Minimums

Mandatory minimums come in many stripes, including some whose status might be disputed. The most widely recognized are those that demand that offenders be sentenced to imprisonment for "not less than" a designated term of imprisonment. Some are triggered by the nature of the offense, others by the criminal record of the offender. A few members of this "not less than" category are less "mandatory" than others, because Congress has provided a partial escape hatch or safety valve. For example, several of the drug-related mandatory minimums are subject to a "safety valve" for small time, first time, non-violent offenders that may render their minimum penalties less than mandatory, or at least less severe. Still others can be avoided at the behest of prosecution for a defendant's substantial assistance against his cohorts. Some of the other "not-less-than" mandatory minimums purport to permit the court to sentence an offender to a fine rather than to a mandatory term of imprisonment.

A second generally recognized category of mandatory minimums consists of the flat or single sentence statutes, the vast majority of which call for life imprisonment. Closely related are the capital punishment statutes that require imposition of either the death penalty or imprisonment for life, or death or imprisonment either for life or for some term of years.

The "piggyback" statutes make up a third class. The piggyback statutes are not themselves mandatory minimums but sentence offenders by reference to underlying statutes including those that impose mandatory minimums.

Until the Supreme Court intervened in Booker v. United States to eliminate the binding effect of the Sentencing Guidelines, the final and least obvious group was comprised of statutes whose violation resulted in the imposition of a mandatory minimum term of imprisonment by operation of law, or more precisely by operation of the Sentencing Reform Act and the Sentencing Guidelines issued in its name. After Booker and the line of cases that followed, the Guidelines cannot fairly be characterized as a source of mandatory minimum sentences, although they continue to tilt heavily toward incarceration.

History

Mandatory minimums have been with us from the beginning. In fact, the history of our criminal sentencing practices is the story of increased reliance upon judicial or administrative discretion in order to mute the law's severity in individual cases, followed by increased limitations on such discretion in order to curb the resulting arbitrary and discriminatory disparities in punishment. It is a saga in which "competing theories of mandatory and discretionary sentencing have been in varying degrees of ascendancy or decline."

Severity and a want of discretion marked the early criminal law. The sentence which followed a felony conviction was death; except in rare instances no other punishment could be imposed. Over time the courts were given some discretion over sentencing, but the choices were hardly lenient; and corporal punishment and banishment were common.

Yet even early on there were efforts to ease the law's severity. Both the accused and the convicted could be pardoned at the King's will. While Parliament regularly increased the number of crimes, it often replaced common law capital offenses with statutory crimes defined as misdemeanors or subject to the benefit of clergy. The result was the same in either case, a reduced number of capital offenses. In our own country, state legislatures drastically curtailed the number of capital offenses soon after the Revolution.

When the first Congress assembled, it enacted several mandatory minimums, each of them a capital offense. The 19 th century, however, witnessed the appearance of a host of discretionary schemes designed to ease the harshness of criminal law in individual cases. The courts could suspend sentence and were vested with broad authority in the selection of those sentences they chose to impose. Probation and parole were born and became prominent.

By late in the century at the federal level, the number of mandatory capital offenses had been reduced, and while the number of mandatory minimums had increased, most federal criminal statutes merely established a maximum penalty and left to the discretion of the courts the sentences to be imposed within the maximum. The 1909 federal criminal code revision eliminated most mandatory minimums; soon thereafter federal prisoners were made eligible for parole after service of a third of their sentences (after 15 years in the case of prisoners with life sentences); and federal courts shortly thereafter received the authority to suspend the imposition or execution of sentence and impose probation. The 1948 federal criminal code revision took much the same tack as its predecessor: it eliminated many, but not all, of the "not-less-than" mandatory minimums and continued in place most of the "flat" sentence mandatory minimums.

By mid-20 th century, a well-respected commentator could observe that "[t]he individualization of penal dispositions, principally through the institutions of the indeterminate sentence, probation, and parole, is a development whose value few would contest." The contest was joined soon thereafter.

Driven by concerns that broad discretion had led to rootless sentencing, unjustifiable in its leniency in some instances and in its severity in others, legislative bodies moved to curtail discretionary sentencing on several fronts. Determinate sentencing, sentencing commissions and guidelines, and mandatory minimum sentences became more prevalent. Parole and probation were abolished or greatly restricted in several jurisdictions.

The Sentencing Reform Act of 1984 brought this trend to the federal criminal justice system. It repealed the authority of the federal courts to suspend criminal sentences. It abolished federal parole. It created a sentencing guideline system, applicable within the statutory maximum and minimum penalties established by Congress that tightly confined the sentencing discretion of federal judges. The armed career criminal, three strikes, and several of the other prominent drug, child pornography, and gun related mandatory minimums followed in the ensuing years.

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.

This substantial assistance provision was enacted with little fanfare in the twilight of the 99 th Congress as part of the massive Anti-Drug Abuse Act of 1986, legislation which established or increased a number of mandatory minimum sentencing provisions. The section passed between the date authorizing the Sentencing Guidelines and the date they 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.

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 or equal protection or other constitutional guarantees may provide a narrow exception. "Thus, a defendant would be entitled to relief if a prosecutor refused to file a substantial-assistance motion, say, because of the defendant's race or religion." 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.

A majority of the judges who answered the Sentencing Commission's survey agreed that relief under §3553(e) should be available even in the absence of motion from the prosecutor.

A motion under §3553(e) for a sentence beneath the mandatory minimum and a motion under U.S.S.G. §5K1.1 for a sentence beneath the applicable Sentencing Guideline range are not the same. Thus, a motion under §5K1.1 will ordinarily not be construed as a motion under §3553(e).

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 section 5K1.1 factors for that determination, that is, "(1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant's assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; [and] (5) the timeliness of the defendant's assistance."

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 no substantial assistance. Perhaps for this reason, most of the judges who responded to the Sentencing Commission survey agreed that a sentencing court should not be limited to assistance-related factors and should be allowed to use the generally permissible sentencing factors when calculating a sentence under §3553(e).

Mandatory Minimums and the Sentencing Guidelines

First Commission Report

Even though guidelines work to reduce judicial sentencing discretion and might once have been characterized as creating a host of new members of the species of mandatory minimums, the not-less-than mandatory minimums have been criticized as incompatible with the federal sentencing guidelines. Early on, perhaps most prominent among its critics was the Sentencing Commission itself. Its 1991 report, after sketching the arguments traditionally offered in support of mandatory minimums, observed that

only 4 of the 60 mandatory minimums were regularly prosecuted; mandatory minimums induce new sentencing disparities; due to plea bargaining, 35% of the defendants who might have been charged and sentenced under mandatory minimums were not; "disparate application of mandatory minimum sentences ... appears to be related to race"; mandatory minimums lack the capacity to consider the range of aggravating and mitigating circumstances that may attend the same offense and as a consequence produce unwarranted sentencing uniformity; uneven application deprives mandatory minimums of their potential to deter; mandatory minimums breed disparity by transferring judicial discretion to the prosecution; in contrast to the calibrated approach of the guidelines, mandatory minimums create cliffs where minuscule factual differences can have enormous sentencing consequences; the amendment process of the sentencing guidelines makes them perpetually self-correcting, while mandatory minimums are single-shot efforts at crime control; and the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of sentencing guidelines, permitting the sophistication of the guidelines structure to work, rather than through mandatory minimums.

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, lower 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.

Second Commission Report

A number of things changed between the first and second Commission reports. Sentencing under the Guidelines had only been in place for a relatively short period of time when the first report was written. The number of defendants sentenced by federal courts is now almost three times the number sentenced under the Guidelines when the Commission wrote its first report. In the years since, Congress has muted the impact of some mandatory minimums with the safety valve and the Fair Sentencing Act, but it has also added new crimes and increased the penalties for old crimes. Occasionally, that meant new mandatory minimums or increases in old mandatory minimums. The judicial landscape has changed as well. When the Commission issued its first report the Guidelines were largely binding upon sentencing judges. After the Supreme Court's Booker decision and its progeny, they are largely advisory. Finally, in the ensuing years the public policy debate over mandatory minimum sentences has continued before the Commission, before Congress, and in academic circles. The Commission's second report summarizes views of those who favor mandatory minimums and those who oppose them. Proponents contend that mandatory minimum sentences:

promote sentencing uniformity and prevent sentencing disparity; afford greater public protection through certain punishment, deterrence, and incapacitation; inflict just desserts; induce plea bargains and offender cooperation and thus contribute to law enforcement efficiency; and assist state and local law enforcement efforts.

Opponents, on the other hand, contend that mandatory minimum sentences:

contribute to both excessive uniformity and unwarranted disparity; result in disproportionate and excessively severe sentences; fail to account for individualized circumstances; transfer sentencing discretion from judges to prosecutors; constitute neither a deterrent nor an effective law enforcement tool; interfere with state law enforcement efforts; and adversely impact various demographic groups.

It omits as did the first Commission report at least one argument for mandatory minimums. During the Commission's first decade and a half of operation before Booker , the Commission created its own system of mandatory minimum penalties. The Guidelines denied judges sentencing discretion. Imprisonment was mandatory by operation of the Guidelines in the vast majority of cases. True, it occurred by operation of the exercise of a delegation of Congress's legislative authority rather than by direct exercise. Yet the result was same, a mandatory minimum term of imprisonment. The Guideline system was more nuanced, but that is a difference of degree not of kind.

Finally, the most obvious difference between the first and second Commission reports is focus. To an extent the Commission could not provide in its infancy, the second report describes, analyzes, and makes recommendations relating to the four major groups of federal mandatory minimum sentencing statutes: those involving drug crimes, gun crimes, sex crimes, and identity theft crimes.

Constitutional Boundaries

Defendants sentenced to mandatory minimum terms of imprisonment have challenged them 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 must be crafted to honor; none confine legislative prerogatives in any substantial way.

Legislative Authority

The federal government is a creature of the Constitution. It enjoys only such powers as can be traced to the Constitution. All other powers are reserved to the states or to the people. 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 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 Congress or 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.

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' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce." The Court then proceeded to conclude that the clause did not authorize Congress to enact a particular statute which purported to outlaw possession of a firearm on school property. Since 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 felt.

A few years later, the Court 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 where several mandatory minimums are found. 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. 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."

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 Comstock 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.

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, the home of several mandatory minimums, might be considered implementation of various treaties of the United States relating to controlled substances.

Territorial and Maritime

Congress enjoys legislative authority over felonies on the high seas, over matters occurring within the territorial jurisdiction of the United States, and incident to the maritime jurisdiction of the federal courts. It has exercised the authority frequently to enact criminal laws applicable within the territorial and special maritime jurisdiction of the United States. Some of these provisions include mandatory minimums.

Cruel and Unusual Punishment

Mandatory minimums implicate considerations under the Eighth Amendment's cruel and unusual punishments 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 may breach under extreme circumstances.

Proportionality

During the first century of its existence, there was little recourse to the Amendment's protection, and the early cases involved its proscriptions against particular kinds of punishment rather than of punishments of a particular degree of severity. In O'Neil v. Vermont , however, three dissenting justices expressed the view that the cruel and unusual punishments clause's prohibitions extended to "all punishments which by their excessive length or severity are greatly disproportionate to the offences charged."

The views of the O'Neil dissenters gained further credence after they were quoted by the Court in Weems v. United States , when it invalidated a territorial sentencing scheme which it found both disproportionate in degree and cruel in nature.

Perhaps because of the unusual nature of the penalties involved, the proportionality doctrine suggested in Weems lay dormant for over 60 years. It reappeared in the capital punishment cases following Furman v. Georgia .

When the capital punishment statutes enacted in response to Furman came before the Court, one of the threshold questions was whether capital punishment was a per se violation of the cruel and unusual punishments clause. For a plurality of the Court, that question could only be answered by determining whether capital punishment was necessarily "grossly out of proportion to the severity of [any] crime." In the case of murder, "when a life has been taken deliberately by the offender, [the Court could not] say that the punishment is invariably disproportionate to the crime."

In Coker v. Georgia , a plurality of the Court found "that death is indeed a disproportionate penalty for the crime of raping an adult woman." It did so after considering the general repudiation of the death penalty in such cases by the legislatures of other jurisdictions; the infrequency with which juries in Georgia had been willing to impose the death penalty for rape of an adult woman; and the comparative severity Georgia used to punish other equally or more serious crimes. The Court employed much the same method of analysis in later capital punishment cases which raised the proportionality doctrine.

Initial efforts to carry the proportionality doctrine to noncapital cases proved unsuccessful. Shortly after Coker , a petitioner, convicted under a recidivist statute which called for an automatic life sentence upon a third felony conviction, sought to persuade the Court that the Eighth Amendment precluded such a sentence based upon a comparative analysis of the severity of the treatment of recidivism in other jurisdictions, Rummel v. Estelle . The majority of the Court was not persuaded. The proportionality doctrine had only been employed in capital punishment cases and Weems , it noted. Both involved punishments, different in nature, from those in Rummel .

Moreover, the petitioner had failed to convincingly establish any objective criteria to evidence gross disproportionality. Without some objectively identifiable "bright light" marking disproportionality, the Court feared application of the proportionality doctrine would constitute subjective policy making, a task more appropriately left to the legislative bodies.

Any thoughts that the proportionality doctrine might have been abandoned were dashed almost immediately by Solem v. Helm . Solem declared that imposition of a mandatory term of life imprisonment under a state recidivist statute constituted cruel and unusual punishment. The "objective criteria" which guided a proportionality analysis included, "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on the other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions."

Individualized consideration . Consideration of the defendant's unique circumstances is one of the foundations of the Court's Eighth Amendment jurisprudence in capital punishment cases. Furman found that the Eighth Amendment's cruel and unusual punishments clause, made binding upon the states by the due process clause of the Fourteenth Amendment, precluded imposition of the death penalty at the unguided discretion of the judge or jury.

The states initially travelled one of two paths to avoid the problems of unguided discretion identified in Furman . Some eliminated discretion; others provided guidance. The second approach passed constitutional muster, Gregg v. Georgia . The first did not, Woodson v. North Carolina . Mandatory capital punishment offended the Eighth Amendment on three grounds, it was said in Woodson . It was contrary to the evolving standards of decency which mark the threshold of the Amendment's protection. It failed to address the objections of Furman to imposition of the death penalty at the unguided discretion of the judge or jury. And it failed to permit consideration of individual characteristics of the crime and offender:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death....

Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. 428 U.S. at 304 (citations omitted).

The Court regularly and consistently recognized the individual considerations requirement in subsequent capital punishment cases. Although the language cited above and other dicta would seem to apply with similar force in noncapital cases, the Court emphasized that the doctrine was limited to capital cases. The gravity of the offense appears to be the most critical factor in non-capital cases, but the seriousness of the offense may be judged at least in part by the record and other circumstances of the individual who committed it.

Gravity of the Offense

The defendant in Harmelin v. Michigan 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.

Harmelin contended that the sentence violated both the individual consideration and proportionality doctrines of the Eighth Amendment. A majority of the Court rejected the individual considerations argument and a plurality refused to accept the proportionality assertion.

The Court noted that in its opinions "[t]he penalty of death differs from all other forms of criminal punishment.... in its total irrevocability." In view of the differences, the majority saw no reason "to extend this so-called individualized capital-sentencing doctrine to an individualized mandatory life in prison without parole sentencing doctrine."

The proportionality question proved somewhat more difficult. Justice Scalia and Chief Justice Rehnquist simply refused to recognize an Eighth Amendment proportionality requirement, at least in noncapital cases. For three other justices, Kennedy, O'Connor and Souter, a sentence which satisfies the first of the Solem tests, seriousness of the offense, need not survive or even face comparisons with sentences for other crimes in the same jurisdiction and for the same crime in other jurisdictions. More precisely, the plurality emphasized that "the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime." In the case of Harmelin, the sentence was not grossly disproportionate because of the severity of his crime, that is, "the pernicious effects of the drug epidemic in this country ... 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."

The plurality opinion also contains several useful observations about the constitutionality of mandatory sentences per se.

Deference to legislative judgment notwithstanding, when the Court later applied the same gross disproportionality standard in an excessive fines context, it seemed to imply that even misconduct legislatively classified as a fairly serious crime (a felony) might lack the gravity to support boundless sanctions. United States v. Bajakajian involved the confiscation of $357,144 as a consequence of trying to carry it out of the United States without reporting it, a willful act punishable by imprisonment for not more than 5 years, 31 U.S.C. 5322. In the eyes of the Court, the crime involved a "minimal level of culpability." Moreover, "[t]he harm ... caused was also minimal. Failure to report this currency affected only one party, the Government, and in a relatively minor way.... Had his crime gone undetected, the Government would have been deprived only of the information that $357,144 had left the country.... Comparing the gravity of respondent's crime with the $357,144 forfeiture the Government seeks, we conclude that such a forfeiture would be grossly disproportional to the gravity of his offense."

Did this mean that long mandatory minimum terms of imprisonment triggered by misconduct that a court might treat as a misdemeanor under California's three strikes law might fall because it could result in grossly disproportionate sentences? Four justices said yes, but three said no, and they were joined by two others who said the law survived constitutional scrutiny regardless of proportionality.

The question arose from the sentencing of an oft-convicted defendant to imprisonment for not less than 25 years pursuant to the California recidivist statute as a result of his attempt to steal three golf clubs valued at just under $400 a piece, Ewing v. California . Under California law, the trial court might have chosen to avoid the three strikes statute either by sentencing the attempted theft as a misdemeanor or by ignoring the nature of the earlier convictions. It chose not to. The California appellate courts rejected Ewing's Eighth Amendment challenges, as did a majority of the Members of the Supreme Court.

Justices Scalia and Thomas "concluded that the Eighth Amendment's prohibition of 'cruel and unusual punishments' [is] not a 'guarantee' against disproportionate sentences" and that Ewing's sentence did not constitute cruel and unusual punishment in violation of the Eight Amendment. Justice O'Connor, joined by Justice Kennedy and Chief Justice Rehnquist, believe that the cruel and unusual punishments clause includes a "narrow proportionality principle that applies to noncapital sentences." They note that standing alone the theft of property valued at nearly $1,200 "should not be taken lightly." Moreover, "[i]n weighing the gravity of Ewing's offense, we must place in the scales not only his current felony, but also his long history of felony recidivism." Thus, "Ewing's sentence of 25 years to life in prison, for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments."

Class of Offenders

Proportionality is balance: the severity of the punishment weighted against gravity of the offense. Justice O'Connor's Ewing opinion indicates that certain of a defendant's individual circumstances, his criminal record for instance, enhance gravity of the offense. Other cases hold out the possibility that other individualistic circumstances, such as the defendant's mental capacity or maturity, may enhance the severity of the punishment. These cases also have their origin in the death penalty cases.

The first of these, Atkins v. Virginia , held that the Eighth Amendment barred execution of a mentally retarded defendant. In the years leading up to Atkins , a substantial number of state legislatures in capital punishment states had banned execution of the mentally retarded. Elsewhere, though permitted in law, the practice has been abandoned in fact. This, coupled with the fact that a want of defendant capacity undermines the normal expectations and justifications of the criminal justice system, marked execution of the mentally retarded as an Eighth Amendment impermissible excessive punishment.

For much the same reason, the Court shortly thereafter in Roper v. Simmons declared that the Eighth Amendment prohibited imposing the death penalty for a crime committed as a juvenile. Next, the Court carried the Atkins-Roper line of cases beyond the capital punishment realm. In Graham v. Florida , Justice Kennedy explained that "[t]he Court's cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances of a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty." In the first line of cases, the Solem-Harmelin-Ewing line, the Court employs a proportionality standard, and "it has been difficult for the challenger to establish a lack of proportionality."

In the second line of cases, the Atkins-Roper line, Graham recognized a two-step approach used when the challenge is based on a characteristic of the defendant, such as his mental capacity as in Atkins or his age as in Roper . First, the Court "considers 'objective indicia of society's standards, as expressed in legislative enactments and state practice' to determine whether there is a national consensus against the sentencing practice at issue." Second, "guided by 'the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose,' the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution."

Graham challenged his sentence of life imprisonment without the possibility of parole imposed the commission of a nonhomicide, armed robbery, committed while a child. Using this Atkins-Roper approach the Court concluded that the Eighth Amendment precluded Graham's sentence. It carried that logic forward in Miller v. Alabama . The Miller defendants had been convicted of capital murder committed while juveniles and had been sentenced to life imprisonment without the possibility of parole. That the Eighth Amendment does not permit, the Court held. The Miller sentencing procedures suffered from two previously identified constitutional defects. First, they barred consideration of the mitigating impact of the defendant's age:

By removing youth from the balance – by subjecting a juvenile to the same life-without-parole sentence applicable to an adult – these laws prohibit a sentencing authority from assessing whether the law's harshest term of imprisonment proportionately punishes a juvenile offender. That contravenes Graham's (also Roper's ) foundational principle: that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children.

Second, the procedure not only failed to account a paramount culpability-reducing factor, but it also failed to account for the severity of the sentence when imposed upon a child:

Graham makes plain these mandatory scheme's defects in another way: by likening life-without-parole sentences imposed on juveniles to the death penalty itself. Life-without-parole terms, the Court wrote, share some characteristics with death sentences that are shared by no other sentences. Imprisoning an offender until he dies alters the remainder of his life by a forfeiture that is irrevocable. And this lengthiest possible incarceration is an especially harsh punishment for a juvenile because he will almost inevitably serve more years and a greater percentage of his life in prison than an adult offender. The penalty when imposed on a teenage, as compared with an older person, is therefore the same in name only. All of that suggested a distinctive set of legal rules: In part because we viewed this ultimate penalty for juveniles as akin to the death penalty, we treated it similarly to that most severe punishment.

Thus, under the current state of the law, the Eighth Amendment bars imposition of a mandatory life term of imprisonment upon juveniles and most likely a particular term of imprisonment in those exceptionally rare cases when the punishment is grossly disproportionate to the offense.

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, due process requires that the prosecution prove beyond a reasonable doubt "every fact necessary to constitute the crime" with which an accused is charged, In re Winship . 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 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," Apprendi v. New Jersey . 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 , 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 court 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 the Sixth Amendment, Apprendi , nor Alleyne limits Congress's authority to establish mandatory minimum sentences nor limits the authority of the courts to impose them. They simply dictate the procedural safeguards that must accompany the exercise of that authority.

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.

Drug Crimes

Federal law regulates the cultivation, manufacture, distribution, export, import, and possession of certain plants, drugs, and chemicals, which it designates as controlled substances and classifies according to medicinal value and potential for abuse under the Controlled Substances Act and the Controlled Substances Import and Export Act. The acts contain a number of mandatory minimum penalty provisions. Most involve possession with the intent to distribute (traffic) substantial amounts of eight controlled substances which are considered highly susceptible to abuse. The mandatory minimums are structured so that more severe sentences attend cases involving very substantial quantities, death or serious bodily injury, or repeat offenders. The penalties of the underlying offense apply to anyone who attempts or conspires to commit any controlled substance offense that carries a mandatory minimum.

The eight trigger substances are heroin, powder cocaine, cocaine base (crack), PCP, LSD, propanamide, methamphetamine, and marijuana. Each comes with one set of mandatory minimums for trafficking a substantial amount and a second, high set of mandatory minimums for ten times that amount. The first set (841(b)(1)(B) levels) has the following thresholds:

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

The second set (841(b)(1)(A) levels):

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

In addition to the volume mandatory minimums for these eight, trafficking in lesser amounts of those substances, or in other schedule I or schedule II controlled substances, or in various "date rape" drugs carries mandatory minimums if the business results in death or serious bodily injury.

Severe mandatory minimum penalties also follow conviction under the continuing criminal enterprise ("drug kingpin") section. Section 848(c) defines a continuing criminal enterprise as one in which an individual derives substantial income from directing five or more others in the commission of various controlled substance felonies. The offense itself carries a term of imprisonment of not less than 20 years and may be increased to not more than 30 years for repeat offenders. Furthermore, anyone who kills in furtherance of the enterprise is punishable by imprisonment for not less than 20 years and may be put to death. Large scale drug kingpins who traffic in vast amounts of any of the eight 841(b)(1) substances or who realize vast fortunes from such trafficking receive a mandatory life term of imprisonment upon conviction.

Narco-terrorists who traffic in the threshold amounts of the eight 841(b)(1) substances are punishable by imprisonment for not less than twice the mandatory minimum that would otherwise apply.

As reflected in the chart below, less stringent mandatory minimum sentences await repeat offenders convicted of simple possession and those who traffic controlled substances, not otherwise accompanied by mandatory minimums, to pregnant women, children, or in proximity of a school, playground or other prohibited location.

Possession with Intent

Conviction of possession with intent to distribute various controlled substances forms the basis for imposition of a mandatory minimum sentence under §841(b). To support a conviction, "the government must show that the defendant had (1) knowing (2) possession of the drugs and (3) an intent to distribute them." The government need not prove that the defendant knew the particular type or quantity of the controlled substance he intended to distribute. Culpable possession may be either actual or constructive. "Constructive possession exists where the defendant has the power to exercise control or dominion over the item. In drug cases, constructive possession is an appreciable ability to guide the destiny of the contraband." As for the intent to distribute, it "can be proven circumstantially from, among other things, the quantity of cocaine and the existence of implements such as scales commonly used in connection with the distribution of cocaine." Moreover, although proof of sale or gift will suffice, intent to distribute demands no more than an intent to transfer.

The escalating mandatory minimums that apply to offenders with "a prior conviction for a felony drug offense" extend to those classified as misdemeanors under state law but punishable by imprisonment for more than a year. They also apply even though the underlying state felony 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 of the prospect of an enhanced mandatory minimum, is jurisdictional.

The second Sentencing Commission report made several recommendations relating to repeat offender mandatory minimums. It suggested that the escalator approach in some instances might be unduly severe. It also expressed the view that exclusion of simple possession offenses and greater compatibility with state sentence provisions might be advisable.

The mandatory minimums apply with equal force to those who attempt to possess with intent to distribute, or who conspire to do so, or who aids and abets another to do so. "To prove the crime of attempted knowing or intentional possession, with intent to distribute, of a controlled substance, the government must show: (1) the defendant acted with the intent to possess a controlled substance with the intent to distribute; and (2) the defendant engaged in conduct which constitutes a substantial step toward commission of the offense."

"To establish a conspiracy, the government must prove: (1) the existence of an agreement among two or more people to achieve an illegal purpose; (2) the defendant's knowledge of the agreement; and (3) that the defendant knowingly joined and participated in the agreement." The agreement may be inferred circumstantially. Conspirators need to know the scheme's general outline, but every conspirator need not be informed of the plot's every detail.

"To convict under a theory of aiding and abetting, the Government must prove: (1) the substantive offense was committed; (2) the defendant contributed to and furthered the offense; and (3) the defendant intended to aid in its commission."

Drug Kingpin

Conviction of a Continuing Criminal Enterprise (CCE or Drug Kingpin) offense is punishable by imposition of a mandatory minimum. 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 supervision; [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.

Safety Valve

Low level drug offenders can escape some of the mandatory minimum sentences if they qualify for 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. It is available to qualified offenders convicted of violations of the possession with intent, the simple possession, attempt, or conspiracy provisions of the Controlled Substances or Controlled Substances Import and Export Acts.

It is not available to avoid the mandatory minimum sentences that attend other offenses, even those closely related to the covered offenses. For instance, §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.

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 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

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 arguable more serious offenses, such as gambling or prostitution, that are only excused 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."

Two-thirds of the judges who responded to the Commission's survey favored expanding the safety valve criminal history criterion to encompass those with 2 or 3 criminal history points, although fewer than one quarter favored expansion of the criterion further. Some of the Commission's hearing witnesses concurred. The Commission's second report, in fact, recommends that Congress "consider expanding the safety valve ... to include certain offenders who receive two, or perhaps three, criminal history points under the guidelines."

Only the Non-violent

The safety valve has two disqualifications designed to reserve its benefits to the non-violent. 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, 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 the threat of violence or possession of a firearm "in connection with the offense." 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 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 Sentence Guidelines disqualify anyone who receives a guideline level increase for their aggravated role in the offense. Thus, by implication, it does not require a defendant to have received a guideline increase based on his minimal or minor participation in a group offense nor does it disqualify 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 explain what form the defendants' full disclosure must take. At least one court has held that under rare circumstances disclosure through the defendant's testimony at trial may suffice. 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 addition information it seeks; for "the government is under no obligation to solicit information from a defendant." On the other hand, past lies do not render a defendant ineligible for relief under the truthful disclosure criterion of the safety value, although they may undermine his creditability.

Firearms Offenses

Section 924(c)

Mandatory minimums are found in two federal firearms statutes. One, the Armed Career Criminal Act, deals exclusively with recidivists. The other, §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) has been the subject of repeated Supreme Court litigation and regular congressional amendment since its inception in 1968.

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

imprisonment for not less than five years, unless one of 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 §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 §924(c) and if the firearm is a machine gun or destructive device or is equipped with a silencer.

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 are broken; it does not, however, include toys or imitations.

The mandatory minimums apply to "any person, who, during and in relation to any [federal] crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." Originally, section 924(c) condemned only "use" of a firearm in connection with certain federal offenses. Then, the Supreme Court pointed out in Bailey that the word "use" demands more than simple possession. Congress amended the section thereafter to outlaw not only use during and in relation to a predicate offense, but possession "in furtherance" of a predicate drug trafficking or violent offense as well.

Predicate Offenses

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. The crime of violence predicates are statutorily defined as any federal felony that satisfies either of two tests, that is, (1) if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or (2) if it "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."

The Supreme Court has addressed several other aspects of section 924(c), but it has yet to decide what constitutes a crime of violence for purposes of the section. In Leocal v. Ashcroft , however, it had occasion to examine the question under 18 U.S.C. 16 which defines crimes of violence in virtually the same terms.

There, it reasoned that the wording of the definition precluded its application to the crime of driving under the influence and causing injury. When the statute speaks of the element involving the " use ... of physical force against the person or property another"—as both sections 16 and 924(c)(3) do—it means "a higher degree of intent than negligent or merely accidental conduct." When, like sections 16 and 924(c)(3), it speaks of a "risk that physical force against the person or property of another may be used in the course of committing the offense," it means the "risk that the use of physical force against another might be required in committing the offense," not the risk that physical force might inadvertently or negligently visited upon another. "The ordinary meaning of this term [(the use physical force)] ... 'calls to mind a tradition of crimes that involve the possibility of more closely related, active violence'").

The circuit courts have found a wide range of federal crimes fit the definition. One has used the Leocal tests to reconcile the conflicting views in other circuits and decide that firearm possession offenses are not crimes of violence for purposes of section 924(c).

Possession in Furtherance

The possession prong of the offense requires that the defendant "(1) knowingly, (2) possessed a firearm, (3) in furtherance of any [federal] drug trafficking crime." The "in furtherance" element 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, that is, "(1) type of drug activity [or violent crime] that is being conducted, (2) accessibility of the firearm, (3) the type of the weapon, (4) whether the possession is illegal, (5) whether the gun is loaded, (6) the proximity to the drugs or drug profits, and (7) the time and circumstances under which the gun is found."

Although the Supreme Court has made it clear that acquiring a firearm in an illegal drug transaction does not constitute "use" in violation of the 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, or when he uses it as collateral in a drug deal, 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 vehicle during and in relation to a predicate offense.

A firearm is used or carried "during or 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.

Discharge and Brandish

The basic 5-year mandatory minimum penalty for using, carrying, or possessing a firearm in the course of a predicate offense becomes a 7-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 is discharged inadvertently. Whether a firearm is discharged or brandished is a question that after Alleyne 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 the 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. 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 machinegun, 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 machinegun was the firearm used during and in relation to a predicate offense. Thereafter, it concluded that the division was a matter of style rather than substance. Thus, the answer remains the same—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.

Other 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 924(c)(1) minimum mandatory sentence be served concurrently with some other sentence. Nor may a court mute the impact of a mandatory minimum sentence by artificially reducing the sentence for the 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, if they are 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 . 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.

Armor Piercing Ammunition

Section 924(c) has a separate provision which outlaws predicate crime-related use, carriage, or possession of armor piercing ammunition. The provision, added in 2005, greatly resembles a pre-existing provision in 18 U.S.C. 929. There are two significant differences. Section 924(c)(5) carries a 15-year mandatory minimum with special provisions if a death results from the commission of the offense. Section 929 carries a five-year mandatory minimum with no mention of death-resulting offenses. Yet, section 929 specifically excludes the possibility of probation or concurrent sentencing; while section 924(c)(5) makes no mention of either. Neither provision appears to have been prosecuted with any regularity.

Aiding, Abetting, and Conspiracy

As a general rule, 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).

Under federal law, moreover, anyone who commands, counsels, aids, or abets the commission of a federal offense by another is punishable as though he had committed the crime himself, 18 U.S.C. 2. Here too, the general proposition applies to section 924(c). "[A] defendant is liable of aiding and abetting the use of a firearm during a crime of violence if he (1) knows his cohort used a firearm in the underlying crime, and (2) knowingly and actively participates in that underlying crime."

Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Supreme Court has explained that the Second Amendment confers an individual right to possess and carry weapons for the defense of his or her person, family, and home. The Court has been quick to point out, however, that the right is not absolute. Without providing a full panoply of exceptions, it observed that the Amendment permits such things as "longstanding prohibitions on the possession of firearms by felons and the mentally ill, [and] laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, [and] laws imposing conditions and qualifications on the commercial sale of arms." Consistent with this theme, the circuit courts have held that the Second Amendment cast no constitutional doubt upon §924(c).

Double Jeopardy

The Fifth Amendment declares that "No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb...." The double jeopardy clause protects against both successive prosecutions and successive punishments for the same offense. The initial test for whether a defendant has been twice tried or punished for the same offense or two different offenses is whether each of the two purported offenses requires proof that the other does not. Thus, without violating the double jeopardy clause, an individual may be convicted and sentenced for two violations of section 924(c), if each has a different predicate offense. On the other hand, there is no consensus over whether a single predicate offense may support conviction and sentencing for two or more violations of section 924(c). Moreover, the conviction for a serious offense will ordinarily preclude prosecution or punishment for a lesser included offense, since the lesser offense consists of only elements found in the more serious offense. For example, a defendant may not be convicted and punished for both a violation of section 924(c)(use of a firearm in furtherance of a robbery) and of section 924(j)(use of the same firearm in the same robbery resulting in death).

Sentencing Commission

More than 60% of the judges who responded to the Commission's survey felt that the mandatory minimum sentencing provisions of section 924(c) were appropriate. Nevertheless, the Commission recommended that Congress consider several modifications:

i. Amend the length of section 924(c) penalties

Congress should consider amending the mandatory minimum penalties established at section 924(c), particularly the penalties for "second or subsequent" violations of the statute, to lesser terms. Section 924(c), for example, requires a 25-year mandatory minimum penalty for offenders convicted of a "second or subsequent" violation of the statute. Reducing the length of the mandatory minimum penalty would reduce the risk of excessive severity, permit the guidelines to better account for the variety of mitigating and aggravating factors that may be present in the particular case, and mitigate the inconsistencies in application produced by the severity of the existing mandatory minimum penalties.

ii. Make section 924(c) a "true" recidivist statute

Congress should consider amending section 924(c) so that the increased mandatory minimum penalties for a "second or subsequent" offense apply only to prior convictions. In those circumstances, the mandatory minimum penalties for multiple violations of section 924(c)

charged in the same indictment would continue to apply consecutively, but would require significantly shorter sentences for offenders who do not have a prior conviction under section 924(c). This would reduce the potential for overly severe sentences for offenders who have not previously been convicted of an offense under section 924(c), and ameliorate some of the demographic impacts resulting from stacking.

iii. Give discretion to impose concurrent sentences for multiple section 924(c) violations

Congress should consider amending section 924(c) to give the sentencing court limited discretion to impose sentences for multiple violations of section 924(c) concurrently. Congress has recently used this approach in enacting the offense of aggravated identity theft and the accompanying mandatory penalty at 18 U.S.C. § 1028A. This limited discretion would provide the flexibility to impose sentences that appropriately reflect the gravity of the offense and reduce the risk that an offender will receive an excessively severe punishment.

iv. Amend statutory definitions

Congress should consider clarifying the statutory definitions of the underlying and predicate offenses that trigger mandatory minimum penalties under section 924(c) and the Armed Career Criminal Act to reduce the risk of inconsistent application and the litigation that those definitions have fostered. To further reduce the risk of inconsistent application, Congress also should consider more finely tailoring the definitions of the predicate offenses that trigger the Armed Career Criminal Act's mandatory minimum penalty.

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

The Armed Career Criminal Act (ACCA) establishes a 15-year mandatory minimum term of imprisonment for defendants convicted of unlawful possession of a firearm under section 18 U.S.C. 922(g) who have three prior convictions for violent felonies or serious drug offenses. Although §922(g) bans firearm possession for nine categories of individuals, it applies most often to defendants with prior felony convictions for obvious reasons. More often than not, the prior convictions are for violations of state law.

Predicate Offenses

The elements of a §924(e) violation consist of an unlawful possession offense coupled with three qualifying prior convictions. The prior convictions must be for either violent felonies or serious drug offenses and 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. 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 beings." 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 a different occasion, however, must be clear on the judicial record; recourse to police records will not do.

Application of section 924(e) provides no opportunity to challenge the validity of the underlying predicate offenses.

Serious Drug 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 called for a term of less than 10 years, or when the defendant was in fact sentenced to a lesser term of imprisonment. The drug offense must be at least a 10-year felony at the time of prior conviction to qualify as a predicate offense under §924(e).

As long as the attempt is punishable by imprisonment for 10 years or more, the term "serious drug offense" includes attempts to commit a serious drug offense.

Violent Felonies

The assessment of whether a past crime constitutes a violent felony for purposes of section 924(e) is more complicated than whether a drug offense is a serious drug offense for such purposes. The task involves an examination of "how the law defines the offense and not ... how an individual offender might have committed on a particular occasion." Violent felony predicates come in two varieties: offenses involving the use of physical force and offenses of the burglary/arson/ extortion class.

Physical force. The physical force category consists of those offenses that have "as an element the use, attempted use, or threatened use of physical force against the person of another." "Physical force" here means "violent force – that is, force capable of causing physical pain or injury to another person." Thus, it does not include state convictions for intentional touching of another, such as the Florida statute in Johnson .

Burglary et al. The second variety of violent felony predicates consists of the crimes of burglary, arson, extortion, use of explosives, and any other offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another." The crimes found in the residual clause (crimes that "otherwise involve ... ") are only those similar to the enumerated crimes of burglary, arson, extortion and the use of explosives, those marked by "purposeful, violent and aggressive conduct." Thus, the class includes "def[ying] a law enforcement command by fleeing in a car," but does not include convictions for driving under the influence of alcohol or failing to report to begin serving a term of imprisonment. The statutory elements of the crime of prior conviction determine whether the conviction qualifies for purposes of the residual clause. While a court may inquiry minimally into the facts of a given case when a statute provides alternative elements (one qualifying and the other not) for the offense of conviction, it may not do so when the statute condemns broadly both qualified and unqualified misconduct.

Legislative Authority

Congress's constitutional authority to regulate interstate and foreign commerce is among its most sweeping prerogatives, but the power is not boundless. It permits regulation of the use of the channels of commerce, of the instrumentalities of commerce, of the things that move there, and of those activities which substantially impact commerce. Absent such a nexus, it does not permit Congress to enact legislation proscribing possession of a firearm on school grounds, as the Supreme Court observed in Lopez . Section 922(g) outlaws receipt by a felon of a firearm "which has been shipped or transported in interstate or foreign commerce." This, in the view of the circuit courts to address the issue, is sufficient to bring within Congress's commerce clause power the prohibitions of section 922(g), that section 924(e) makes punishable.

Second Amendment

In §924(e) cases, the courts ordinarily proceed no further in their Second Amendment analysis than to the threshold possession offense, for example, 18 U.S.C. 922(g)(1)(prohibiting firearm possession by convicted felons). Pointing to the statement in Heller , they conclude that the possession offense does not offend the Second Amendment. From which it seems to follow that §924(e), at least when it imposes a mandatory minimum sanction upon felons who violate section 922(g)(1), is similarly inoffensive.

Apprendi and Recidivism

The Supreme Court in Almendarez-Torres identified the fact of a prior conviction as a sentencing factor. It rejected the argument that the Fifth and Sixth Amendments required that the fact of a defendant's prior conviction be charged in the indictment and found by the jury beyond a reasonable doubt. Yet almost immediately thereafter, it seemed to repudiate the broad implications of Almendarez-Torres , while clinging to its narrow holding, "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."

And so the Court continued in Blakely and Booker— unless the defendant waived, a jury must decide any sentence enhancing fact, other than the fact of a prior conviction. The Court wavered slightly in Shepard where a plurality held that a sentencing court may look no further than the judicial record of a prior conviction when faced with a dispute over whether a section 924(e) defendant was convicted earlier of a qualifying predicate offense. Justice Thomas, upon whose concurrence the result rested, however, opined that " Almendarez-Torres ... has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided."

Nevertheless, the Court has yet to revisit Almendarez-Torre s, and the lower federal courts continue to adhere to it in section 924(e) cases: the fact of a prior qualifying conviction need not be charged in the indictment nor proved to the jury beyond a reasonable doubt.

Eighth Amendment

Defendants sentenced under section 924(e) have suggested two Eighth Amendment issues. First, they argue that their sentences are disproportionate to their offenses. Second, they contend that crimes committed when they were juveniles may not be used as predicates.

The Eighth Amendment prohibits the infliction of cruel and unusual punishments. It has been said to prohibit sentences that are "grossly disproportionate" to the crime. Under varying theories, the Supreme Court has held that it permits the imposition of life imprisonment without the possibility of parole of a first-time offender convicted of large scale drug trafficking; and permits the imposition of a sentence of imprisonment for 25 years to life following a "three strikes" conviction resting on three nonviolent grand theft convictions. On the other hand, the Court held in Ewing that the Eighth Amendment precludes execution for a capital offense committed by a juvenile, and most recently in Graham that it precludes imprisonment for life without parole for a non-homicide offense committed by a juvenile.

The lower federal courts have consistently rejected general claims that sentences under 924(e) were grossly disproportionate to the crimes involved. In cases decided before Graham , the lower federal courts had also rejected claims that the Eighth Amendment precluded use of a juvenile predicate offense to trigger sentencing of an adult under section 924(e). To date, there have been no subsequent federal appellate court decisions directly on point. Two circuits, however, have found no Eighth Amendment impediment to mandatory life imprisonment sentences imposed under provisions other than section 924(e) upon adults convicted of drug trafficking and based in part on predicate juvenile offenses.

Double Jeopardy

The Fifth Amendment ensures that no "person be subject for the same offence to be twice put in jeopardy of life or limb." The double jeopardy clause protects against both successive prosecutions and successive punishments for the same offense. The test for whether a defendant has been twice tried or punished for the same offense or tried or punished for two different offenses is whether each of the two purported offenses requires proof that the other does not. Defendants have argued to no avail that the double jeopardy clause bars reliance on the predicate offenses or on section 922(g) to trigger section 924(e).

Almost 60% of those responding to the Sentencing Commission survey indicated that they considered the section 924(e) mandatory minimum sentences appropriate.

Sex Offenses

Congress increased the number of federal sex offenses and their attendant mandatory minimum sentences beginning in 1978 with the enactment of the first federal child pornography statutes. It filled out the complement of federal sex offenses with mandatory minimum sentences of imprisonment at fairly regular intervals thereafter. The current array includes:

Federal Enclaves and Prisons

Federal sex offenses, and consequently the mandatory minimums that accompany them, involve either federal enclaves, interstate travel, or commerce, and are roughly arranged within title 18 of the United States Code accordingly. Chapter 109A outlaws rape and other forms of sexual abuse and sexual contact when committed in federal enclaves or federal prisons. Chapter 110 outlaws child pornography. Chapter 117 outlaws sexual activities that have travel or commercial attributes.

Chapter 109A reaches a relatively wide range of sexual misconduct under relatively narrow jurisdiction circumstances. It applies in the special maritime and territorial jurisdiction of the United States. It applies as well in federal prisons and other institutions where individuals are held in federal custody by contract or agreement with federal authorities, regardless of whether they are located within the territorial jurisdiction of the United States.

Within the United States, the "territorial jurisdiction of the United States" refers to those areas over which Congress enjoys state-like legislative jurisdiction. It includes some, or parts of some, military installations, Indian reservations, national parks, and national forests. Outside of the United States, it includes overseas federal facilities and residences with respect to offenses committed by or against U.S. nationals. Felonies proscribed when committed within the territorial jurisdiction of the United States are also proscribed when committed outside the United States by members of the Armed Forces, or employees of the Armed Forces, or those accompanying the Armed Forces.

The "maritime jurisdiction of the United States" includes vessels of U.S. registry, vessels owned by Americans, and vessels scheduled to arrive in, or depart from, the United States with respect to crimes committed by or against a U.S. national.

Prosecution of the mandatory minimum offenses of chapter 109A and each of the other mandatory minimum federal sex offenses may begin at any time. There is no applicable statute of limitations, although in rare instances due process may preclude prosecution of a stale complaint.

Offenses

Chapter 109A violations trigger mandatory minimum sentencing provisions when:

the offender commits or attempts to commit a sexual act by force or threat or by rendering the victim unconscious or intoxicated (aggravated sexual abuse); a sexual act is committed against a minor under the age of 12, or under the age of 16, if is there is disparity of 4 years or more between the age of the victim and the age of the offender (aggravated sexual abuse of a child); the offender commits or attempts to commit a sexual act by threat or when the victim is incapacitated (sexual abuse); had the sexual contact been a sexual act, it would have been punishable as sexual abuse or aggravated sexual abuse (abusive sexual contact); or the offense is a federal sex offense, including an offense subject to a mandatory minimum sentence, committed against a minor by an offender with a prior state or federal conviction for a sex offense committed against a minor (repeated sexual offense).

Definitions

Chapter 109A offenses each involve some form of "sexual act" or "sexual contact." The term "sexual act" includes oral sexual activity as well as sexual penetration by sex organ, foreign object, or digitally. It also covers touching the genitalia of a child under the age of 16 for purposes of humiliation or sexual gratification. The term "sexual contact" includes touching any of the sexually sensitive areas of the body of another for purposes of humiliation or sexual gratification.

Aggravated Sexual Abuse

Section 2241 of chapter 109A proscribes two types of aggravated sexual abuse, each punishable by a mandatory minimum term of imprisonment. First, under the prison and territorial conditions noted above, subsections 2241(a) and (b) outlaw causing, or attempting to cause, another person to engage in a sexual act, when it is accomplished by force, threat, rendering the victim unconscious, or by substantially incapacitating the victim using drugs or intoxicants. Such misconduct is punishable by fine, or by imprisonment for any term of years or for life, or by both a fine and imprisonment, regardless of the age of the victim.

Second, under prison and territorial conditions or when the offender crosses a state border with intent to commit the offense, subsection 2241(c) criminalizes engaging or attempting to engage in a sexual act with a child under 12 years of age (or under 16 years of age, if the offender is 4 years or more the victim's senior). The offense is punishable by imprisonment for not less than 30 years or for life. The mandatory minimum sentencing requirement cannot be overcome by the general sentencing instruction in 18 U.S.C. 3553(a) that a sentence imposed should be no greater than necessary to serve the sentencing purposes identified in that section. The offense is punishable by life imprisonment, if the offender has a prior comparable federal or state conviction.

A defendant may be guilty of an attempted violation of subsection 2241(a), (b), or (c), when he intends to commit the offense and takes a substantial step toward its completion. The prosecution under subsection 2241(c) need not show that the defendant knew that the victim was under 12 years of age, and the greater protection afforded victims under the age of 12 offends neither the equal protection nor due process clauses of the Constitution. The courts have held that a 30-year mandatory minimum sentence for violation of subsection 2241(c) is not so disproportionate as to constitute unconstitutional cruel and unusual punishment, nor does its imposition upon Native Americans violate the equal protection clause. Although abusive sexual contact is a lesser included offense of aggravated sexual abuse, both may be prosecuted without offending the double jeopardy clause, when they involve distinct criminal acts, even if occurring in the same criminal episode.

Sexual Abuse

Section 2242 makes sexual abuse a federal crime when comparable jurisdiction conditions exist, that is, when it is committed within the special maritime and territorial jurisdiction of the United States or equivalent overseas locations or in a federal prison or other federal custodial institution. Sexual abuse is punishable by a fine and a mandatory minimum term of imprisonment for any term of years or for life, regardless of the age of the victim. The offense may be committed by using or attempting to use threats to cause another to engage in a sexual act or by engaging or attempting to engage in a sexual act with an incapacitated victim. A victim who is asleep or incapacitated by intoxication is considered incapacitated for purposes of sexual abuse. A victim with reduced mental capacity may also be considered more susceptible to threats.

Abusive Sexual Contact

Section 2244 proscribes abusive sexual contact, that is, engaging in sexual contact (touching) under circumstances (threats, force, etc.) that would constitute abuse under section 2241 or 2242 had the contact been a sexual act (penetration). Abusive sexual contact is punishable by a fine and a mandatory term of imprisonment for any term of years or for life when engaging in a sexual act under similar circumstances would have violated subsection 2241(c)(victim under 12 or under 16 if the offender is more than 4 years the victim's senior). Abusive sexual contact is not otherwise punishable by a mandatory minimum term of imprisonment.

Repeated Sex Offenses Against Children

A defendant, guilty of a "federal sex offense" against a child and previously convicted of a federal or state felonious sex offense committed against a child, must be sentenced to life imprisonment under 18 U.S.C. 3559(e). A child for purposes of subsection 3559(e) is a minor under the age of 17. The federal predicate offenses for purposes of the subsection include both violations of chapter 109A and similar federal and state offenses, that is, violations of "section 1591 (relating to sex trafficking of children), 2241 (relating to aggravated sexual abuse), 2242 (relating to sexual abuse), 2244(a)(1) (relating to abusive sexual contact), 2245 (relating to sexual abuse resulting in death), 2251 (relating to sexual exploitation of children), 2251A (relating to selling or buying of children), 2422(b) (relating to coercion and enticement of a minor into prostitution), 2423(a) (relating to transportation of minors)"; or any state equivalent felony.

The defendant must also have been convicted and sentenced prior to the commission of the second offense. An equivalent state offense qualifies as a subsection 3559(e) predicate when it consists of conduct that would be a federal offense should it occur under one of two jurisdictional circumstances—(1) the offense involves use of the mails or interstate commerce, or (2) the offense occurs on a federal enclave, prison, or facility, or in Indian country. Although the predicate state offense must be committed against a child, the victim's status as a child need not be an element of the state offense. Moreover, the state predicate offense need have no federal nexus at the time of commission; it is enough that it would have been a federal offense under the designated jurisdictional circumstances.

A qualified defendant must be sentenced under subsection 3559(e), notwithstanding the fact that he might otherwise have been sentenced under the less severe recidivist provisions of 18 U.S.C. 2551(e).

Subsection 3559(e) provides defendants with a narrow affirmative defense when either the offense of conviction or the predicate offense arises under subsection 2422(b)(relating to inducing another to engage in prostitution) or under subsection 2423(a)(relating to transportation of a child for illicit sexual purposes). To claim the benefits of the defense, an accused must show by clear and convincing evidence that "(A) the sexual act or activity was consensual and not for the purpose of commercial or pecuniary gain; (B) the sexual act or activity would not be punishable by more than one year in prison under the law of the State in which it occurred; or (C) no sexual act or activity occurred."

Travel and Commerce

Several mandatory minimum sentencing statutes punish sexual misconduct based on Congress's legislative authority to regulate interstate and foreign commerce. Most are found in chapter 117 (relating to transportation for illegal sexual activity), but a few others appear in either chapter 109A (relating to sexual abuse) or chapter 77 (relating to peonage, slavery, and human trafficking).

Generally known as the Mann Act or the White Slave Act or the White Slave Traffic Act, chapter 117 has five sections that proscribe travel or the use of the facilities of interstate or foreign commerce when they relate to sexual misconduct: (1) 18 U.S.C. 2421 that outlaws transporting or attempting to transport another in interstate or foreign commerce for purpose of prostitution or other illicit sexual activity; (2) 18 U.S.C. 2422 that outlaws either (a) enticing or attempting to entice another to engage such travel for such a purpose or (b) using or attempting to use the facilities of interstate commerce for such enticement of a minor for such purpose; (3) 18 U.S.C. 2423 that outlaws travel under various circumstances for illegal purposes; (4) 18 U.S.C. 2424 that outlaws false or incomplete filings relating to foreign nationals maintained in a house of prostitution; and (5) 18 U.S.C. 2425 that outlaws the use of the facilities of interstate commerce to communicate information relating to a juvenile for illicit sexual purposes. Sections 2422 and 2423 contain mandatory minimum sentencing provisions; the others do not.

Coercion and Enticement

Subsection 2422(b) requires imposition of a fine and a mandatory minimum term of imprisonment of 10 years for using the facilities of interstate commerce to coerce or entice a child under 18 years of age to engage in prostitution or other illicit sexual activity. Subsection 2422(a) punishes such misconduct involving an adult victim with imprisonment for not more than 20 years with no minimum sentence required.

Coercion or enticement in violation of subsection 2422(b) consists of "(1) use of a facility of interstate commerce (2) to knowingly persuade, induce, entire, or coerce (3) an individual under the age of 18 (4) to engage in illegal sexual activity." The subsection also proscribes any attempt to engage in such conduct. Conviction for attempt requires proof of an intent to violate the subsection and of a substantial step beyond mere preparation toward accomplishment of that intent. The intent required is the intent to entice or coerce—not the intent to engage in the illicit sexual act. The effort to entice need not be addressed to a child directly; culpability may result from efforts to entice through an adult intermediary. An offender who is misled as to the existence of an actual child victim is no less culpable.

Convictions under subsection 2422(b) have withstood a number of constitutional challenges. Defendants have generally been unable establish that they have been exposed to grossly disproportionate sentences in violation of the Eighth Amendment; or suffered a Fifth Amendment deprivation of due process in the form of entrapment, the loss of judicial sentencing discretion, or the denial of equal protection; or lost First Amendment freedom by exposure to vague and overbroad laws; or fallen victim to an unconstitutional violation of separation of powers.

Transportation of a Minor

Section 2423 establishes four sex-related travel offenses and condemns attempts or conspiracies to commit them as well. Subsection 2423(a), which bans interstate or foreign transportation of a child under 18 years of age for criminal sexual purposes, carries a mandatory minimum sentence of imprisonment of 10 years; the same mandatory minimum applies to attempts or conspiracies to violate the subsection. The other three subsections—travel for illicit sexual purposes; travel and illicit sexual conduct overseas; and facilitation of travel for illicit sexual purposes—punish violations by imprisonment for not more than 30 years, with no minimum term of imprisonment required.

"To obtain a conviction under §2423(a), the government must prove beyond a reasonable doubt that the defendant: (1) knowingly transported a minor across state lines, (2) with the intent to engage in sexual activity with the minor, and (3) that the minor was under eighteen at the time of the offense." The government need not show that the defendant knew the minor was underage. Nor must it show that illicit sexual activity was the sole purpose or even the dominant purpose for the travel, as long as it constituted a significant consideration.

Travel to Sexually Abuse a Child

The Mann Act's prohibitions on an offender's travel for illicit sexual purposes carry no mandatory minimum penalties. However, chapter 109A, which ordinarily deals with prison and territorial offenses, provides for such a penalty. As noted earlier, subsection 2241(c) establishes a mandatory minimum sentence of imprisonment of not less than 30 years for "[w]hoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years ... or attempts to do so." Recidivists face a mandatory term of life imprisonment. Subsection 2241(d) provides that the government need not establish that the defendant knew that the victim was underage.

Commercial Sex Trafficking of a Child or by Force

Section 1591 of chapter 77 establishes a pair of mandatory minimum sentencing provisions when commercial sex trafficking occurs in or affecting interstate or foreign commerce or within the special maritime or territorial jurisdiction of the United States. One outlaws sex trafficking; the other profiting from it. In either case, violations are punishable by a fine and imprisonment for not less than 10 years, if the child is between the ages of 14 and 18 and no force or coercion is involved. Otherwise, violations are punishable by a fine and imprisonment for not less than 15 years.

Parsed to their elements the two offenses provide:

I.

(1) Whoever

(2)(A) in or affecting interstate or foreign commerce, or

(B) within the special maritime and territorial jurisdiction of the United States,

(3) knowingly

(4)(A) recruits,

(B) entices,

(C) harbors,

(D) transports,

(E) provides,

(F) obtains, or

(G) maintains by any means

(5) a person;

(6)(A) knowing, or

(B)in reckless disregard of the fact,

(7) that (A) means of force,

(B) threats of force,

(C) fraud,

(D) coercion, or

(E) any combination of such means

(8)(A) will be used to cause the person to engage in a commercial sex act, or

(B)(i) that the person has not attained the age of 18 years and

(ii) will be caused to engage in a commercial sex act....

II.

(1) Whoever

(2) knowingly

(3) benefits

(A) financially or

(B) by receiving anything of value,

(4) from participation in a venture in which

(A) a person was

(B)(i) recruited,

(ii) enticed,

(iii) harbored,

(iv) transported,

(v) provided,

(vi) obtained, or

(vii) maintained by any means

(C)(i) in or affecting interstate or foreign commerce, or

(ii) within the special maritime and territorial jurisdiction of the United States,

(5)(A) knowing, or

(B)in reckless disregard of the fact,

(6) that (A) means of force,

(B) threats of force,

(C) fraud,

(D) coercion, or

(E) any combination of such means

(7)(A) will be used to cause the person to engage in a commercial sex act, or

(B)(i) that the person has not attained the age of 18 years and

(ii) will be caused to engage in a commercial sex act....

The courts have held that the interstate commerce prong of the two offenses comes within the reach of Congress's authority to regulate interstate and foreign commerce. To pass muster, the defendant's misconduct must have at least some minimal effect on interstate or foreign commerce. The prosecution, however, need not prove that the defendant knew that his activities were occurring in or affecting commerce. Moreover, while as a general rule, the defendant must be shown to have known that his juvenile victim was underage, the statute relieves the government of the obligation, if the defendant has had sufficient opportunity to observe the victim and thus presumably to discern the victim's age.

Murder in the Course of Certain Sexual Offenses

Section 2245 establishes a mandatory minimum sentence of imprisonment for any term of years for murder committed during the course of a violation of sex trafficking (18 U.S.C. 1591), child pornography (18 U.S.C. 2251, 2251A, 2260), or Mann Act violations (18 U.S.C. 18 U.S.C. 2421, 2422, 2423, 2425), regardless of the age of the victim. Other sections of the Code establish a mandatory minimum term of life imprisonment for murder in the course of the other federal sex offenses, that is, those committed while in federal custody or within the special maritime or territorial jurisdiction of the United States. Section 2251 establishes a 30-year mandatory minimum term of imprisonment when the production of, attempted production of, or conspiracy to produce, child pornography results in a death.

Child Pornography

Four federal child pornography sections establish mandatory minimum terms of imprisonment for violations: 18 U.S.C. 2251 (relating to sexual exploitation of children), 18 U.S.C. 2251A (relating to selling or buying children), 18 U.S.C. 2252 (relating to certain activities relating to material involving sexual exploitation of children), and 18 U.S.C. 2252A (relating to certain activities relating to material constituting or containing child pornography).

Production of Child Pornography

Section 2251 creates a series of mandatory minimum terms of imprisonment for the production of, attempted production of, and conspiracy to produce, child pornography or related misconduct under various jurisdictional circumstances. First time offenders are punishable by a fine and imprisonment for not less than 15 years; offenders with a prior conviction face a fine and imprisonment for not less than 25 years; and offenders with two or more prior convictions must be fined and sentenced to imprisonment for at least 35 years. Should a death result from the commission of such offense, the offender must be imprisoned for at least 30 years.

Section 2251 outlaws four substantive offenses: the use of a child to produce child pornography, subsection 2251(a); the participation of a parent or other custodian of a child in such production, subsection 2251(b); the overseas production of such material, subsection 2251(c); and the advertising of such material, subsection 2251(d). Subsection 2251(e) applies the same penalties to attempts or conspiracies to commit any of the four substantive offenses.

The elements common to all four are a child under 18 years of age and at least the goal of creating a visual depiction of sexually explicit conduct of the child. A majority of courts have held that neither the statute nor the Constitution requires the prosecution to show that the defendant knew the child was underage and that mistake of age constitutes no defense.

"Visual depiction" includes photographs, video, and computer disks. "Sexually explicit conduct" is defined to encompass various sexual acts as well as "lascivious exhibition[s]" of an individual's pubic area. The lower federal appellate courts have endorsed the so-call Dost factors as a guide to determine when the otherwise lawful depiction of nudity has become a lascivious exhibition.

Subsection 2251(a): Use of a Child to Produce

Subsection 2251(a) outlaws employment, use, or inducement of a child to produce a visual depiction of sexually explicit conduct under a range of jurisdictional circumstances, or by virtue of subsection (e) attempting or conspiring to do so. The jurisdictional circumstances include interstate or territorial transportation of the child, anticipated or actual transmission or transportation of the depiction in or affecting interstate commerce, and use of materials transported in interstate commerce. The courts have held that subsection 2251(a) constitutes a valid exercise of Congress's legislative power under the commerce clause. Moreover, they have concluded that its mandatory minimum term of imprisonment does not offend the Eighth Amendment's prohibition against cruel and unusual punishments.

Subsection 2251(b): Permitting the Use of a Child to Produce

Subsection 2251(b) applies the mandatory minimums of subsection 2251(e) to a parent, or other custodian of a child under 18 years of age, who permits, attempts to permit, or conspires to permit a child to be used for the visual depiction of sexually explicit conduct under jurisdictional circumstances comparable to those that apply to subsection 2251(a). A related provision with a more substantial mandatory minimum sentence of imprison appears in 18 U.S.C. 2251A and differs primarily in its requirement of a transfer of custody or control.

Subsection 2251(c): Overseas Production

Subsection 2251(c) applies the mandatory minimums of subsection 2251(e) to the overseas use, attempted use, or conspiracy to use, a child in the visual depiction of sexually explicit conduct with the intent to transport, or the transportation of, the depiction into the United States.

Subsection 2251(d): Advertising

Subsection 2251(d) applies the mandatory minimums of subsection 2251(e) to anyone who "knowingly makes, prints, or publishes, or causes to be made, printed, published any notice or advertisement seeking or offering child pornography" or to anyone seeking or offering to participate in the production of child pornography under various jurisdictional circumstances. Federal jurisdiction exists if the notice or advertisement is transported or transmitted using the facilities of interstate commerce or the defendant anticipates that it will be. The notice or advertisement need not "specifically state that it offers or seeks a visual depiction to violate §2251(c)(1)(A)"; all that is required is that its implications are clear.

Selling or Buying Children for Pornographic Purposes

Section 2251A demands a mandatory minimum sentence of imprisonment of 30 years for those convicted of relinquishing or acquiring custody or control of a child under 18 years of age knowing or intending that the child will be used to produce visual depictions of sexually explicit conduct, under certain jurisdictional circumstances.

"Custody or control" is statutorily defined to "include[] temporary supervision over or responsibility for a minor whether legally or illegally obtained." "The statute does not require transfer of full parental authority; something less than the control a parent exercises—including ... limitations on time and scope—suffices to violate the law." Moreover, "the terms contained in the title of §2251A(b)—buying and selling—do not exclusively define the statute's reach." The statute's reach extends as well to instances where the defendant acquires custody or control of the child by paying the victim herself.

Federal jurisdiction over the offense exists if it occurred within the territorial jurisdiction of the United States, if it involved travel in or affecting interstate commerce, or if the offer was transported or transmitted through the facilities in or affecting interstate commerce.

Certain Activities Involving Child Pornography (Real Child)

Three of the four offenses created in 18 U.S.C. 2252 require imposition of a sentence of imprisonment for not less than 5 years: transportation, receipt, or possession with intent to sell, of visual depictions of sexually explicit conduct involving a child under 18 years of age—under various jurisdictional circumstances. Attempts or conspiracies to commit those offenses carry the same mandatory minimum penalties. Simple possession by a first time offender is not punishable by a mandatory minimum term of imprisonment. Defendants charged with any of the four offenses, who have a prior similar conviction, face increased mandatory minimum sentences of imprisonment.

Transporting

The mandatory minimum sentences of subsection 2252(b)(1) apply to those convicted of violating subsection 2252(a)(1) which outlaws the transportation or transmission of child pornography in or affecting interstate commerce or by using the facilities of interstate commerce. The mandatory minimum sentences apply as well to those convicted of attempting or conspiring to violate the subsection.

"Under Section 2252(a)(1), the government must prove that: (1) the defendant knowingly transported or shipped, (2) in interstate or foreign commerce, (3) any visual depiction involving the use of a minor engaging in sexually explicit conduct." The government must also prove that the visual depiction was of an actual child not a mere computer simulation, and that the defendant knew the child was underage.

Moreover, simply because the statute indicates that transportation may take the form of computer transmission "does not mean that use of a computer is a required element of the crime."

For purposes of subsection 2252(a)(1), "interstate commerce" includes commerce to and from the possessions and the territories of the United States, and "foreign commerce" includes travel between foreign nations by way of the United States. The government, however, need not prove that the defendants know of the interstate or foreign commercial nature of the transportation or shipment.

When the government seeks the 15-year recidivist mandatory minimum sentence and the "state law [upon which the prior conviction was based] covers conduct some of which is within, and the rest of which is outside, the scope of a recidivist statute, the federal court may examine the [state] charging papers (and any guilty-plea colloquy) to classify the conviction."

Receipt or Distribution

The same mandatory minimum terms of imprisonment apply when the defendant is convicted of receipt or distribution of, attempted receipt or distribution of, or conspiracy to receive or distribute, child pornography, under the same jurisdictional circumstances—not less than 15 years with a prior conviction; not less than 5 years otherwise.

"The elements of receipt under 18 U.S.C. 2252(a)(2) require the defendant to knowingly receive an item of child pornography, and the item to be transported in interstate or foreign commerce" or otherwise satisfy the subsection's jurisdictional requirements.

To be sure, the exact contours of the crime of "knowingly receiving" electronic child pornography in a constantly shifting technological background are murky. Part of the problem is that computers connected to the internet store vast quantities of data about which many users know nothing. As a user browses the internet, the computer stores images and text and other kinds of data in its temporary memory the way a ship passing through the ocean collects barnacles that cling to its hull. Thus, there is some risk that the computer of an internet user not intending to access child pornography may be infected with child pornography. Understandably, our sister circuits have struggled with whether to impute knowledge from the presence of illicit files found in such temporary storage.

Ultimately, the facts of a given case will determine whether the defendant is the unwitting victim of technology or knowingly received child pornography. The government's burden includes proving that the defendant knew that child depicted was real and underage.

For purposes of the jurisdictional element, "the government prove[s] images traveled interstate when it introduce[s] evidence that the defendant received images that were transmitted over the Internet."

To be guilty of attempted violation of subsection 2252(b)(2), the defendant must have intended to receive or distribute child pornography and taken a substantial step toward the achievement of that goal.

When a court faces the question of whether a defendant must be sentenced to the mandatory minimum 15-year term of imprisonment reserved for recidivists in a case where the prior conviction occurred under a statute proscribing both qualifying and non-qualifying offenses, the court "may refer to the charging document, the terms of a plea agreement, the transcript of the colloquy, jury instructions, and other comparable judicial records."

Sale or Possession With Intent to Sell

Subsection 2252(a)(3), which prohibits the sale of, or possession with intent to sell, child pornography under various jurisdiction circumstances, requires imposition of a 5-year mandatory minimum term of imprisonment as well (a minimum of 15 years for recidivists). The same penalties must be assessed upon conviction of an attempt or conspiracy to violate the subsection. Jurisdiction exists if the offense occurs within the special maritime and territorial jurisdiction of the United States, on a federal facility or Indian reservation. It also exists if interstate commerce is implicated in the offense.

Recidivist Possession

Recidivists in possession of child pornography must be sentenced to 10-year minimum term of imprisonment under subsection 2252(a)(4), as must a recidivist convicted of attempting or conspiring to violate the subsection. The necessary jurisdictional circumstances are the same as those which apply in the case of the sale offense under subsection 2252(a)(3).

Qualifying prior convictions may include convictions under either state or federal law. The offender's prior state conviction must be "related to" one of the statutorily described offenses and involve a minor, but the statute of conviction need not list a minor victim as an element of the offense. "[T]he sentencing court looks to the fact of conviction and the statutory definition of the prior offense and determines whether the full range of conduct encompassed by the statute qualifies to enhance the sentence." In this exercise, "[i]f the statute [of prior conviction] criminalizes both conduct that would qualify a defendant for an enhancement, as well as conduct that would not do so, the court may refer to the charging document, the terms of a plea agreement, the transcript of the colloquy, jury instructions, and the comparable judicial records to determine the basis for the guilty plea or verdict [in the prior case]."

Subsection 2252(a)(4) has two distinctive features. First, offenders are not subject to a mandatory minimum term of imprisonment, unless the recidivist provisions are tripped. Second, subsection 2252(c) provides a narrow explicit statutory defense, available when possession is minimal and the individual destroys the material or reveals it to authorities.

Certain Activities Involving Child Pornography (Real and Virtual)

Sections 2252 and 2252A were almost identical at one point. Section 2252 covered only visual depictions of sexual activity involving an actual child. Section 2252A covered visual depictions of sexual activity involving a digitally created child as well. Other changes have occurred over the years, but that essential distinction remains. So too do the mandatory minimum terms of imprisonment that attend comparable violations of either section.

At least a 5-year term of imprisonment must be imposed for a violation, attempt to violate, or conspiracy to violate any of five child pornography-related offenses found in subsection 2252A: transportation; receiving or distributing; reproducing or promoting; selling or possession with intent to sell; or providing to a child. Recidivists must be sentenced to imprisonment for not less than 15 years (not less than 10 years for a recidivist guilty of simple possession). As discussed below, a 20-year mandatory term of imprisonment attends conviction for a child exploitation enterprise offense involving multiple violations of subsection 2252A(a) and related child abuse offenses that involve several children and several collaborators.

Transporting

A 5-year mandatory term of imprisonment must be imposed on "[a]ny person who - (1) knowingly mails, or transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any child pornography." A mandatory 15-year term of imprisonment awaits recidivists.

The subsection's recently expanded jurisdictional statement ("using any means ... affecting ... commerce") eliminates the split among the lower federal appellate courts over whether the earlier version of the statute covered any Internet use, or use where actual interstate transportation can be shown. On the other hand, the use of a computer is not an element of the offense; the offense may be committed with or without the use of computer.

Defendants accused of violating the transportation prohibition of subsection 2252A(a)(1) enjoy a relatively narrow affirmative defense. The defense is available, if, after giving the required pre-trial notice, the defendant establishes that the alleged child pornography did not involve the use of a real child or the image of a real child.

Receipt or Distribution

Section 2252A punishes the knowing receipt or distribution of child pornography, committed under certain jurisdictional circumstances, with imprisonment for not less than 5 years. It punishes attempt and conspiracy in the same manner. It imposes a minimum 15-year term of imprisonment upon recidivists. The offense must be committed knowingly; inadvertent receipt is not a violation. Knowing violation occurs, for instance, when the defendant "intentionally views, acquires, or accepts child pornography on a computer from an outside source."

Attempted violation requires evidence of an intent to commit the offense and a substantial step beyond mere preparation toward that goal. Factual impossibility, such as the absence of a real child in a sting situation, poses no obstacle to conviction for attempt.

Possession of child pornography under subsection 2252A(a)(5) is a lesser included offense to the crime of receipt of child pornography under subsection 2252A(a)(2). The Constitution's double jeopardy clause thus precludes punishment under both subsections for the same misconduct. Punishment under both subsections is permissible, however, when each addresses a different violation. The double jeopardy clause may also bar punishment for receipt of child pornography under both subsection 2252(a)(2) and 2252A(a)(2), unless the offenses involve different violations; for example, the 2252A(a)(2) offense involves a digital image and the other involves a real child.

Reproduction or Promotion

Knowingly reproducing or promoting child pornography carries the same 5-year mandatory minimum term of imprisonment (15 years for recidivists). Reproduction and the promotion offenses are distinct. Both offenses, however, rest on a broad claim of federal jurisdiction: utilization of a means or facility "affecting interstate or foreign commerce" by any manner "including by computer."

The Supreme Court in Williams held that neither the reproduction nor promotion proscription violates either First Amendment over breadth restrictions or Fifth Amendment due process vagueness limitations. The Court dissected several of subsection 2252A(a)(3)'s features in the course of its analysis.

First, it observed that the knowledge requirement applies to both the reproduction and promotion offenses. Second, it said that the action elements of the promotion offense—"advertises, promotes, presents, distributes, or solicits"—bespeaks a transaction, although not necessarily a commercial transaction. "That is to say, the statute penalizes speech that accompanies or seeks to induce a transfer of child pornography—via production or physical delivery—from one person to another."

For the promotion offense, the advertisement, promotion, or presentation must be advanced with one of two intents: either "in a manner that reflects belief" that child pornography is being offered, or in a manner that is calculated to induce another to believe child pornography is being offered. As for the first, the manner of advertisement, promotion, or presentation "must objectively manifest a belief that the material is child pornography; a mere belief, without an accompanying statement or action that would lead a reasonable person to understand that the defendant holds that belief, is insufficient." As for the second, "the defendant must 'intend' that the listener believe the material to be child pornography, and must select a manner of 'advertising, promoting, presenting, distributing, or soliciting' the material that he thinks will engender the belief—whether or not a reasonable person would think the same."

Defendants charged with the reproduction offense may invoke the narrow affirmative defense covering pornography that involves only adults; defendants charged with the promotion offense may not.

Sale or Intent to Sell

The same 5- and 15-year mandatory minimum terms of imprisonment follow conviction for selling or possession with intent to sell child pornography if committed under a wide range of jurisdictional circumstances, or for attempting or conspiring to do so. Jurisdiction exists if the offense occurs on federal enclaves or facilities or in Indian country. It also exists if the offense involves transportation using a means or facility in or affecting interstate or foreign commerce. The affirmative defense available when children have not been used in the pornography may be claimed by defendants charged with selling or intent to sell child pornography.

Offering Child Pornography to a Child

Section 2252A requires a fine and a minimum term of imprisonment of 5 years for offering child pornography to a child with the intent to induce the child to engage in illegal activity, or attempting or conspiring to do so. It requires a fine and a minimum term of 15 years for recidivists. The offense is punishable if the offer, the pornography, or the material used to produce the pornography, was transported using a means or facility in or affecting interstate or foreign commerce. The defendants charged under the offering offense of subsection 2252A(a)(6) may not claim the affirmative defense available elsewhere for when the pornography involves only adults.

Recidivist Possession

There is no mandatory minimum term of imprisonment for conviction of simple possession of child pornography. However, there is a 10-year mandatory minimum term of imprisonment for conviction of possession by a recidivist. The possession which triggers the minimum sentence may occur in Indian country or on federal enclaves or facilities. Interstate commerce may also provide a basis for jurisdiction. Defendants charged with possession may assert the affirmative, adults-only pornography defense, if they do so in a timely fashion.

Child Molesting Enterprises

Subsection 2252A(g) outlaws "child exploitation enterprises," a crime punishable by a fine and imprisonment "for any term of years not less than 20 or for life." The crime's federal predicate felony offenses include not only pornography, but sex trafficking, kidnaping a child, sex abuse of a child, and Mann Act violations involving a child. More precisely, the penalty applies to:

(1) Whoever

(2) in concert with three or more other persons

(3) commits a series of predicate offenses

(4) constituting three or more separate incidents

(5) involving more than one victim

(6) when the predicate offenses involve felony violations of:

18 U.S.C. 1591 (relating to sex trafficking of a child or by force)

18 U.S.C. 1201 (relating to kidnaping of a child)

18 U.S.C. ch. 109A (relating to sexual abuse of a child)

18 U.S.C. ch. 110 (relating to pornography but not including record-keeping violations), or

18 U.S.C. ch. 117 (relating to sex offenses involving travel).

Each predicate offense need not involve more than one victim nor be committed in concert with three other offenders; it is enough that the series of predicate offenses, taken in total involve more than one victim and three or more other offenders. The Constitution's double jeopardy clause bars punishment for both a violation of subsection 2252A(g) and for conspiracy to violate the underlying predicate offenses.

Sentencing Commission

A majority of the judges responding to the Sentencing Commission survey thought that the mandatory minimum sentences for production and distribution of child pornography and other child exploitation offenses were generally appropriate. Well over two-thirds, however, considered those for receipt of child pornography too high.

The Commission's report on mandatory minimum sentencing statutes noted that its "review of available sentencing data [relating to sex offenses] indicates that further study of these penalties is needed before it can offer specific recommendations in this area." It concluded preliminarily, however, that "the mandatory minimum penalties for certain non-contact child pornography offenses may be excessively severe and as a result are being applied inconsistently."

Identity Theft

Aggravated identity theft is punishable by imprisonment for two years, and by imprisonment for five years if the offense involves a federal crime of terrorism. Aggravated identity theft only occurs when the identity theft happens "during and in relation" to one of several other federal crimes. It has the effect of establishing a mandatory minimum for each of those predicate offenses that would not otherwise exist.

More than half of the judges who responded to a United States Sentencing Commission survey felt that the two-year mandatory minimum was a generally appropriate sentence. The Sentencing Commission's report on mandatory minimum penalties makes little if any mention of the five-year terrorism penalty and instead directs its attention to the two-year identity theft mandatory minimum. The Commission further confines itself to comparatively complimentary observations rather than recommendations, due to the provision's relatively recent emergence and its somewhat unique characteristics.

Section 1028A, parsed to its elements, declares:

- Whoever

- during and in relation to

- any felony enumerated in

—subsection (c) [predicate offense], [or]

—section 2332b(g)(5)(B) [predicate terrorist offense]

- knowingly

- transfers, possesses, or uses

- without lawful authority

- a means of identification

- of another person

shall, in addition to the punishment provided for such [predicate offense or predicate terrorist offense], be sentenced to a term of imprisonment of 2 years [or a term of imprisonment of 5 years in the case of terrorist predicate offense].

Whoever

Section 1028A only punishes aggravated identity theft by individuals. Most federal crimes outlaw misconduct by both individuals and organizations, such as corporations, firms, and other legal entities. The Dictionary Act explains that "[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise … the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." Section 1028A is one of those situations when "the context indicates otherwise."

Entities other than individuals can be fined, but they cannot be imprisoned. Section 1028A punishes violations with a flat term of imprisonment, but no fine. Thus, only individuals may be punished for violating the section. For the same reason, persons other than individuals may not incur criminal liability indirectly as principals under 18 U.S.C. 2. Principals are subject to the same penalties, in this case only imprisonment.

Persons other than individuals may, however, incur criminal liability as conspirators. The federal conspiracy statute outlaws conspiracy to commit any federal crime, including aggravated identity theft. It makes conspiracy punishable by both a fine and a term imprisonment. Thus, it seems possible for a person other than an individual to incur criminal liability for conspiracy to commit aggravated identity theft.

During and in Relation to

The phrase "during and in relation to" describes the connection, necessary for a violation under the section, between the predicate offense and the other identity theft elements. The phrase also appears in the mandatory minimums of 18 U.S.C. 924(c) that apply when a firearm is used "during and in relation to" certain crimes of violence or drug trafficking.

There, the Supreme Court has said the "in relation to" portion of the phrase requires that the firearm "must facilitate or have the potential of facilitating" the predicate offense. This suggests that the "phrase 'in relation to' in §1028A … means that the 'in relation to' element is met if the identity theft 'facilitates or has the potential of facilitating' that predicate felony." Whether the identity theft occurs "during" the predicate offense depends on the duration of the predicate offense.

Subsection (c) Felony Predicates

Section 1028A recognizes two classes of predicate offenses—one of which involves terrorist offenses and carries a five-year term of imprisonment; the other of which does not and carries a two-year term. Proof of the commission of one of the qualifying predicate offenses is an element of aggravated identity theft. The defendant, however, need not otherwise be charged or convicted of the predicate offense. Moreover, the Constitution's double jeopardy clause, which prohibits multiple punishments for the same offense, bars prosecution for both aggravated identity theft and the parallel identity theft provision. Attached is the list of more than 60 federal theft, fraud, immigration, and related felonies for which the two-year mandatory minimum sentencing provision provides a sentencing floor when identity theft is involved.

Federal Crimes of Terrorism Predicates

The terrorist predicate offenses are the federal crimes of terrorism, listed in 18 U.S.C. 2332b(g)(5)(B), regardless of whether the predicate offense was committed for a terrorist purpose. A list of the close to 50 terrorist predicate offenses also appears below as an attachment. The five-year aggravated identity theft offense seems to have been infrequently prosecuted thus far.

Knowingly

The Supreme Court in Flores-Figueroa made clear that the knowledge element colors each of the other elements. The government must prove that the defendant was aware that he transferred, possessed, or used something. It must prove that the defendant was aware that he was doing so without lawful authority. Finally, it must prove that the defendant was aware that the something he unlawfully possessed, transferred, or used was that of another person.

Transfers, Possesses, or Uses

What constitutes a proscribed transfer, possession, or use appears to have been a matter of dispute only rarely, perhaps because of the limitations posed by the other elements. For example, the requirement that possession be knowing and in relation to a predicate offense cabins the otherwise natural scope of the term "possession."

Without Lawful Authority

The "lawful authority" element addresses whether the law permits the defendant to use the identification of another, not whether the defendant has the permission of another to borrow the means of identification. Thus, "the use of another person's social security number to commit a qualifying felony, even with that person's permission, serve[s] as use 'without lawful authority' in violation of §1028A." Moreover, a defendant may be guilty of using the means of identity of another without lawful authority for certain purposes, even though he has lawful authority to use the identification for other purposes.

A Means of Identification

The term "means of identification" in the aggravated identify theft provision draws its meaning from the definition of that term in the generic identity theft provision, 18 U.S.C. 1028. "The 'overriding requirement' of [that] definition is that the means of identification 'must be sufficient to identify a specific individual.'" One court has suggested that use of no more than the name of another would be insufficient, but others have indicated that forging the signature of another constitutes use of the means of identification of another without lawful authority.

Of Another Person

The statute does not extend to the use of a "fake ID" that does not identify with a real person. On the other hand, the "other person" element reaches both the living and dead. Moreover, although only an individual may engage in aggravated identity theft, the victim of such a theft might well include persons who are legal entities rather than individuals.

Sentencing

Aggravated identity theft sentencing is distinctive in a number of ways. First, violations carry a flat mandatory two-year sentence of imprisonment or a flat mandatory five years for terrorism related offenses. Most federal criminal statutes provide a maximum term of imprisonment ("shall be imprisoned for not more than … "). If they require a mandatory minimum sentence, it is usually well below the maximum ("shall be imprisoned not less than … ") or the maximum is unstated.

Second, it explicitly states that the sentence imposed for the predicate offenses may not be reduced to account for the mandatory minimum. Third, it explicitly states that as a general rule the two- or five-year sentence may not be served concurrently with any sentence imposed for the predicate offense or another. Finally, it establishes an exception to the general rule under which multiple mandatory minimum sentences under the section may be served concurrently at the discretion of the court when consistent with the Sentencing Guidelines.

The Sentencing Guidelines suggest that in exercising its discretion as to whether to impose consecutive or concurrent sentences for multiple aggravated identity theft violations, a court should consider the statutory sentencing factors mentioned in 18 U.S.C. 3553(a)(2), as well as the nature and seriousness of the offense and the extent to which predicate offenses are related. If the purposes of subsection 3553(a)(2) are better served by imposing consecutive sentences, the court may do so even if the predicate offenses are "grouped" (i.e., are closely related).

As in the case of other mandatory minimum sentencing statutes, a court may sentence a defendant convicted of aggravated identity theft to a term of less than two years pursuant to subsection 3553(e). The prosecution must seek the exception, which is only available on the basis of the defendant's substantial assistance in the investigation or prosecution of a federal crime.

Sentencing Commission Report

The Sentencing Commission's assessment of sentencing under the provision is guardedly laudatory: "The problems associated with certain mandatory minimum penalties are not observed, or are not as pronounced, in identity theft offenses. The Commission believes this is due, in part, to 18 U.S.C. §1028A requiring a relatively short mandatory penalty and not requiring stacking of penalties for multiple counts. The statute is relatively new and is used in only a handful of districts, however, so specific findings are difficult to make at this time."

Attachments

Two-Year Predicate Offenses

18 U.S.C. 641 (relating to theft of public money, property, or rewards),

18 U.S.C. 656 (relating to theft, embezzlement, or misapplication by bank officer or employee),

18 U.S.C. 664 (relating to theft from employee benefit plans),

18 U.S.C. 911 (relating to false personation of citizenship),

18 U.S.C. 922(a)(6) (relating to false statements in connection with the acquisition of a firearm),

18 U.S.C. ch. 47 (any provision contained in this chapter (relating to fraud and false statements), other than this section (section 1028A) or section 1028(a)(7):

18 U.S.C. 1001 (relating to false statements or entries generally),

18 U.S.C. 1002 (relating to possession of false papers to defraud United States),

18 U.S.C. 1003 (relating to demands against the United States involving $1,000 or more),

18 U.S.C. 1004 (relating to certification of checks),

18 U.S.C. 1005 (relating to bank entries, reports and transactions),

18 U.S.C. 1006 (relating to Federal credit institution entries, reports and transactions),

18 U.S.C. 1007 (relating to Federal Deposit Insurance Corporation transactions),

18 U.S.C. 1010 (relating to Department of Housing and Urban Development and Federal Housing Administration transactions),

18 U.S.C. 1011 (relating to Federal land bank mortgage transactions),

18 U.S.C. 1014 (relating to loan and credit applications generally; renewals and discounts; crop insurance),

18 U.S.C. 1015 (relating to naturalization, citizenship or alien registry),

18 U.S.C. 1016 (relating to acknowledgment of appearance or oath),

18 U.S.C. 1017 (relating to government seals wrongfully used and instruments wrongfully sealed),

18 U.S.C. 1019 (relating to certificates by consular officers),

18 U.S.C. 1020 (relating to highway projects),

18 U.S.C. 1021 (relating to title records),

18 U.S.C. 1022 (relating to delivery of certificate, voucher, receipt for military or naval property),

18 U.S.C. 1023 (relating to insufficient delivery of money or property for military or naval service),

18 U.S.C. 1024 (relating to purchase or receipt of military, naval, or veteran's facilities property),

18 U.S.C. 1025 (relating to false pretenses on high seas and other waters involving $1,000 or more),

18 U.S.C. 1027 (relating to false statements and concealment of facts in relation to documents required by the Employee Retirement Income Security Act of 1974),

18 U.S.C. 1028 (relating to felony violations involving fraud and related activity in connection with identification documents and information),

18 U.S.C. 1029 (relating to fraud and related activity in connection with access devices),

18 U.S.C. 1030 (relating to felony violations involving fraud and related activity in connection with computers,

18 U.S.C. 1031 (relating to major fraud against the United States),

18 U.S.C. 1032 (relating to concealment of assets from conservator, receiver, or liquidating agent of financial institution),

18 U.S.C. 1033 (relating to crimes by or affecting persons engaged in the business of insurance whose activities affect interstate commerce),

18 U.S.C. 1035 (relating to false statements relating to health care matters),

18 U.S.C. 1036 (relating to entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport or seaport),

18 U.S.C. 1036 (relating to fraud and related activity in connection with electronic mail),

18 U.S.C. 1038 (relating to false information and hoaxes),

18 U.S.C. 1039 (relating to fraud and related activity in connection with obtaining confidential phone records information of a covered entity),

18 U.S.C. 1040 (relating to fraud in connection with major disaster or emergency benefits),

18 U.S.C. ch. 63 (any provision contained in chapter 63 (relating to mail, bank, and wire fraud);

18 U.S.C. 1341 (relating to mail fraud),

18 U.S.C. 1342 (relating to fraudulent use of false name or address for postal purposes),

18 U.S.C. 1343 (relating to wire fraud),

18 U.S.C. 1344 (relating to bank fraud),

18 U.S.C. 1347 (relating to health care fraud),

18 U.S.C. 1348 (relating to securities fraud),

18 U.S.C. 1349 (relating to attempts or conspiracies to violate the provisions of chapter 63),

18 U.S.C. 1350 (relating to certification of corporate financial reports),

18 U.S.C. 1351 (relating to fraud in foreign labor contracting),

18 U.S.C. ch. 69 (any provision contained in chapter 69 (relating to nationality and citizenship);

18 U.S.C. 1421 (relating to accounts of court officers),

18 U.S.C. 1422 (relating to fees in naturalization proceedings),

18 U.S.C. 1423 (relating to misuse of evidence of citizenship or naturalization),

18 U.S.C. 1424 (relating to misuse of papers in naturalization proceedings),

18 U.S.C. 1425 (relating to procurement of citizenship or naturalization unlawfully),

18 U.S.C. 1426 (relating to reproduction of naturalization or citizenship papers),

18 U.S.C. 1427 (relating to sale of naturalization or citizenship papers),

18 U.S.C. 1428 (relating to surrender of canceled naturalization certificate),

18 U.S.C. 1429 (relating to neglect or refusal to answer naturalization-related subpoena)

18 U.S.C. ch. 75 (any provision contained in chapter 75 (relating to passports and visas);

18 U.S.C. 1541 (relating to issuance without authority),

18 U.S.C. 1542 (relating to false statement in application and use of passport),

18 U.S.C. 1543 (relating to forgery or false use of passport),

18 U.S.C. 1544 (relating to misuse of passport),

18 U.S.C. 1545 (relating to safe conduct violation),

18 U.S.C. 1546 (relating to fraud and misuse of visas, permits, and other documents),

15 U.S.C. 6823 (section 523 of the Gramm-Leach-Bliley Act (relating to obtaining customer information by false pretenses)),

8 U.S.C. 1253 (section 243 of the Immigration and Nationality Act (relating to willfully failing to leave the United States after deportation)),

8 U.S.C. 1306 (section 266 of the Immigration and Nationality Act (relating to creating a counterfeit alien registration card)),

8 U.S.C. ch.12 (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);

8 U.S.C. 1321 (relating to prevention of unauthorized landing of aliens),

8 U.S.C. 1324c(e) (relating to document fraud),

8 U.S.C. 1325 (relating to marriage fraud),

8 U.S.C. 1326 (relating to reentry of removed aliens),

8 U.S.C. 1327 (relating to aid or assisting certain aliens to enter),

8 U.S.C. 1328 (relating to importation of alien for immoral purpose)

42 U.S.C. 408 (section 208 of the Social Security Act (relating to penalties for miscellaneous misconduct)),

42 U.S.C. 1011 (section 811 of the Social Security Act (relating to fraud)),

42 U.S.C. 1307(b) (section 1107(b) of the Social Security Act (relating to false statements)),

42 U.S.C. 1320a-7b(a) (section 1128B(a) of the Social Security Act (relating to fraud),

42 U.S.C. 1383a (section 1632 of the Social Security Act (relating to fraud)).

Terrorist Predicate Offenses

18 U.S.C. 32 (relating to destruction of aircraft or aircraft facilities),

18 U.S.C. 37 (relating to violence at international airports),

18 U.S.C. 81 (relating to arson within special maritime and territorial jurisdiction),

18 U.S.C. 175 or 175b (relating to biological weapons),

18 U.S.C. 175c (relating to variola virus),

18 U.S.C. 229 (relating to chemical weapons),

18 U.S.C. 351 (a), (b), (c), (d) (relating to congressional, cabinet, and Supreme Court killing, kidnaping, or attempts or conspiracies to kill or kidnap),

18 U.S.C. 831 (relating to nuclear materials),

18 U.S.C. 832 (relating to participation in nuclear and weapons of mass destruction threats to the U.S.)

18 U.S.C. 842(m) or (n) (relating to plastic explosives),

18 U.S.C. 844(f)(2) or (3) (relating to arson and bombing of Federal property risking or causing death),

18 U.S.C. 844(i) (relating to arson and bombing of property used in interstate commerce),

18 U.S.C. 930(c) (relating to killing or attempted killing during an attack on a Federal facility with a dangerous weapon),

18 U.S.C. 956(a)(1) (relating to conspiracy to murder, kidnap, or maim persons abroad),

18 U.S.C. 1030(a)(1) (relating to protection of computers),

18 U.S.C. 1030(a)(5)(A) resulting in damage as defined in 1030(c)(4)(A)(i)(II) through (VI) (relating to protection of computers),

18 U.S.C. 1114 (relating to killing or attempted killing of officers and employees of the United States),

18 U.S.C. 1116 (relating to murder or manslaughter of foreign officials, official guests, or internationally protected persons),

18 U.S.C. 1203 (relating to hostage taking),

18 U.S.C. 1361 (relating to government property or contracts),

18 U.S.C. 1362 (relating to destruction of communication lines, stations, or systems),

18 U.S.C. 1363 (relating to injury to buildings or property within special maritime and territorial jurisdiction of the United States),

18 U.S.C. 1366(a) (relating to destruction of an energy facility),

18 U.S.C. 1751(a), (b), (c), or (d) (relating to Presidential and Presidential staff killing, kidnaping, or attempts or conspiracies to kill or kidnap),

18 U.S.C. 1992 (relating to terrorist attacks and other acts of violence against mass transit)

18 U.S.C. 2155 (relating to destruction of national defense materials, premises, or utilities),

18 U.S.C. 2156 (relating to national defense material, premises, or utilities),

18 U.S.C. 2280 (relating to violence against maritime navigation),

18 U.S.C. 2281 (relating to violence against maritime fixed platforms),

18 U.S.C. 2332 (relating to certain homicides and other violence against U.S. nationals occurring outside of the U.S.),

18 U.S.C. 2332a (relating to use of weapons of mass destruction),

18 U.S.C. 2332b (relating to acts of terrorism transcending national boundaries),

18 U.S.C. 2332f (relating to bombing of public places and facilities),

18 U.S.C. 2332g (relating to missile systems designed to destroy aircraft),

18 U.S.C. 2332h (relating to radiological dispersal devices),

18 U.S.C. 2339 (relating to harboring terrorists),

18 U.S.C. 2339A (relating to providing material support to terrorists),

18 U.S.C. 2339B (relating to providing material support to terrorist organizations),

18 U.S.C. 2339C (relating to financing of terrorism),

18 U.S.C. 2339D (relating to military-type training from a foreign terrorist organization),

18 U.S.C. 2340A (relating to torture),

21 U.S.C. 960a (section 1010A of the Controlled Substances Import and Export Act) (relating to narco-terrorism),

42 U.S.C. 2122 (section 92 of the Atomic Energy Act of 1954)(relating to prohibitions governing atomic weapons)

42 U.S.C. 2284 (section 236 of the Atomic Energy Act of 1954 (relating to sabotage of nuclear facilities or fuel)

49 U.S.C. 46502 (relating to aircraft piracy),

49 U.S.C. 46504 (second sentence)(relating to assault on a flight crew with a dangerous weapon),

49 U.S.C. 46505(b)(3) or (c) (relating to explosive or incendiary devices, or endangerment of human life by means of weapons, on aircraft),

49 U.S.C. 46506 (if homicide or attempted homicide is involved)(relating to application of certain criminal laws to acts on aircraft),

49 U.S.C. 60123(b) (relating to destruction of interstate gas or hazardous liquid pipeline facility).

Three Strikes (18 U.S.C. 3559(c))

A defendant convicted of a federal "serious violent felony" must be sentenced to life imprisonment under the so-called three strikes law, 18 U.S.C. 3559(c), if he has two prior state or federal violent felony convictions or one such conviction and a serious drug offense conviction.

Over 60% of the federal district court judges responding to the Sentencing Commission survey indicated they considered federal mandatory minimum sentences too high. Although the survey asked specifically about sentences under other mandatory minimum statutes, it provided no opportunity for a response focused on section 3559(c).

Notice and Objections

Section 3559(c) requires prosecutors to follow the notice provisions of 21 U.S.C. 851(a), if they elect to ask the court to sentence a defendant under the three strikes provision. Section 851(a), in turn, requires prosecutors to notify the court and the defendant of the government's intention to seek the application of section 3559(c) and the description of the prior convictions upon which the government will rely. Without such notice, the court may not impose an enhanced sentence. The purpose of the requirement "is to ensure the defendant is aware before trial that he faces possible sentence enhancement as he assesses his legal options and to afford him a chance to contest allegations of prior convictions." As long as that dual purpose is served, however, a want of meticulous compliance or complete accuracy will not preclude enhanced sentencing. The objections most often raised are constitutional challenges and those that question the qualifications of prior convictions as predicate offenses.

Predicate Offenses

Serious Drug Offenses

Serious drug offenses for purposes of section 3559(c) consist of (a) federal drug kingpin offenses; (b) the most severely punished of the federal drug trafficking offenses; (c) the smuggling counterpart of the such trafficking offenses; and (d) state equivalents of any of these three. When the prosecution relies upon a state drug trafficking conviction, for example, it must show that the amount of drugs involved warranted treating it as an equivalent.

Serious Violent Felonies

The federal three strikes provision recognizes convictions for two categories of serious violent felonies—one enumerated, the other general. The inventory of enumerated serious violent felonies consists of the federal or state crimes of:

- murder (as described in section 1111);

- manslaughter other than involuntary manslaughter (as described in section 1112);

- assault with intent to commit murder (as described in section 113(a));

- assault with intent to commit rape; aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242);

- abusive sexual contact (as described in sections 2244(a)(1) and (a)(2);

- kidnapping;

- aircraft piracy (as described in section 46502 of Title 49);

- robbery (as described in section 2111, 2113, or 2118);

- carjacking (as described in 2119);

- extortion;

- arson;

- firearms use;

- firearms possession (as described in section 924(c)); or

- attempt, conspiracy, or solicitation to commit any of the above offenses.

The more general, unenumerated category consists of "any other [state or federal] offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense."

There are statutory exceptions for both categories. Among the enumerated offenses, arson offenses do not qualify as predicate offenses, if the defendant can establish by clear and convincing evidence that he reasonably believed the offense posed no threat to human life and that it in fact did not. Moreover, neither robbery, attempted robbery, conspiracy to commit robbery, nor solicitation to commit robbery qualify, if the defendant can establish by clear and convincing evidence that the offense involved neither the use nor threatened use of a dangerous weapon and that no one suffered serious bodily injury as a consequence of the crime.

Among the unenumerated offenses, this same no-weapon, no-injury standard applies—those otherwise qualifying 10-year felonies, marked by the use or threatened use of physical force against another, do not qualify as predicate offenses, if the defendant can establish by clear and convincing evidence that no weapon was used, and no injury sustained, in the course of the offense.

The question of what constitutes a conviction for an unenumerated "serious violent felony" under §3559(c) seems to have proven as perplexing as what constitutes a "violent felony" conviction under the Armed Career Criminal Act (ACCA). Recent Supreme Court construction of the term "violent felony" in the ACCA may provide clarification for future cases arising under section 3559(c).

Constitutional Considerations

Defendants sentenced under §3559(c) have raised many of the same constitutional arguments asserted by defendants subject to other mandatory minimum sentences. Here too, their arguments have been largely unavailing. Almendarez-Torres blocks the contention that prior convictions must be noted in the indictment and proven to the jury beyond a reasonable doubt. Defendants who claimed that §3559(c) has a disparate racial impact and therefore offends equal protection have been unable to show, as they must, that it was crafted for that purpose. The Eighth Amendment's grossly disproportionate standard has proven too formidable for defendants sentenced under the section to overcome. The courts remain to be convinced that the mandatory minimum features of the section pose any separation of powers impediments. Defendants who invoke double jeopardy have been reminded that "the Supreme Court has long since determined that recidivist statutes do not violate double jeopardy because 'the enhanced punishment imposed for the later offense is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.'" Much the same response has awaited those in §3559(c) cases who seek refuge in ex post facto, "the use of predicate felonies to enhance a defendant's sentence does not violate the Ex Post Facto Clause because such enhancements do not represent additional penalties for earlier crimes, but rather stiffen the penalty for the latest crime committed by the defendant."

List of Federal Mandatory Minimum Sentencing Statutes

(* Mandatory Minimum Term of Imprisonment or a Fine)

(+ Safety Valve Offenses)

Imprisonment for Not Less Than a Specified Term of Years or Life

2 U.S.C. 192 (contempt of Congress: imprisonment for not less than 1 nor more than 12 months)

2 U.S.C. 390 * (contempt of Congress in a contested election case: imprisonment for not less than 1 nor more than 12 months or a fine of not less than $100 nor more than $1,000)

7 U.S.C. 13a * (failure to comply with certain Commodities Futures Exchange Commission cease and desist orders: a fine of not more than $500,000 or imprisonment for not less than 6 months nor more than 1 year or both) (+ imprisonment at the discretion of the court)

7 U.S.C. 15b* (violation of regulations relating to cotton futures contracts: a fine of not less than $100 nor more than $500 and at the discretion of the court imprisonment for not less than 30 nor more than 90 days)

7 U.S.C. 195 * (failure to comply with certain orders of the Secretary under the Packers and Stockyards Act: a fine of not less than $500 nor more than $10,000, or imprisonment for not less than 6 months nor more than 5 years or both) (+ imprisonment at the discretion of the court)

7 U.S.C. 2024 (2d conviction for fraudulent use of a food stamp access device worth between $100 and $5,000: imprisonment for not less than 6 months nor more than 5 years)

8 U.S.C. 1324 (unlawfully bringing in aliens for profit or knowing the alien will commit a felony within the U.S.: a fine and imprisonment for not less than 3 nor more than 10 years (1 st and 2d violations) and imprisonment for not less than 5 nor more than 15 years (3d and subsequent violations))

8 U.S.C. 1326(b)(3) (reentry of certain aliens after exclusion or removal: imprisonment for 10 years)

8 U.S.C. 1534* (disclosure of classified information by a special attorney in immigration removal cases: imprisonment for not less than 10 nor more than 25 years)

12 U.S.C. 617 * (price fixing by officers of corporations organized to do foreign banking: a fine of not less than $1,000 nor more than $5,000 or imprisonment for not less than 1 nor more than 5 years, or both in the discretion of the court)

12 U.S.C. 630 (embezzlement by officers of corporations organized to do foreign banking: imprisonment for not less than 2 nor more than 10 years)

15 U.S.C. 8 * (trusts in restraint of import trade: a fine of not less than $100 nor more than $5,000 and imprisonment, in the discretion of the court, for a term not less than three months nor exceeding twelve months)

15 U.S.C. 1245* (possession of a ballistic knife during the commission of a federal crime of violence: imprisoned not less than five years and not more than ten years, or both)

16 U.S.C. 413 * (damaging structures or vegetation on a national military park: a fine of not more than $1,000 or imprisonment for not less than 5 nor more than 30 days or both)

16 U.S.C. 414 * (trespassing for hunting purposes on a national military park: a fine of not more than $1,000 or imprisonment for not less than 5 nor more than 30 days or both)

18 U.S.C. 33 (destruction of commercial motor vehicles or their facilities involving high-level radioactive waste: any term of years but not less than 30 years)

18 U.S.C. 175c(c)(1) (unlawful possession of variola virus: imprisonment for not less than 25 years or for life)

18 U.S.C. 175c(c)(2) (unlawful use, attempted use, or possession and threat to use variola virus: imprisonment for not less than 30 years or for life)

18 U.S.C. 225 (continuing financial crimes enterprise: imprisonment for not less than 10 years and "may be life")

18 U.S.C. 844(f)* (burning or bombing federal property: imprisonment for not less than 5 years nor more than 20 years; not less than 7 nor more than 40 years' imprisonment if the offense involves personal injury or a substantial risk of personal injury; if death results, death or imprisonment for not less than 20 years or life)

18 U.S.C. 844(h) (use of fire or explosives to commit a federal felony or possession of explosives during the commission of a federal felony: imprisonment for 10 years' for 1 st offense, 20 for the second and any subsequent offense)

18 U.S.C. 844(i)* (burning or bombing property affecting interstate commerce: imprisonment for not less than 5 years nor more than 20 years; not less than 7 nor more than 40 years' imprisonment if the offense involves personal injury or a substantial risk of personal injury; if death results, death or imprisonment for not less than 20 years or life)

18 U.S.C. 844(o) (transfer of explosives knowing they will be used to commit a crime of violence or drug trafficking offense: imprisonment for 10 years for 1 st offense, 20 for the second and any subsequent offense)

18 U.S.C. 924(c)(1) (use of or possession of a firearm during the commission of a crime of violence or drug trafficking: imprisonment for not less 5 years generally; imprisonment for not less than 7 years if the firearm is brandished; imprisonment for not less than 10 years if the firearm is discharged or involves a short-barreled rifle or shotgun; imprisonment for not less than 25 years for second or subsequent offenses; imprisonment for not less than 30 years for a machinegun or silencer; life imprisonment for second or subsequent machinegun or silencer offense)

18 U.S.C. 924(c)(5) (possession or use of armor piercing ammunition during the commission of a crime of violence or drug trafficking: not less than 15 years' imprisonment)

18 U.S.C. 924(e)(1) (possession of firearm by a three time violent felony or serious drug dealer: not less than 15 years' imprisonment)

18 U.S.C. 929 (use of armor piercing ammunition during the commission of a crime of violence or drug trafficking: not less than 5 years)

18 U.S.C. 1028A (aggravated identity theft in furtherance of designated predicate offenses: imprisonment for 5 years if the predicate offense is a federal crime of terrorism; imprisonment for 2 years if the predicate offense is not a federal crime of terrorism)

18 U.S.C. 1121(b) (killing a state law enforcement officer by a federal prisoner or while transferring a prisoner interstate: not less than 20 years and may be punishable by death or life imprisonment)

18 U.S.C. 1122* (selling HIV infected blood: not less than 1 nor more than 10 years)

18 U.S.C. 1591 (sex trafficking using force or children, imprisonment for any term of years not less than 10 years or for life; not less than 15 years or for life if the child is under 14 years of age at the time)

18 U.S.C. 1658(b)* (causing a shipwreck for plunder or preventing escape from a shipwreck: imprisonment for not less than 10 years)

18 U.S.C. 1917 * (interfering with civil service examinations: imprisonment for not less than 10 days nor more than 1 year or a fine of not less than $100 or both)(+ imprisonment at the discretion of the court)

18 U.S.C. 1992 (wrecking a train carrying high level radioactive waste or spent nuclear fuel: imprisonment for any term of years not less than 30 or for life)

18 U.S.C. 2113(e) (killing or hostage taking during the course of robbing a federally insured bank: not less than 10 years; death or life imprisonment if death results)

18 U.S.C. 2250 (unregistered sex offender who commits a federal crime of violence: imprisonment for not less than 5 years nor more than 30 years)

18 U.S.C. 2251 (sexual exploitation of children: imprisonment for not less than 15 nor more than 30 years; upon a 2d conviction, imprisonment for not less than 25 nor more than 50 years; upon a 3d conviction, imprisonment for not less than 35 years nor more than life; where death results, death or imprisonment for any term of years not less than 30 years or life)

18 U.S.C. 2251A (selling or buying a child for purposes sexual exploitation: imprisonment for not less than 30 years or for life)

18 U.S.C. 2252(b)(1) (trafficking in material related to sexual exploitation of children: imprisonment for not less than 5 nor more than 20 years; 2d and subsequent offenses, not less than 15 years nor more than 40 years)

18 U.S.C. 2252(b)(2) (possession of pornography depicting a child under 12 years of age by an offender with a prior similar conviction: imprisonment for not less than 10 nor more than 20 years)

18 U.S.C. 2252A(b)(1) (trafficking in material related to sexual exploitation of children including by computer: imprisonment for not less than 5 nor more than 20 years; 2d and subsequent offenses, not less than 15 years nor more than 40 years)

18 U.S.C. 2252A(b)(2) (2d or subsequent conviction for possession of child pornography: imprisonment for not less than10 nor more than 20 years)

18 U.S.C. 2257* (2d and subsequent violation of the recordkeeping requirements concerning sexual exploitation of children: imprisonment for not less than 2 nor more than 10 years)

18 U.S.C. 2257A* (2d and subsequent violation of the recordkeeping requirements concerning simulated sexual activity: imprisonment for not less than 2 nor more than 10 years)

18 U.S.C. 2260(c)(1) (production material involving sexual exploitation of children for importation into the U.S.: imprisonment for not less than 15 nor more than 30 years; upon a 2d conviction, imprisonment for not less than 25 nor more than 50 years; upon a 3d conviction, imprisonment for not less than 35 years nor more than life; where death results, death or imprisonment for any term of years not less than 30 years or life)

18 U.S.C. 2260(c)(2) (trafficking in material related to sexual exploitation of children for importation into the U.S: imprisonment for not less than 5 nor more than 20 years; 2d and subsequent offenses, not less than 15 years nor more than 40 years)

18 U.S.C. 2260A (federal sex offenses by registered sex offenders: imprisonment for a consecutive 10 years)

18 U.S.C. 2261(b)(6) (stalking in violation of court order: imprisonment for not less than 1 year)

18 U.S.C. 2332g(c)(1) (unlawful possession of an anti-aircraft missile: imprisonment for not less than 25 years or for life)

18 U.S.C. 2332g(c)(2) (use, attempted used, or possession and threat to use an anti-aircraft missile: imprisonment for not less than 30 years or for life)

18 U.S.C. 2332h(c)(1) ( unlawful possession of a radiological dispersal device: imprisonment for not less than 25 years or for life)

18 U.S.C. 2332h(c)(2) (unlawful use, attempted used, or possession and threat to use an radiological dispersal device: imprisonment for not less than 30 years or for life)

18 U.S.C. 2381 (treason: death or imprisonment for not less than 5 years)

18 U.S.C. 2422 (coercing or entice a child to engage in sexual activity: imprisonment for not less than 10 years or for life)

18 U.S.C. 2423 (transportation of a child for immoral purpose: imprisonment for not less than 10 years or for life)

18 U.S.C. 3559(c) (3 strikes: an offender convicted of a serious violent felony after having been convicted for 2 or more serious violent felonies or serious drug offenses must be sentenced to life imprisonment)

18 U.S.C. 3559(e) (2 strikes: an offender convicted of a serious sex offense against a child after having been convicted of an earlier serious sex offense must be sentenced to life imprisonment)

19 U.S.C. 283 (failure to pay duty on saloon stores: not less than 3 months nor more than 2 years imprisonment)

21 U.S.C. 212 * (offenses involving the practice of pharmacy in the consular districts of China: a fine of not less than $50 nor more than $100 or imprisonment for not less than 1 month nor more than 60 days, or both) (+ imprisonment at the discretion of the court)

21 U.S.C. 622 (bribery of a meat inspector: not less than 1 nor more than 3 years' imprisonment)

21 U.S.C. 841(b)(1)(A) + (drug trafficker where the offender has 2 or more prior convictions for violation of 21 U.S.C. 849(drug dealing at a truck stop), 859 (dealing to minors), 860 (dealing near a school), 861 (using minors to deal): mandatory life imprisonment)

21 U.S.C. 841(b)(1)(A) *+ (drug trafficking in very substantial amounts of controlled substances (e.g., a kilogram or more of heroin: imprisonment for not less than 10 years nor more than life; imprisonment for not less than 20 years nor more than life if the offender has a prior felony drug conviction or if death or serious bodily injury results)

21 U.S.C. 841(b)(1)(B) *+ (drug trafficking in substantial amounts of controlled substances (e.g., 100 grams of heroin: imprisonment for not less than 5 nor more than 40 years; imprisonment for not less than 20 years nor more than life if death or serious bodily injury results; imprisonment for not less than 10 years nor more than life if the offender has a prior drug felony conviction)

21 U.S.C. 841(b)(1)(C) *+ (drug trafficking in schedule I or II controlled substances or 1 gram of flunitrazepam: imprisonment for not less than 20 years nor more than life if death or serious bodily injury results; imprisonment for life if the offender has a prior drug felony conviction and death or serious bodily injury results)

21 U.S.C. 844 *+ (simple possession of a controlled substance: imprisonment for not less than 90 days nor more than 3 years if the offender has 2 or more prior drug convictions; imprisonment for not less than 15 days nor more than 2 years if the offender has a prior drug conviction)

21 U.S.C. 846 *+(attempts and conspiracies to violate any of the offenses in the Controlled Substances Act carry the same sentences as the underlying offenses)

21 U.S.C. 848(a) (drug kingpin - continuing criminal enterprise violations: imprisonment for not less than 30 years nor more than life for previous offenders, not less than 20 years nor more than life otherwise)

21 U.S.C. 848(b) (drug kingpin violations involving large enterprises: life imprisonment)

21 U.S.C. 848(e)(1) (killing in furtherance of a serious drug trafficking violations or killing a law enforcement official in furtherance of a controlled substance violation: death, life imprisonment, or imprisonment for a term of years not less than 20 years)

21 U.S.C. 859 (distribution of controlled substances to those under 21 years of age): imprisonment for not more than twice the otherwise applicable maximum term, but not less than the greater of the otherwise applicable minimum term or 1 year imprisonment; three times the otherwise applicable maximum term for 2d offenders)

21 U.S.C. 860 (distribution of controlled substances near schools and colleges: imprisonment for not more than twice the otherwise applicable maximum term, but not less than the greater of the otherwise applicable minimum term or 1 year imprisonment; three times the otherwise applicable maximum term but not less than the greater of the otherwise applicable minimum term or 3 years' imprisonment for 2d offenders)

21 U.S.C. 861 (use of those under 21 years of age to distribute controlled substances: imprisonment for not more than twice the otherwise applicable maximum term, but not less than the greater of the otherwise applicable minimum term or 1 year imprisonment; three times the otherwise applicable maximum term for subsequent offenses )

21 U.S.C. 960(b)(1) *+ (illicit drug importing/exporting of very substantial amounts of controlled substances (e.g., a kilogram or more of heroin): imprisonment for not less than 10 years nor more than life; imprisonment for not less than 20 years nor more than life if the offender has a prior felony drug conviction or if death or serious bodily injury results)

21 U.S.C. 960(b)(2) *+ (illicit drug importing/exporting of substantial amounts of controlled substances (e.g., 100 grams of heroin): imprisonment for not less than 5 nor more than 40 years; imprisonment for not less than 20 years nor more than life if death or serious bodily injury results; imprisonment for not less than 10 years nor more than life if the offender has a prior drug felony conviction)

21 U.S.C. 960(b)(3) *+ (illicit drug importing/exporting of schedule I or II controlled substances or 1 gram of flunitrazepam: imprisonment for not more than 20 years, but not less than 20 years nor more than life if death or serious bodily injury results; imprisonment for not more than 30 years if the offender has a prior drug felony conviction; imprisonment for life if the offender has a prior drug felony conviction and death or serious bodily injury results)

21 U.S.C. 963 *+ (attempt or conspiracy to commit any of the drug import/export offenses are subject to the same penalties as the underlying offense)

22 U.S.C. 422 l (perjury before consular officers: imprisonment for not less than 1 nor more than 3 years)

33 U.S.C. 410 * (violation of floating timber regulations: a fine of not less than $500 nor more than $2,500 or imprisonment for not less than 30 days nor more than 1 year, or both in the discretion of the court)

33 U.S.C. 411 * (certain navigable waters offenses: a fine of not more than $2,500 or imprisonment for not less than 30 days nor more than 1 year, or both in the discretion of the court)

33 U.S.C. 441 * (deposit of refuse in various harbors: a fine of not less than $250 nor more than $2,500 or imprisonment for not less than 30 days nor more than 1 year, or both "as the judge before whom conviction is obtained shall decide") (+ imprisonment at the discretion of the court)

33 U.S.C. 447 (bribery of harbor employees: not less than 6 months' nor more than 1 year imprisonment)

46 U.S.C. 58109 * (violations of the Merchant Marine Act: a fine or "imprisonment for not less than one year or more than five years, or by both fine and imprisonment")

47 U.S.C. 13 (refuse to afford telegraph service: a fine of not more than $1,000 and may be imprisonment for not less than 6 months)

47 U.S.C. 220 * (false entries in communication common carrier records: a fine of not less than $1,000 nor more than $5,000 or imprisonment for not less than 1 nor more than 3 years)

Death or Imprisonment for Any Term of Years or for Life

8 U.S.C. 1324(1) (bringing in or harboring aliens where death results)

18 U.S.C. 36 * (drive-by shooting constituting 1 st degree murder)

18 U.S.C. 37 (violence at international airports where death results)

18 U.S.C. 175 (development or possession of biological weapons)

18 U.S.C. 241 * (conspiracy against civil rights where death results)

18 U.S.C. 242 * (deprivation civil rights under color of law where death results)

18 U.S.C. 245 * (discriminatory obstruction of enjoyment federal protected activities where death results)

18 U.S.C. 247 * (obstruction of the exercise of religious beliefs where death results)

18 U.S.C. 351 (conspiracy to kill or kidnap a Member of Congress if death results)

18 U.S.C. 351 (kidnapping a Member of Congress if death results)

18 U.S.C. 794 (espionage)

18 U.S.C. 844(d) (use of fire or explosives unlawfully where death results)

18 U.S.C. 924(j)(1) (murder while in possession of a firearm during the commission of a crime of violence or drug trafficking)

18 U.S.C. 1512 (tampering with a federal witness or informant involving murder)

18 U.S.C. 1513 (retaliating against a federal witness or informant involving murder)

18 U.S.C. 1751 (kidnapping the President where death results)

18 U.S.C. 1751 (conspiracy to kill or kidnap the President where death results)

18 U.S.C. 1992 (terrorist attack on mass transit where death results)

18 U.S.C. 2119 (car jacking where death results)

18 U.S.C. 2241 (aggravated sexual assault of a child under 12 years of age in the special maritime and territorial jurisdiction of the U.S.: death, imprisonment for any term of years not less than 30, or for life)

18 U.S.C. 2245 (sexual abuse where death results)

18 U.S.C. 2251 (sexual exploitation of children where death results)

18 U.S.C. 2280* (violence against maritime navigation where death results)

18 U.S.C. 2281* (violence against maritime fixed platform where death results)

18 U.S.C. 2282A* (interference with maritime commerce where death results)

18 U.S.C. 2283* (unlawful maritime transportation of explosive, biological, chemical, radioactive or nuclear material where death results)

18 U.S.C. 2284* (maritime transportation of terrorists)

18 U.S.C. 2291 (destruction of vessels or maritime facilities where death results)

18 U.S.C. 2320* (trafficking in counterfeit goods or services where death results)

18 U.S.C. 2332 * (terrorist murder of an American outside the U.S.)

18 U.S.C. 2332a (use of weapons of mass destruction where death results)

18 U.S.C. 2332b (acts of terrorism transcending national boundaries where death results)

18 U.S.C. 2332f (bombing public places where death results)

18 U.S.C. 2340A (torture where death results)

18 U.S.C. 2441 * (war crimes where death results)

18 U.S.C. 2442 (recruiting or using child soldiers where death results)

18 U.S.C. 3559(f)(1) (murder of a child in violation of federal law: death, life imprisonment or imprisonment for not more than 30 years)

Death or Imprisonment for Life

15 U.S.C. 1825(a)(2)(C) (1 st degree murder of those enforcing the Horse Protection Act)

18 U.S.C. 34 (destruction of aircraft, commercial motor vehicles or their facilities where death results)

18 U.S.C. 115 (kidnapping with death resulting of the member of the family of a federal official or employee to obstruct or retaliate)

18 U.S.C. 115 (1 st degree murder of the member of the family of a federal official or employee to obstruct or retaliate)

18 U.S.C. 229A (unlawful possession of chemical weapons where death results)

18 U.S.C. 351 (1 st degree murder of a Member of Congress)

18 U.S.C. 924(c)(5) (1 st degree murder using armor piercing ammunition during the commission of a crime of violence or drug trafficking)

18 U.S.C. 930(c) (1 st degree murder while in possession of a firearm in a federal building)

18 U.S.C. 1091 * (genocide where death results)

18 U.S.C. 1111 (1 st degree murder within the special maritime and territorial jurisdiction of the U.S.)

18 U.S.C. 1114 (1 st degree murder of a federal officer or employee)

18 U.S.C. 1116 (1 st degree murder of a foreign dignitary)

18 U.S.C. 1118 (murder by a federal prisoner)

18 U.S.C. 1119 (1 st degree murder of an American by an American overseas)

18 U.S.C. 1120 (1 st degree murder by an escaped federal prisoner)

18 U.S.C. 1121 (1 st degree murder of one assisting in a federal criminal investigation)

18 U.S.C. 1201 (kidnapping where death results)

18 U.S.C. 1203 (hostage taking where death results)

18 U.S.C. 1503 (1 st degree murder committed to obstruction of federal judicial proceedings)

18 U.S.C. 1512 (1 st degree murder involving witness tampering)

18 U.S.C. 1513 (1 st degree murder involving witness retaliation)

18 U.S.C. 1716 (mailing injurious articles with intent to injury or damage property where death results)

18 U.S.C. 1751 (1 st degree murder of the President)

18 U.S.C. 1841 (1 st degree murder of an unborn child)

18 U.S.C. 1958 (use of interstate facilities in furtherance of a murder-for-hire where death results)

18 U.S.C. 1959 (murder in aid of racketeering activity)

18 U.S.C. 1992 (attack in mass transit where death results)

18 U.S.C. 2113(e) (killing or hostage taking during the course of robbing a federally insured bank: not less than 10 years; death or life imprisonment if death results)

18 U.S.C. 3559 (federal violent felony or violation of 18 U.S.C. 2422 (coercing or enticing interstate travel for sexual purposes), 2423(transporting minors for sexual purposes), or 2251(sexual exploitation of children) resulting in the death of a child under 14 years of age)

21 U.S.C. 461 (1 st degree murder of a poultry inspector)

21 U.S.C. 675 (1 st degree murder of a meat inspector)

49 U.S.C. 46502 (air piracy where death results)

Imprisonment for Any Term of Years or Life

15 U.S.C. 1825(a)(2)(C) (2d degree murder of those enforcing the Horse Protection Act)

18 U.S.C. 36 * (drive-by shooting constituting murder other than 1 st degree murder)

18 U.S.C. 38 * (fraud involving aircraft or space vehicle part whose failure results in death)

18 U.S.C. 43 (animal enterprise terrorism where death results)

18 U.S.C. 81 * (arson within the special maritime and territorial jurisdiction of the United States)

18 U.S.C. 115 (kidnapping or conspiring to kidnap the member of the family of a federal official or employee to obstruct or retaliate)

18 U.S.C. 115 (2d degree murder of the member of the family of a federal official or employee to obstruct or retaliate)

18 U.S.C. 115 (conspiracy to murder the member of the family of a federal official or employee to obstruct or retaliate)

18 U.S.C. 175 * (unlawful possession of biological weapons)

18 U.S.C. 229A * (unlawful possession of chemical weapons: imprisonment for any term of years)

18 U.S.C. 241 * (conspiracy against civil rights involving attempts to kill, or kidnap, attempted kidnapping, sexual assault or attempted sexual assault)

18 U.S.C. 242 * (deprivation of rights under color of law involving attempts to kill, or kidnap, attempted kidnaping, sexual assault or attempted sexual assault)

18 U.S.C. 245 * (discriminatory obstruction of enjoyment federal protected activities involving attempts to kill, or kidnap, attempted kidnapping, sexual assault or attempted sexual assault)

18 U.S.C. 248 * (interference with access to clinic entrances where death results)

18 U.S.C. 249 * (hate crime where death results or involving attempts to kill, or kidnap, attempted kidnapping, sexual assault or attempted sexual assault)

18 U.S.C. 351(c),(d) (attempt or conspiracy to kill or kidnap a Member of Congress)

18 U.S.C. 351(b) (kidnapping a Member of Congress)

18 U.S.C. 351(a) (2d degree murder of a Member of Congress)

18 U.S.C. 831 (prohibited transactions in nuclear material where death or serious bodily injury results)

18 U.S.C. 832 (attempt to use, conspiracy to use, threaten to use, or use of radiological weapon)

18 U.S.C. 924(c)(5) (2d degree murder using armor piercing ammunition during the commission of a crime of violence or drug trafficking)

18 U.S.C. 924(o) (conspiracy to violate 18 U.S.C. 924(c)(use of or possession of a machinegun or firearm equipped with a silencer during the commission of a crime of violence or drug trafficking))

18 U.S.C. 930(c) (2d degree murder while in possession of a firearm in a federal building)

18 U.S.C. 956 (conspiracy to murder or kidnap in a foreign country)

18 U.S.C. 1030 * (intentionally causing computer damage that results in death)

18 U.S.C. 1038 * (terrorism hoax where death results)

18 U.S.C. 1111 (2d degree murder within the special maritime and territorial jurisdiction of the U.S.)

18 U.S.C. 1114 (2d degree murder of a federal officer or employee)

18 U.S.C. 1116 (2d degree murder of a foreign dignitary)

18 U.S.C. 1117 (conspiracy to commit murder in violation of 18 U.S.C. 1111 (within the special maritime and territorial jurisdiction of the U.S.), 1114 (of a federal officer or employee), 1116 (of a foreign dignitary), or 1119 (of an American by an American overseas)

18 U.S.C. 1119 (2d degree murder of an American by an American overseas)

18 U.S.C. 1120 (2d degree murder by an escaped federal prisoner)

18 U.S.C. 1121 (2d degree murder of one assisting in a federal criminal investigation)

18 U.S.C. 1201 (kidnapping or conspiracy to kidnap)

18 U.S.C. 1203 (hostage taking)

18 U.S.C. 1347 * (health care fraud resulting in death)

18 U.S.C. 1365 * (tampering with consumer products where death results)

18 U.S.C. 1366 (destruction of energy facilities where death results)

18 U.S.C. 1503 (2d degree murder committed to obstruction of federal judicial proceedings)

18 U.S.C. 1512 (2d degree murder involving witness tampering)

18 U.S.C. 1513 (2d degree murder involving witness retaliation)

18 U.S.C. 1581 * (peonage involving kidnapping or rape or where death results)

18 U.S.C. 1583 * (enticement into slavery involving kidnapping or rape or where death results)

18 U.S.C. 1584 * (sale into involuntary servitude involving kidnapping or rape or where death results)

18 U.S.C. 1589 * (forced labor involving kidnapping or rape or where death results)

18 U.S.C. 1590 * (slave trafficking involving kidnapping or rape or where death results)

18 U.S.C. 1594 * (conspiracy sex trafficking by force or of children)

18 U.S.C. 1751 (2d degree murder of the President)

18 U.S.C. 1751 (kidnapping the President)

18 U.S.C. 1751 (attempting to kill or kidnap the President)

18 U.S.C. 1751 (conspiracy to kill or kidnap the President)

18 U.S.C. 1751 (aggravated assault of the President)

18 U.S.C. 1841 (2d degree murder of an unborn child)

18 U.S.C. 1864 * (booby traps on federal lands where death results)

18 U.S.C. 1952 (Travel Act violations (interstate travel in aid of racketeering enterprises) where death results)

18 U.S.C. 1959 (kidnapping in aid of racketeering activity)

18 U.S.C. 1992* (attack on mass transit shipper carrying high level radioactive waste or spent nuclear fuel unless the offense results in death (may be punished by death if death results))

18 U.S.C. 2118 * (robbery or burglary involving controlled substances where death results)

18 U.S.C. 2155 (destruction of national defense material where death results)

18 U.S.C. 2199 * (stowaways on vessels or aircraft where death results)

18 U.S.C. 2237 * (failure to heave to or to resist law enforcement boarding where death results or involving attempts to kill, or kidnap, attempted kidnapping, sexual assault or attempted sexual assault)

18 U.S.C. 2242 (sexual abuse committed in special maritime or territorial jurisdiction of the United States)

18 U.S.C. 2244 (sexual contact with a child under the age of 12 (or under the age of 16 when at least 4 years younger than the offender) committed in special maritime or territorial jurisdiction of the United States)

18 U.S.C. 2261 (interstate domestic violence if death results)

18 U.S.C. 2261A (interstate stalking if death results)

18 U.S.C. 2262 (interstate violation of protection order if death results)

18 U.S.C. 2272 (destruction of vessel by owner)

18 U.S.C. 2280 (maritime transportation of terrorists)

18 U.S.C. 2332 (terrorist conspiracy to murder an American outside the U.S.)

18 U.S.C. 2332a (use of weapons of mass destruction)

18 U.S.C. 2332b (acts of terrorism transcending national boundaries involving a kidnapping)

18 U.S.C. 2339A (providing material support to terrorists where death results)

18 U.S.C. 2339B (providing material support to terrorist organizations where death results)

18 U.S.C. 2441 * (war crimes)

18 U.S.C. 3559(f)(2) (kidnapping or maiming of a child in violation of federal law: imprisonment for any term of years or for life but not less than 25 years)

18 U.S.C. 3559(f)(3) (a crime of violence involving serious injury or use of a dangerous weapon committed against a child in violation of federal law: imprisonment for any term of years or fore life but not less than 10 years)

21 U.S.C. 461 (2d degree murder of a poultry inspector)

21 U.S.C. 675 (2d degree murder of a meat inspector)

42 U.S.C. 2000e-13 (killing EEOC personnel)

42 U.S.C. 2272 * (atomic energy violations to injure the U.S. or aid a foreign nation)

42 U.S.C. 2274 * (communication of restricted data)

42 U.S.C. 2275 * (receipt of restricted data)

42 U.S.C. 2276 * (tampering with restricted data)

42 U.S.C. 2284 (sabotaging nuclear facilities where death results)

42 U.S.C. 3631 * (housing discrimination where death results)

49 U.S.C. 46503 (interfering with airport security screening personnel while armed with a dangerous weapon)

49 U.S.C. 46504 (interference with flight crew involving a dangerous weapon)

49 U.S.C. 46505 (carrying a weapon or explosive on an aircraft where death results)

49 U.S.C. 60123 (damaging pipelines where death results)

Imprisonment for Life

18 U.S.C. 175c(c)(3) (unlawful possession of variola virus where death results)

18 U.S.C. 924(c) (2d conviction for commission of a crime of violence or drug trafficking while armed with a machinegun or firearm with a silencer)

18 U.S.C. 1651 (piracy)

18 U.S.C. 1652 (piracy)

18 U.S.C. 1653 (piracy)

18 U.S.C. 1655 (seaman laying violent hands upon a commander)

18 U.S.C. 1661 (robbery ashore by pirates: imprisonment for life)

18 U.S.C. 1963 (racketeer and corrupt influenced organization (RICO) offenses where the predicate offense)

18 U.S.C. 2332g(c)(3) (unlawful possession of an anti-aircraft missile where death results)

18 U.S.C. 2332h(c)(3) ( unlawful possession of a radiological dispersal device where death results)

Imprisonment for Any Term of Years

21 U.S.C.860a (manufacturing or trafficking methamphetamine where children are present)

Imprisonment for the Same, or Some Multiple of, the Sentence for a Predicate Offense When the Predicate Requires Imposition of a Mandatory Minimum Sentence

18 U.S.C. 2 (aiding and abetting any of the offenses listed – offenders are treated as principals in the predicate offense)

18 U.S.C. 1841 (commission of various predicate offenses upon an unborn child)

18 U.S.C. 2247 (doubles the otherwise applicable penalties for sexual abuse violations if the offender has a prior sex offense conviction)

18 U.S.C. 2426 (doubles the otherwise applicable penalties for Mann Act (transportation for illegal sexual activity) violations if the offender has a prior sex offense conviction)

21 U.S.C. 846 (attempts or conspiracies to violate any provision of the Controlled Substance Act is subject to the same penalties as the completed offense)

21 U.S.C. 860(c) (use of one under 21 years of age to distribution of controlled substances near schools and colleges: imprisonment for not more than three times the otherwise applicable sentence)

21 U.S.C. 860a* (narco-terrorism: imprisonment for less than twice the minimum punishment under 21 U.S.C. 841(b)(1)(trafficking in controlled substances))

21 U.S.C. 962 (violation of the drug import/export law by an offender with a prior conviction for violation of those provisions is punishable by imprisonment for twice the term otherwise authorized)

21 U.S.C. 963 (attempts or conspiracies to violate any provision of the Controlled Substance Import and Export Act are subject to the same penalties as the completed offense)

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Notes and Comments

Do Judicial "Scarlet Letters" Violate the Cruel and Unusual Punishments Clause of the Eighth Amendment , 16 Hastings Constitutional Law Quarterly 115 (1988)

The Eighth Amendment, Becarria, and the Enlightenment: An Historical Justification for the Weems v. United States Excessive Punishment Doctrine , 24 Buffalo Law Review 783 (1975)

Interpretation of the Eighth Amendment—Rummel, Solem and the Venerable Case of Weems v. United States , 1984 Duke Law Journal 789

Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences , 28 Florida State University Law Review 935 (2001)

Rethinking Mandatory Minimums After Apprendi , 96 Northwestern University Law Review 811 (2002)

The "Safety Valve" Provision: Should the Government Get an Automatic Shut-Off Valve? 2002 University of Illinois Law Review 529

Solem v. Helm: The Supreme Court Extends the Proportionality Requirement to Sentences of Imprisonment , 1984 Wisconsin Law Review 1401

United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review , 115 Yale Law Journal 2183 (2006)

The Verdict Is In: Throw Out Mandatory Sentences , 79 American Bar Association Journal 78 (1994).