Report to the Congress:

MANDATORY MINIMUM PENALTIES IN
THE FEDERAL CRIMINAL JUSTICE SYSTEM

UNITED STATES SENTENCING COMMISSION
October 2011

MANDATORY MINIMUM PENALTIES IN
THE FEDERAL CRIMINAL JUSTICE SYSTEM

Patti B. Saris
Chair
William B. Carr, Jr.
Vice Chair
Ketanji B. Jackson
Vice Chair
Ricardo H. Hinojosa
Commissioner
Beryl A. Howell
Commissioner
Dabney L. Friedrich
Commissioner
Jonathan J. Wroblewski
Commissioner, Ex-officio
Isaac Fulwood, Jr.
Commissioner, Ex-officio

TABLE OF CONTENTS
Executive Summary ......................................................................................................................xxv
A.
OVERVIEW AND RECOMMENDATIONS ..............................................................................xxv
B.
SUMMARY OF DATA ANALYSES BY OFFENSE TYPE ...................................................... xxxii
Chapter 1
OVERVIEW ....................................................................................................................................1
A.
INTRODUCTION .....................................................................................................................1
B.
OVERVIEW OF REPORT .........................................................................................................3
1. Methodology ..................................................................................................................3
2. Definitions of Key Terms ...............................................................................................4
3. Organization ..................................................................................................................5
Chapter 2
HISTORY OF MANDATORY MINIMUM PENALTIES AND STATUTORY
RELIEF MECHANISMS ................................................................................................................7
A.
INTRODUCTION .....................................................................................................................7
B.
MANDATORY MINIMUM PENALTIES IN THE EARLY REPUBLIC .............................................7
C.
MANDATORY PENALTIES IN THE CIVIL WAR ERA...............................................................13
D.
THE REVISED STATUTES: MANDATORY MINIMUMS AFTER THE CIVIL
WAR ................................................................................................................................15
E.
THE 1909 CRIMINAL CODE AND SUBSEQUENT CODIFICATIONS
IN THE FIRST HALF OF THE 20TH CENTURY ........................................................................18
F.
MANDATORY PENALTIES FROM THE MID-TWENTIETH
CENTURY ............................................................................................................................22
1. Introduction ................................................................................................................22
2. Mandatory Minimum Penalties for Drug Offenses......................................................23
3. Mandatory Minimum Penalties for Firearms Offenses ...............................................25
4 Mandatory Minimum Penalties for Child Sexual Exploitation and
Related Offenses...........................................................................................................27
5. Mandatory Minimum Penalties for Identity Theft Offenses.........................................29
G.
RECONSIDERATION OF CERTAIN MANDATORY MINIMUMS:
THE FAIR SENTENCING ACT OF 2010 .................................................................................29
H.
MECHANISMS FOR RELIEF FROM MANDATORY MINIMUMS
PENALTIES ..........................................................................................................................31
1. Introduction..................................................................................................................31
2. Substantial Assistance to the Authorities .....................................................................32
3. The Safety Valve ..........................................................................................................34
Chapter 3
THE INTERACTION BETWEEN MANDATORY MINIMUM PENALTIES
AND THE SENTENCING GUIDELINES ...................................................................................37
A.
INTRODUCTION ...................................................................................................................37
B.
DEVELOPMENT AND OPERATION OF THE GUIDELINES ........................................................37
1. History of the Sentencing Reform Act ..........................................................................37
i

C.
D.

2. The Sentencing Reform Act’s Requirements ................................................................40
3. Operation of the Sentencing Guidelines ......................................................................42
4. Amending the Guidelines .............................................................................................47
5. Constitutionality of Mandatory Minimum Penalties....................................................50
INCORPORATION OF MANDATORY MINIMUM PENALTIES
INTO THE GUIDELINES .........................................................................................................53
COMPARING THE GUIDELINES AND MANDATORY MINIMUM PENALTIES ...........................57

Chapter 4
CHANGES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM, MANDATORY
MINIMUM PENALTIES, AND THE FEDERAL PRISON POPULATION ..............................63
A.
INTRODUCTION ...................................................................................................................63
B.
SYSTEMIC CHANGES TO THE FEDERAL CRIMINAL JUSTICE SYSTEM ...................................63
1. Increased Federalization of Criminal Law ..................................................................63
2. Changes in the Size and Composition of the Federal Criminal Docket ......................66
3. Increased Imposition of Sentences of Imprisonment ...................................................69
C.
CHANGES IN MANDATORY MINIMUM PENALTIES ...............................................................71
1. Expansion of Mandatory Minimum Penalties..............................................................71
2. Changes in Types of Offenses Subject to Mandatory Minimums.................................72
3. Increases in the Severity of Penalties for Mandatory Minimum Offenses ...................75
D.
CHANGES IN THE SIZE AND COMPOSITION OF THE FEDERAL PRISON POPULATION .............76
Chapter 5
POLICY VIEWS ABOUT MANDATORY MINIMUM PENALTIES .......................................85
A.
INTRODUCTION ...................................................................................................................85
B.
POLICY VIEWS IN FAVOR OF MANDATORY MINIMUM PENALTIES ......................................85
1. Promotion of Uniformity in Sentencing and Avoidance of Unwarranted
Disparity ......................................................................................................................85
2. Protection of the Public through Certainty in Punishment, Deterrence, and
Incapacitation ..............................................................................................................86
3. Retribution ...................................................................................................................88
4. Effective Law Enforcement Tool that Induces Pleas and Cooperation .......................89
5. Assistance to State and Local Law Enforcement .........................................................89
POLICY VIEWS AGAINST MANDATORY MINIMUM PENALTIES ............................................90
C.
1. Contribution to Excessive Uniformity and Unwarranted Disparity ............................90
2. Excessive Severity and Disproportionality ..................................................................92
3. Lack of Individualized Sentencing ...............................................................................95
4. Transfer of Sentencing Discretion from Judges to Prosecutors ..................................96
5. Ineffectiveness as a Deterrent or as a Law Enforcement Tool to
Induce Pleas and Cooperation.....................................................................................98
6. Interference with State Law Enforcement ..................................................................100
7. Impact Across Demographic Groups.........................................................................101
D.
CONCLUSION.....................................................................................................................103

ii

Chapter 6
THE USE OF MANDATORY MINIMUM PENALTIES IN SELECTED DISTRICTS ..........105
A.
INTRODUCTION .................................................................................................................105
B.
METHODOLOGY ................................................................................................................105
C.
OVERVIEW OF THE USE OF OFFENSES CARRYING MANDATORY MINIMUM PENALTIES ....106
1. Charging Decisions ...................................................................................................107
2. Plea Negotiations .......................................................................................................108
3. Binding Plea Agreements – Fed. R. Crim. P. 11(c)(1)(C) ........................................109
4. Substantial Assistance................................................................................................110
D.
SPECIFIC OFFENSE TYPES CARRYING MANDATORY MINIMUM PENALTIES.......................111
1. Drug Offenses ............................................................................................................111
2. Firearms Offenses – 18 U.S.C. § 924(c) Violations ..................................................113
3. Child Pornography Offenses – Possession vs. Receipt..............................................114
4. Aggravated Identity Theft – 18 U.S.C. § 1028A Violations .......................................115
E.
MANDATORY MINIMUM PENALTIES IN PRACTICE .............................................................115
1. Defendants’ Prior Knowledge about Mandatory Minimum Penalties ......................115
2. Incentive to Plead Guilty ...........................................................................................115
3. Trial Rates Driven by Mandatory Minimum Penalties ..............................................116
4. Impact on Willingness to Provide Substantial Assistance .........................................116
5. False Testimony by Cooperators ...............................................................................117
6. Safety Valve................................................................................................................117
Chapter 7
STATISTICAL OVERVIEW OF MANDATORY MINIMUM PENALTIES ..........................119
A.
INTRODUCTION .................................................................................................................119
B.
METHODOLOGY ................................................................................................................119
C.
STATISTICAL OVERVIEW ...................................................................................................121
1. Demographic Characteristics ...................................................................................122
2. Criminal History .......................................................................................................124
3. Guilty Pleas and Trials ..............................................................................................125
4. Geographic Variations...............................................................................................128
5. Relief from the Mandatory Minimum Penalty ...........................................................132
D.
SENTENCING OUTCOMES ..................................................................................................136
1. Average Sentence Length ...........................................................................................136
2. Sentences Relative to the Applicable Guideline Range .............................................139
E.
PRISON IMPACT .................................................................................................................140
1. Introduction................................................................................................................140
2. Male Offenders...........................................................................................................141
3. Female Offenders .......................................................................................................143
F.
SUMMARY .........................................................................................................................146
Chapter 8
MANDATORY MINIMUM PENALTIES FOR DRUG OFFENSES .......................................149
A.
INTRODUCTION .................................................................................................................149
B.
DRUG OFFENSES AND RELATED GUIDELINES ...................................................................150
C.
STATISTICAL OVERVIEW OF DRUG OFFENSES...................................................................152
iii

D.

E.

F.

G.

H.

1. Demographic Characteristics of Drug Offenders......................................................153
2. Guilty Pleas and Trials ..............................................................................................155
3. Geographic Variations...............................................................................................156
4. Relief from the Mandatory Minimum Penalty ...........................................................158
5. Sentencing Outcomes .................................................................................................160
6. Prison Impact .............................................................................................................164
7. Offender Function ......................................................................................................165
POWDER COCAINE OFFENSES ...........................................................................................173
1. Demographic Characteristics of Powder Cocaine Offenders ...................................173
2. Guilty Pleas and Trials ..............................................................................................177
3 Geographic Variations...............................................................................................177
4. Relief from the Mandatory Minimum Penalty ...........................................................178
5. Sentencing Outcomes .................................................................................................180
6. Prison Impact .............................................................................................................185
7. Offender Function ......................................................................................................185
8. Summary ....................................................................................................................187
CRACK COCAINE OFFENSES ..............................................................................................191
1. Demographic Characteristics of Crack Cocaine Offenders ......................................191
2. Guilty Pleas and Trials ..............................................................................................193
3. Geographic Variations...............................................................................................194
4. Relief from the Mandatory Minimum Penalty ...........................................................195
5. Sentencing Outcomes .................................................................................................196
6. Prison Impact .............................................................................................................203
7. Offender Function ......................................................................................................203
8. Summary ....................................................................................................................205
MARIJUANA OFFENSES .....................................................................................................209
1. Demographic Characteristics of Marijuana Offender ..............................................209
2. Guilty Pleas and Trials .............................................................................................212
3. Geographic Variations...............................................................................................212
4. Relief from the Mandatory Minimum Penalty ...........................................................213
5. Sentencing Outcomes .................................................................................................215
6. Prison Impact .............................................................................................................218
7. Offender Function ......................................................................................................218
8. Summary ....................................................................................................................220
METHAMPHETAMINE OFFENSES........................................................................................223
1. Demographic Characteristics of Methamphetamine Offenders ................................224
2. Guilty Pleas and Trials ..............................................................................................226
3. Geographic Variations...............................................................................................227
4. Relief from the Mandatory Minimum Penalty ...........................................................227
5. Sentencing Outcomes .................................................................................................229
6. Prison Impact .............................................................................................................233
7. Offender Function ......................................................................................................233
8. Summary ....................................................................................................................235
HEROIN OFFENSES ............................................................................................................239
1. Demographic Characteristics of Heroin Offenders...................................................239
2. Guilty Pleas and Trials ..............................................................................................241
iv

I.

J.

3. Geographic Variations...............................................................................................242
4. Relief from the Mandatory Minimum Penalty ...........................................................242
5. Sentencing Outcomes .................................................................................................244
6. Prison Impact .............................................................................................................247
7. Offender Function ......................................................................................................247
8. Summary ....................................................................................................................249
SECTION 851 ANALYSIS ...................................................................................................252
1. Introduction................................................................................................................252
2. Methodology ..............................................................................................................253
3. Geographic Variations...............................................................................................255
4. Demographic Characteristics of Offenders Eligible for
Section 851 Enhancement ..........................................................................................256
5. Drug Types Associated with Offenders Eligible for Section 851 Enhancement ........258
6. Summary ....................................................................................................................260
SUMMARY .........................................................................................................................261

Chapter 9
MANDATORY MINIMUM PENALTIES FOR FIREARM OFFENSES .................................269
A.
INTRODUCTION .................................................................................................................269
B.
THE STATUTES AND RELATED GUIDELINES ......................................................................269
1. 18 U.S.C. § 924(c) .....................................................................................................269
2. Armed Career Criminal Act, 18 U.S.C. § 924(e) .....................................................271
3. The Categorical Approach.........................................................................................272
C.
MANDATORY MINIMUM PENALTIES FOR SECTION 924(C) OFFENSES ...............................273
1. Demographic Characteristics ...................................................................................274
2. Guilty Pleas and Trials ..............................................................................................275
3. Geographic Variations...............................................................................................276
4. Other Counts of Conviction ......................................................................................278
5. Sentence Length .........................................................................................................279
6. Relief from the Mandatory Minimum Penalty ...........................................................280
7. Guidelines Compared ...............................................................................................281
D.
MANDATORY MINIMUM PENALTIES UNDER THE ARMED CAREER CRIMINAL ACT ...........282
1. Demographic Characteristics ...................................................................................282
2. Guilty Pleas and Trials ..............................................................................................284
3. Geographic Variations...............................................................................................284
4. Sentence Information .................................................................................................286
5. Relief from the Mandatory Minimum Penalty ...........................................................287
E.
PRISON IMPACT .................................................................................................................288
F.
SUMMARY .........................................................................................................................288
Chapter 10
MANDATORY MINIMUM PENALTIES FOR SEX OFFENSES ...........................................295
A.
INTRODUCTION .................................................................................................................295
B.
OFFENSES AND RELATED GUIDELINES ..............................................................................296
1. Federal Sex Offenses..................................................................................................296
2. Related Guidelines .....................................................................................................299
v

C.

D.

E.
F.

STATISTICAL OVERVIEW ..................................................................................................300
1. Demographic Characteristics of Sex Offenders ........................................................301
2. Guilty Pleas and Trials ..............................................................................................304
3. Geographic Variations...............................................................................................305
4. Relief from the Mandatory Minimum Penalty ...........................................................307
SENTENCING OUTCOMES ..................................................................................................309
1. Sentencing Outcomes Generally in Sex Offense Cases..............................................309
2. Special Coding Project: Application of Mandatory Minimum Penalties in Child
Pornography Cases....................................................................................................316
PRISON IMPACT .................................................................................................................319
SUMMARY ........................................................................................................................319

Chapter 11
MANDATORY MINIMUM PENALTIES FOR IDENTITY THEFT OFFENSES ...................325
A.
INTRODUCTION .................................................................................................................325
B.
OFFENSES AND RELATED GUIDELINES ..............................................................................326
1. Identity Theft Offenses ...............................................................................................326
2. Related Guidelines .....................................................................................................328
C.
STATISTICAL OVERVIEW ..................................................................................................329
1. Demographic Characteristics of Identity Theft Offenders.........................................331
2. Guilty Pleas and Trials ..............................................................................................332
3. Geographic Variations...............................................................................................333
4. Application of Section 1028A.....................................................................................334
D.
SENTENCING OUTCOMES ..................................................................................................336
1. Sentence Length .........................................................................................................336
2. Relief from the Mandatory Minimum Penalty ...........................................................337
3. Stacking of Multiple Counts .......................................................................................339
4. Demographic Characteristics and Average Sentence Length ...................................339
E.
PRISON IMPACT .................................................................................................................341
F.
SUMMARY .........................................................................................................................342
Chapter 12
CONCLUSIONS AND RECOMMENDATIONS ......................................................................345
A.
INTRODUCTION .................................................................................................................345
B.
GENERAL CONCLUSIONS AND RECOMMENDATIONS .........................................................345
C.
SPECIFIC CONCLUSIONS AND RECOMMENDATIONS ...........................................................348
1. Drug Offenses ............................................................................................................349
2. Firearm Offenses .......................................................................................................356
3. Sex Offenses ...............................................................................................................365
4. Identity Theft Offenses ...............................................................................................366
D.
SUMMARY OF RECOMMENDATIONS ..................................................................................366
D
CONCLUSION.....................................................................................................................369

vi

APPENDICES
A.
Current Statutory Provisions Requiring
Mandatory Minimum Terms of Imprisonment ............................................................... A-1
B.
Pending Mandatory Minimum Legislation ......................................................................B-1
C.
Table Listing Mandatory Minimums in the 1878 Revised Statutes ................................C-1
D.
Empirical Analysis of Mandatory Minimums – Tables and Figures .............................. D-1
E.
Brief Review of Case Law Relating to
Mandatory Minimum Sentences ...................................................................................... E-1
F.
Field Interview Questions for Federal Prosecutors
and Defense Attorneys .................................................................................................... F-1
G
Summaries of Oral and Written Remarks of the Witnesses to the Commission
about Mandatory Minimum Penalties at May 27, 2010 Hearing.................................... G-1
H.
Methodology for Offender Function Coding .................................................................. H-1
I.
Bibliography ..................................................................................................................... I-1
J.
Summaries of Oral and Written Remarks of the Witnesses to the Commission
About the Topic of Mandatory Minimum Penalties at the Sentencing
Reform Act 25th Anniversary Regional Hearings ............................................................J-1

vii

viii

TABLE OF FIGURES
Figure 4-1:

Percentage of Offenders Convicted of an Offense Carrying a
Mandatory Minimum Penalty and Subject to a Mandatory
Minimum Penalty at Sentencing .......................................................68

Figure 4-2:

Percentage of Offenders Convicted of an Offense Carrying a
Mandatory Minimum Penalty and Subject to a Mandatory
Minimum Penalty at Sentencing: Immigration
Offenses Excluded ...........................................................................69

Figure 4-3:

Imposition of Term of Imprisonment ...............................................70

Figure 4-4:

Average Sentence When Offender Sentenced to Prison and
Guideline Minimum..........................................................................71

Figure 4-5:

Offenders in Select Offense Types Convicted of an Offense
Carrying a Mandatory Minimum Penalty .........................................72

Figure 4-6:

Primary Offense of Conviction for Offenders Convicted of an
Offense Carrying a Mandatory Minimum Penalty ...........................73

Figure 4-7:

Length of Mandatory Minimum Penalty for Offenders
Convicted of an Offense Carrying a Mandatory
Minimum Penalty .............................................................................76

Figure 4-8:

Number of Offenders in Prison on December 31 .............................77

Figure 4-9:

Number of Offenders in Prison on September 30 by Race of
Offender ...........................................................................................77

Figure 4-10: Percentage of Offenders in Prison on September 30 by Race of
Offender ............................................................................................78
Figure 4-11: Number of Offenders in Prison on September 30 by Gender of
Offender ...........................................................................................79
Figure 4-12: Percentage of Offenders in Prison on September 30 by Gender of
Offender ............................................................................................79
Figure 4-13: Number of Offenders in Prison on September 30 by
Citizenship of Offender ..................................................................80
ix

Figure 4-14: Percentage of Offenders in Prison on September 30 by
Citizenship of Offender ...................................................................80
Figure 4-15: Number of Offenders in Prison Not Convicted of an Offense
Carrying a Mandatory Minimum, Convicted of an Offense
Carrying a Mandatory Minimum Penalty and Subject to a
Mandatory Minimum Penalty at Sentencing ...................................81
Figure 4-16: Percentage of Offenders in Prison Not Convicted of an Offense
Carrying a Mandatory Minimum, Convicted of an Offense
Carrying a Mandatory Minimum Penalty and Subject to a
Mandatory Minimum Penalty at Sentencing ....................................82
Figure 7-1:

Offenders Convicted of an Offense Carrying a Mandatory
Minimum Penalty ..........................................................................121

Figure 7-2:

Offenders Relieved of an Offense Carrying a Mandatory
Minimum Penalty ...........................................................................122

Figure 7-3:

Plea and Trial Rates by Mandatory Minimum Status ....................126

Figure 7-4:

Plea and Trial Rates of Offenders by Length of Mandatory
Minimum Penalty ..........................................................................128

Figure 7-5:

Plea and Trial Rates for Offenders with a Five or Ten Year
Mandatory Minimum Penalty by Safety Valve Status ...................128

Figure 7-6:

Number of Offenders Convicted of an Offense Carrying a
Mandatory Minimum Penalty by District ......................................129

Figure 7-7A: Distribution of Offenders Convicted of an Offense Carrying a
Mandatory Minimum Penalty by District ......................................131
Figure 7-7B: Distribution of Offenders Convicted of an Offense Carrying a
Mandatory Minimum Penalty by District: Immigration Offenders
Excluded ........................................................................................131
Figure 7-8:

Percent of Offenders Convicted of an Offense Carrying a
Mandatory Minimum Penalty Who Were Relieved
of the Penalty ..................................................................................133

x

Figure 7-9:

Relief from Mandatory Minimum Penalty by Race of
Offender .........................................................................................134

Figure 7-10: Relief from Mandatory Minimum Penalty by Gender of
Offenders ........................................................................................135
Figure 7-11: Relief from Mandatory Minimum Penalty by Citizenship of
Offenders ........................................................................................136
Figure 7-12: Average Sentence Length for Offenders Convicted of an Offense
Carrying a Mandatory Minimum Penalty .......................................137
Figure 7-13: Number of Offenders in Selected Mandatory Minimum Penalty
Categories .......................................................................................138
Figure 7-14: Number of Offenders in Prison by Race for Male
Offenders .......................................................................................141
Figure 7-15: Number of Offenders in Prison Convicted of an Offense
Carrying a Mandatory Minimum Penalty by Race for Male
Offenders ........................................................................................142
Figure 7-16: Number of Offenders in Prison Subject to an Offense
Carrying a Mandatory Minimum Penalty by Race for Male
Offenders .......................................................................................143
Figure 7-17: Number of Offenders in Prison by Race for Female
Offenders ........................................................................................144
Figure 7-18: Number of Offenders in Prison Convicted of an Offense
Carrying a Mandatory Minimum Penalty by Race for Female
Offenders ........................................................................................145
Figure 7-19: Number of Offenders in Prison Subject to an Offense
Carrying a Mandatory Minimum Penalty by Race for Female
Offenders ........................................................................................146
Figure 8-1:

Type of Drug Involved in Drug Offenses .......................................153

Figure 8-2:

Number of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty by District .......................................157

xi

Figure 8-3:

Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty by District .......................................158

Figure 8-4:

Percent of Offenders Convicted of an Offense Carrying a
Drug Mandatory Minimum Penalty Who Were Relieved of the
Penalty ............................................................................................159

Figure 8-5:

Average Guideline Minimum and Average Sentence for
Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty: All Drugs .........................................................162

Figure 8-6:

Average Guideline Minimum and Average Sentence for
Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty: Substantial Assistance, All Drugs ...................163

Figure 8-7:

Average Guideline Minimum and Average Sentence for
Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty: Non-Substantial Assistance Below Range
Sentence, All Drugs ........................................................................164

Figure 8-8:

Number of Offenders in Prison on September 30:
Drug Offenders ...............................................................................165

Figure 8-9:

Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty and Subject to a Mandatory
Minimum Penalty by Offender Function ........................................168

Figure 8-10: Median Base Offense Level and Final Offense Levels by
Offender Function ...........................................................................169
Figure 8-11: Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty Who Were Relieved of the
Penalty by Offender Function .........................................................171
Figure 8-12: Average Sentence by Offender Function ........................................173
Figure 8-13: Number of Powder Cocaine Offenders Convicted of an
Offense Carrying a Drug Mandatory Minimum
Penalty by District .........................................................................178

xii

Figure 8-14: Percent of Powder Cocaine Offenders Convicted of an
Offense Carrying a Drug Mandatory Minimum Penalty
Who Were Relieved of the Penalty ................................................179
Figure 8-15: Average Sentence Length by Race of Powder Cocaine Offenders
Convicted of an Offense Carrying a Drug Mandatory Minimum
Penalty ............................................................................................181
Figure 8-16: Average Guideline Minimum and Average Sentence for
Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty: Substantial Assistance, Powder Cocaine
Offenders .......................................................................................184
Figure 8-17: Average Guideline Minimum and Average Sentence for
Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty: Non-Substantial Assistance Below Range
Sentence, Powder Cocaine Offenders.............................................184
Figure 8-18: Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty and Subject to a Mandatory
Minimum Penalty by Offender Function and Primary Drug Type:
Powder Cocaine Offenders .............................................................186
Figure 8-19: Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty Who Were Relieved of the
Penalty by Offender Function: Powder Cocaine Offenders ..........187
Figure 8-20: Number of Crack Cocaine Offenders Convicted of an
Offense Carrying a Drug Mandatory Minimum Penalty
by District ......................................................................................194
Figure 8-21: Percent of Crack Cocaine Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty Who Were
Relieved of the Penalty ...................................................................195
Figure 8-22: Average Sentence Length by Race of Crack Cocaine Offenders
Convicted of an Offense Carrying a Drug Mandatory Minimum
Penalty ............................................................................................197
Figure 8-23: Race of Crack Cocaine Offenders by Criminal History
Category ..........................................................................................198

xiii

Figure 8-24: Race of Crack Cocaine Offenders Convicted of an
Offense Carrying a Drug Mandatory Minimum Penalty by
Criminal History Category .............................................................198
Figure 8-25: Race of Crack Cocaine Offenders Relieved from a
Drug Mandatory Minimum Penalty at Sentencing by
Criminal History Category .............................................................199
Figure 8-26: Race of Crack Cocaine Offenders Subject to a
Drug Mandatory Minimum Penalty at Sentencing by
Criminal History Category .............................................................200
Figure 8-27: Average Guideline Minimum and Average Sentence for
Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty: Substantial Assistance,
Crack Cocaine Offenders ................................................................202
Figure 8-28: Average Guideline Minimum and Average Sentence for
Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty: Non-Substantial Assistance Below Range
Sentence, Crack Cocaine Offenders ...............................................202
Figure 8-29: Percent of Offenders Convicted of a Drug Mandatory Minimum
Penalty and Subject to a Mandatory Minimum Penalty
After Relief by Offender Function and Primary DrugType:
Crack Cocaine Offenders ................................................................204
Figure 8-30: Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty Who Were Relieved of the
Penalty by Offender Function: Crack Cocaine Offenders ............205
Figure 8-31: Number of Marijuana Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty by District ..........213
Figure 8-32: Percent of Marijuana Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty
Who Were Relieved of the Penalty ................................................214
Figure 8-33: Average Guideline Minimum and Average Sentence for
Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty: Substantial Assistance,
Marijuana Offenders ......................................................................217

xiv

Figure 8-34: Average Guideline Minimum and Average Sentence for Offenders
Convicted of an Offense Carrying a Drug Mandatory Minimum
Penalty: Non-Substantial Assistance Below Range Sentence,
Marijuana Offenders ......................................................................217
Figure 8-35: Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty and Subject to a Mandatory Minimum
Penalty by Offender Function and Primary Drug
Type: Marijuana Offenders ...........................................................219
Figure 8-36: Percent of Marijuana Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty Who Were
Relieved of the Penalty by Offender Function:
Marijuana Offenders .......................................................................220
Figure 8-37: Number of Methamphetamine Offenders Convicted of an
Offense Carrying a Drug Mandatory Minimum Penalty
by District .......................................................................................227
Figure 8-38: Percent of Methamphetamine Offenders Convicted of an
Offense Carrying a Drug Mandatory Minimum Penalty
Who Were Relieved of the Penalty ................................................228
Figure 8-39: Average Guideline Minimum and Average Sentence for Offenders
Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty: Substantial Assistance,
Methamphetamine Offenders .........................................................232
Figure 8-40: Average Guideline Minimum and Average Sentence for Offenders
Convicted of an Offense Carrying a Drug Mandatory Minimum
Penalty: Non-Substantial Assistance Below Range Sentence,
Methamphetamine Offenders .........................................................232
Figure 8-41: Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty and Subject to a Mandatory
Minimum Penalty by Offender Function and
Primary Drug Type: Methamphetamine Offenders ........................234
Figure 8-42: Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty Who Were Relieved of the
Penalty by Offender Function:
Methamphetamine Offenders .........................................................235

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Figure 8-43: Number of Heroin Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty by District ...........242
Figure 8-44: Percent of Heroin Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty Who Were
Relieved of the Penalty ...................................................................243
Figure 8-45: Average Guideline Minimum and Average Sentence for
Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty: Substantial Assistance,
Heroin Offenders ............................................................................246
Figure 8-46: Average Guideline Minimum and Average Sentence for Offenders
Convicted of an Offense Carrying a Drug Mandatory Minimum
Penalty: Non-Substantial Assistance Below Range Sentence,
Heroin Offenders ............................................................................246
Figure 8-47: Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty and Subject to Mandatory Minimum
Penalty by Offender Function and Primary Drug Type:
Heroin Offenders ............................................................................248
Figure 8-48: Percent of Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty Who Were Relieved of the
Penalty By Offender Function: Heroin Offenders ..........................249
Figure 8-49: Drug Offender Eligibility for 21 U.S.C. § 851 Penalty
Enhancement by District.................................................................255
Figure 8-50: Application of 21 U.S.C. § 851 Penalty Enhancement for
Eligible Drug Offenders by District ...............................................256
Figure 8-51: Race of Drug Offenders by Exposure to 21 U.S.C. § 851
Penalty Enhancement ......................................................................257
Figure 8-52: Application of 21 U.S.C. § 851 Penalty Enhancement by
Race of Offenders ...........................................................................258
Figure 8-53: Drug Type for Drug Offenders by Exposure to 21 U.S.C. § 851
Penalty Enhancement ......................................................................259
Figure 8-54: Application of 21 U.S.C. § 851 Penalty Enhancement by
Drug Type .......................................................................................260
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Figure 9-1:

Plea and Trial Rate for Firearm Offenders Convicted of an
Offense Under 18 U.S.C. § 924(c) .................................................275

Figure 9-2:

Number of Offenders Convicted of an Offense Under
18 U.S.C. § 924(c) by District ........................................................277

Figure 9-3:

Number of Offenders Convicted of Multiple Offenses Under
18 U.S.C. § 924(c) by District ........................................................278

Figure 9-4:

Average Sentence Length for Firearm Offenders Convicted
of an Offense Under 18 U.S.C. § 924(c) ........................................279

Figure 9-5:

Percent of Firearm Offenders Convicted of an Offense
Under 18 U.S.C. § 924(c) Who Were Relieved of the
Penalty ............................................................................................281

Figure 9-6:

Number of Offenders Subject to Armed Career Criminal
Provision by District .......................................................................285

Figure 9-7:

Average Sentence Length for Offenders Subject to Armed
Career Criminal Provision ..............................................................286

Figure 9-8:

Percent of Firearm Offenders Subject to Armed Career Criminal
Provision Who Were Relieved of the Penalty ................................288

Figure 10-1: Sexual Abuse/Pornography Offenders Convicted of an Offense
Carrying a Mandatory Minimum Penalty .......................................301
Figure 10-2: Number of Sexual Abuse Offenders Convicted of an Offense
Carrying a Mandatory Minimum Penalty by District .....................306
Figure 10-3: Number of Child Pornography Offenders Convicted of an Offense
Carrying a Mandatory Minimum Penalty by District .....................307
Figure 10-4: Percent of Sexual Abuse Offenders Convicted of an Offense
Carrying a Mandatory Minimum Penalty Who Were Relieved
of the Penalty ..................................................................................308
Figure 10-5: Percent of Child Pornography Offenders Convicted of an Offense
Carrying a Mandatory Minimum Penalty Who Were
Relieved of the Penalty ...................................................................309

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Figure 10-6: Average Sentence Length by Mandatory Minimum Status for
Sexual Abuse Offenders .................................................................310
Figure 10-7: Average Sentence Length by Mandatory Minimum Status for
Child Pornography Offenders .........................................................311
Figure 10-8: Average Guideline Minimum and Average Sentence for Offenders
Convicted of an Offense Carrying a Sexual Abuse Mandatory
Minimum Penalty: Substantial Assistance Offenders ...................314
Figure 10-9: Average Guideline Minimum and Average Sentence for Offenders
Convicted of an Offense Carrying a Sexual Abuse Mandatory
Minimum Penalty: Non-Substantial Assistance Below Range
Offenders ........................................................................................314
Figure 10-10: Average Guideline Minimum and Average Sentence for
Offenders Convicted of an Offense Carrying a Child
Pornography Mandatory Minimum Penalty: Substantial
Assistance Offenders ......................................................................315
Figure 10-11: Average Guideline Minimum and Average Sentence for Offenders
Convicted of an Offense Carrying a Child Pornography Mandatory
Minimum Penalty: Non-Substantial Assistance Below Range
Offenders ........................................................................................315
Figure 10-12: Most Serious Offense of Conviction for Child Pornography
Offenders ........................................................................................317
Figure 10-13: Distribution Conduct Among Offenders Convicted Only of
Simple Possession ...........................................................................318
Figure 11-1: Percent of Identity Theft Offenders Convicted of an Offense
Under 18 U.S.C. § 1028A ...............................................................330
Figure 11-2: Plea and Trial Rates of Identity Theft Offenders by Mandatory
Minimum Status ..............................................................................333
Figure 11-3: Number of Offenders Convicted of an Offense Under
18 U.S.C. § 1028A ..........................................................................334
Figure 11-4: Criminal History Category of Identity Theft Offenders by
Mandatory Minimum Status ...........................................................336

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Figure 11-5: Average Sentence Length for Identity Theft Offenders by
Mandatory Minimum Status ...........................................................337
Figure 11-6: Percent of Identity Theft Offenders Convicted of an Offense
Under 18 U.S.C. § 1028A Who Were Relieved of
the Penalty ......................................................................................338
Figure 11-7: Average Sentence by Race and Mandatory Minimum Status of
Identity Theft Offenders .................................................................340
Figure 11-8: Race of Offenders Convicted of an Offense Under
18 U.S.C. § 1028A by Criminal History Category ........................341
Figure D-1: Percentage of Drug Offenders in Prison Not Convicted of an
Offense Carrying a Mandatory Minimum, Convicted of an
Offense Carrying a Mandatory Minimum Penalty and
Subject to a Mandatory Minimum Penalty at Sentencing ........... D-61
Figure D-2: Distribution of Offender Function ............................................... D-61
Figure D-3: Percent of All Offenders In Which the Aggravating Role
Adjustment Applied and for Offenders Convicted of an Offense
Carrying a Mandatory Minimum Penalty by
Offender Function ........................................................................ D-62
Figure D-4: Percent of All Offenders In Which the Mitigating Role Adjustment
Applied and for Offenders Convicted of an Offense Carrying a
Mandatory Minimum Penalty By Offender Function ................. D-62
Figure D-5: Race of All Powder Cocaine Offenders by Criminal History
Category ....................................................................................... D-63
Figure D-6: Race of Powder Cocaine Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty by
Criminal History Category .......................................................... D-63
Figure D-7: Race of Powder Cocaine Offenders Relieved from a Drug
Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-64
Figure D-8: Race of Powder Cocaine Offenders Subject to a Drug
Mandatory Minimum Penalty at Sentencing
by Criminal History Category .................................................... D-64
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Figure D-9: Citizenship of All Powder Cocaine Offenders by
Criminal History Category .......................................................... D-65
Figure D-10: Citizenship of Powder Cocaine Offenders Convicted of an
Offense Carrying a Drug Mandatory Minimum Penalty by
Criminal History Category .......................................................... D-65
Figure D-11: Citizenship of Powder Cocaine Offenders Relieved from a
Drug Mandatory Minimum Penalty at Sentencing by Criminal
History Category .......................................................................... D-66
Figure D-12: Citizenship of Powder Cocaine Offenders Subject to a Drug
Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-66
Figure D-13: Race of Powder Cocaine Offenders by Length of Drug
Mandatory Minimum Penalty ...................................................... D-67
Figure D-14: Percentage of Offenders in Prison Not Convicted of an
Offense Carrying a Mandatory Minimum, Convicted of
an Offense Carrying a Mandatory Minimum Penalty
and Subject to a Mandatory Minimum Penalty at
Sentencing: Powder Cocaine Offenders ..................................... D-67
Figure D-15: Distribution of Offender Function by Primary Drug Type:
Powder Cocaine Offenders .......................................................... D-68
Figure D-16: Citizenship of All Crack Cocaine Offenders by
Criminal History Category .......................................................... D-68
Figure D-17: Citizenship of Crack Cocaine Offenders Convicted of an
Offense Carrying a Drug Mandatory Minimum Penalty by
Criminal History Category .......................................................... D-69
Figure D-18: Citizenship of Crack Cocaine Offenders Relieved from a
Drug Mandatory Minimum Penalty at Sentencing By
Criminal History Category .......................................................... D-69
Figure D-19: Citizenship of Crack Cocaine Offenders Subject to a Drug
Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-70

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Figure D-20: Race of Crack Cocaine Offenders by Length of Drug
Mandatory Minimum Penalty ...................................................... D-70
Figure D-21: Percentage of Offenders in Prison Not Convicted of an Offense
Carrying a Mandatory Minimum, Convicted of an Offense
Carrying a Mandatory Minimum Penalty and
Subject to a Mandatory Minimum Penalty at
Sentencing: Crack Cocaine Offenders ......................................... D-71
Figure D-22: Distribution of Offender Function by Primary Drug Type:
Crack Cocaine Offenders ............................................................. D-71
Figure D-23: Race of All Marijuana Offenders by Criminal History
Category ....................................................................................... D-72
Figure D-24: Race of Marijuana Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty by
Criminal History Category .......................................................... D-72
Figure D-25: Race of Marijuana Offenders Relieved from a Drug
Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-73
Figure D-26: Race of Marijuana Offenders Subject to a Drug Mandatory
Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-73
Figure D-27: Citizenship of All Marijuana Offenders by Criminal
History Category ......................................................................... D-74
Figure D-28: Citizenship of Marijuana Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty by
Criminal History Category .......................................................... D-74
Figure D-29: Citizenship of Marijuana Offenders Relieved from a Drug
Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-75
Figure D-30: Citizenship of Marijuana Offenders Subject to a Drug Mandatory
Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-75

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Figure D-31: Race of Marijuana Offenders by Length of Drug Mandatory
Minimum Penalty ........................................................................ D-76
Figure D-32: Average Sentence Length by Race of Marijuana Offenders
Convicted of an Offense Carrying a Drug Mandatory Minimum
Penalty ......................................................................................... D-76
Figure D-33: Percentage of Offenders in Prison Not Convicted of an Offense
Carrying a Mandatory Minimum, Convicted of an Offense Carrying
a Mandatory Minimum Penalty, and Subject to a Mandatory
Minimum Penalty at Sentencing: Marijuana Offenders ............. D-77
Figure D-34: Distribution of Offender Function by Primary Drug Type:
Marijuana Offenders .................................................................... D-77
Figure D-35: Race of All Methamphetamine Offenders by Criminal History
Category ....................................................................................... D-78
Figure D-36: Race of Methamphetamine Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty by
Criminal History Category .......................................................... D-78
Figure D-37: Race of Methamphetamine Offenders Relieved from a Drug
Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-79
Figure D-38: Race of Methamphetamine Offenders Subject to a Drug Mandatory
Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-79
Figure D-39: Citizenship of All Methamphetamine Offenders by
Criminal History Category .......................................................... D-80
Figure D-40: Citizenship of Methamphetamine Offenders Convicted of an
Offense Carrying a Drug Mandatory Minimum Penalty by
Criminal History Category .......................................................... D-80
Figure D-41: Citizenship of Methamphetamine Offenders Relieved from a
Drug Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-81

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Figure D-42: Citizenship of Methamphetamine Offenders Subject to a Drug
Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-81
Figure D-43: Race of Methamphetamine Offenders by Length of
Drug Mandatory Minimum Penalty............................................. D-82
Figure D-44: Average Sentence Length by Race of Methamphetamine
Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty ...................................................... D-82
Figure D-45: Percentage of Offenders in Prison Not Convicted of an Offense
Carrying a Mandatory Minimum, Convicted of an Offense
Carrying a Mandatory Minimum Penalty, and Subject to a
Mandatory Minimum Penalty at Sentencing:
Methamphetamine Offenders ...................................................... D-83
Figure D-46: Distribution of Offender Function by Primary Drug Type:
Methamphetamine Offenders ...................................................... D-83
Figure D-47: Race of All Heroin Offenders by Criminal History
Category ....................................................................................... D-84
Figure D-48: Race of Heroin Offenders Convicted of an Offense Carrying a
Drug Mandatory Minimum Penalty by
Criminal History Category .......................................................... D-84
Figure D-49: Race of Heroin Offenders Relieved from a Drug
Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-85
Figure D-50: Race of Heroin Offenders Subject to a Drug
Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-85
Figure D-51: Citizenship of All Heroin Offenders by
Criminal History Category .......................................................... D-86
Figure D-52: Citizenship of Heroin Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty by
Criminal History Category .......................................................... D-86

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Figure D-53: Citizenship of Heroin Offenders Relieved from a Drug
Mandatory Minimum Penalty at Sentencing by
Criminal History Category .......................................................... D-87
Figure D-54: Citizenship of Heroin Offenders Subject to a Drug Mandatory
Minimum Penalty at Sentencing by Criminal History
Category ....................................................................................... D-87
Figure D-55: Race of Heroin Offenders by Length of Drug Mandatory
Minimum Penalty ........................................................................ D-88
Figure D-56: Average Sentence Length by Race of Heroin Offenders
Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty ...................................................... D-88
Figure D-57: Percentage of Offenders in Prison Not Convicted of an
Offense Carrying a Mandatory Minimum, Convicted of an
Offense Carrying a Mandatory Minimum Penalty, and
Subject to a Mandatory Minimum Penalty at Sentencing:
Heroin Offenders ......................................................................... D-89
Figure D-58: Distribution of Offender Function by Primary Drug Type:
Heroin Offenders ......................................................................... D-89

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Executive Summary
A.

OVERVIEW AND RECOMMENDATIONS
1.

Introduction

This report assesses the impact of mandatory minimum penalties on federal sentencing,
particularly in light of the Supreme Court’s decision in Booker v. United States, which rendered
the federal sentencing guidelines advisory. The United States Sentencing Commission
[hereinafter the Commission] prepared this report pursuant to a congressional directive contained
in section 4713 of the Matthew Shepherd and James Byrd, Jr. Hate Crimes Prevention Act of
2009, Pub L. No. 111–84, and the Commission’s general authority under 28 U.S.C. §§ 994–995,
as well as its specific authority under 28 U.S.C. § 995(a)(20) to “make recommendations to
Congress concerning modification or enactment of statutes relating to sentencing, penal, and
correctional matters that the Commission finds to be necessary and advisable to carry out an
effective, humane, and rational sentencing policy.”
Chapter 1 explains the methodology and definitions used by the Commission to prepare
this report. For purposes of this report, the Commission considered an offender to have been
“convicted of” an offense carrying a mandatory minimum penalty if the court so indicated on a
statement of reasons form or other sentencing documentation received by the Commission. This
report refers to an offender convicted of an offense carrying a mandatory minimum penalty who
received a lower sentence due to operation of one of two relief mechanisms (commonly known
as “substantial assistance” and the “safety valve”) as having been “relieved from application of”
a mandatory minimum penalty. If neither of these two mechanisms apply to an offender
convicted of an offense carrying a mandatory minimum penalty, this report refers to that
offender as having been “subject to” a mandatory minimum penalty at the time of sentencing.
The Commission reviewed legislation, analyzed sentencing data, and studied scholarly
literature to prepare this report. The Commission sought the views of stakeholders in the
criminal justice system in a variety of ways. The Commission consulted with its advisory groups
and representatives from all three branches of the federal government, and heard from social
scientists, scholars, and others who apply or study mandatory minimum sentencing provisions.
2.

History of Mandatory Minimum Penalties and Statutory Relief Mechanisms

As detailed in Chapter 2 of this report, mandatory minimum penalties have historically
been prescribed for a core set of serious offenses, such as murder and treason, and also have been
enacted to address immediate problems and exigencies. Beginning in the mid-twentieth century,
however, Congress changed how it used mandatory minimum penalties in three significant ways.
First, Congress enacted more mandatory minimum penalties. Second, Congress expanded its use
of mandatory minimum penalties to offenses not traditionally covered by such penalties. Today,
the majority of convictions under statutes carrying mandatory minimum penalties relate to
controlled substances, firearms, identity theft, and child sex offenses. Third, Congress enacted
mandatory minimum penalties that are generally lengthier than mandatory minimum penalties in
earlier eras.

xxv

Congress has provided mechanisms by which a district court may impose a term of
imprisonment lower than an otherwise applicable mandatory minimum penalty prescribed by
statute in certain cases. Chapter 2 discusses two related provisions that allow a district court to
impose a term of imprisonment lower than a mandatory minimum penalty in cases where a
defendant provides substantial assistance in the investigation or prosecution of another person.
The chapter also discusses the historical development of the safety valve provision, which
provides relief from the applicable mandatory minimum penalty for certain low-level drug
offenders.
3.

The Interaction Between Mandatory Minimum Penalties and the Sentencing
guidelines

The statutory directive requires the Commission to assess the compatibility of mandatory
minimum penalties with the federal guideline system established under the Sentencing Reform
Act and as modified by Booker. As part of that assessment, Chapter 3 presents an overview of
the interaction between mandatory minimum penalties and the sentencing guidelines. First, the
chapter provides a history of the Sentencing Reform Act, its directives to the Commission, the
operation of the guidelines, and an overview of how the Commission promulgates amendments
to the guidelines. Next, the chapter describes how the guidelines incorporate mandatory
minimum penalties in formulating sentencing ranges for various offenses. Finally, the chapter
discusses the significant structural differences in how the guidelines and mandatory minimum
penalties determine sentences. In sum, the chapter concludes that the guidelines’ flexibility
increases the likelihood that offenders with similar criminal histories convicted of similar
offenses will receive similar sentences and that dissimilar offenders will receive different
sentences. The guidelines measure offense severity using a variety of facts and, as a result, draw
more precise distinctions among offenders.
4.

Changes in the Federal Criminal Justice System, Mandatory Minimum Penalties,
and the Federal Prison Population

Chapter 4 addresses the requirement in the statutory directive to assess the impact of
mandatory minimum penalties on the federal prison population. The chapter describes how
statutes carrying mandatory minimum penalties have increased in number, apply to more offense
conduct, require longer terms, and are used more often than they were 20 years ago. The chapter
also discusses other systemic changes to the federal criminal justice system, including expanded
federalization of criminal law, increased size and changes in the composition of the federal
criminal docket, high rates of imposition of sentences of imprisonment, and increasing average
sentence lengths. The changes to mandatory minimum penalties and these co-occurring systemic
changes have combined to increase the federal prison population significantly.
5.

Policy Views About Mandatory Minimum Penalties

Chapter 5 presents the range of policy positions supporting and opposing mandatory
minimum sentencing provisions expressed by stakeholders in the federal criminal justice system.
In particular, disagreements concerning mandatory minimum penalties center on whether such

xxvi

penalties establish appropriate sentences, reduce unwarranted sentencing disparities, and serve as
effective as investigative and resource-preserving tools.
6.

The Use of Mandatory Minimum Penalties in Selected Districts

Chapter 6 summarizes the results of the Commission staff interviews of prosecutors and
defenses attorneys in 13 selected districts. The Commission conducted the interviews to aid the
Commission in responding to those provisions of the statutory directive requiring “an assessment
of the effect of mandatory minimum sentencing provisions under Federal law on the goal of
eliminating unwarranted sentencing disparity and other goals of sentencing,” and “a description
of the interaction between mandatory minimum sentencing provisions under Federal law and
plea agreements.” During these interviews, the Commission learned that inconsistencies in
application of mandatory minimum penalties exist between districts, and often within districts,
where individual prosecutors exercise their discretion differently. In part, these differences may
have developed to avoid the overly severe consequences that result from certain mandatory
minimum penalties applying in individual cases.
7.

Overview of Data Analyses

The statutory directive requires the Commission to provide a detailed empirical research
study of the effect of mandatory minimum penalties under federal law. Chapter 7 details the
results of the Commission’s data analyses of the application of mandatory minimum penalties for
all offenses. The statutory directive also directs the Commission to provide an assessment of the
impact of mandatory minimum sentencing provisions on the federal prison population. Chapter
7 provides an overall assessment of the prison impact of statutes carrying mandatory minimum
penalties.
Chapter 7 describes the dataset used for the analyses in this report. In fiscal year 2010,
the Commission received sentencing information on 83,946 individual offenders. The
Commission excluded 11,068 cases because those cases lacked the complete documentation
needed for all the analyses performed in this report. Accordingly, the total number of cases used
in the analyses in this report was 73,239 (87.2% of all cases reported to the Commission in fiscal
year 2010). Because the analyses for this report were limited to these cases, the numbers
reported in this report differ from those reported in the Commission’s 2010 Sourcebook of
Federal Sentencing Statistics, which uses a larger dataset.
The analyses presented in Chapter 7 demonstrate the following:
•

More than one-quarter of the 73,239 offenders sentenced in the federal courts in fiscal
year 2010 (27.2%, n=19,896) included in this analysis were convicted of an offense
carrying a mandatory minimum penalty.

•

Over three-quarters (77.4%) of convictions of an offense carrying a mandatory minimum
penalty were for drug trafficking offenses.

xxvii

•

Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an
offense carrying a mandatory minimum penalty, followed by Black offenders at 31.5
percent, White offenders at 27.4 percent and Other Race offenders at 2.7 percent.

•

More than 90 percent (90.3%) of the offenders convicted of an offense carrying a
mandatory minimum penalty were men.

•

United States citizens accounted for 73.6 percent of all offenders convicted of an offense
carrying a mandatory minimum penalty.

•

Seven out of 94 districts accounted for 27.0 percent (n=5,367) of the 19,896 cases
involving a conviction of an offense carrying a mandatory minimum penalty in fiscal
year 2010.

•

Offenders convicted of an offense carrying a mandatory minimum penalty pled guilty at a
slightly lower rate (94.1%) than offenders who were not convicted of an offense carrying
a mandatory minimum penalty (97.5%). Furthermore, offenders facing longer mandatory
minimum penalties were less likely to plead guilty.

•

Offenders convicted of an offense carrying a mandatory minimum penalty but who were
eligible for the statutory safety valve relief pled guilty at a rate (99.4%) higher than for
both offenders convicted of an offense not carrying a mandatory minimum penalty
(97.5%) and offenders who were not eligible for safety valve relief (94.6%).

•

Almost half (46.7%) of offenders convicted of an offense carrying a mandatory minimum
penalty were relieved from the application of such a penalty at sentencing because they
provided substantial assistance to the government or qualified for the safety valve
provision, or both.
o

Black offenders received relief from a mandatory minimum penalty least often (in
34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other
Race (58.9%) offenders. Black offenders qualified for relief under the safety
valve at the lowest rate of any other racial group (11.1%), compared to White
(26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their
criminal history or the involvement of a dangerous weapon in connection with the
offense.

o

Prior to the enactment of the safety valve (in fiscal year 1994), Black and
Hispanic offenders received relief from the mandatory minimum penalty at
comparable rates (34.3% and 34.2%, respectively), although lower than Other
Race (46.4%) and White (44.2%) offenders. After enactment of the safety valve
provision, the rate at which Hispanic, White, and Other Race offenders obtained
relief from a mandatory minimum penalty increased appreciably, while the rate
for Black offenders did not.

xxviii

•

•

o

Female offenders obtained relief from a mandatory minimum penalty at
sentencing more often than male offenders (65.5% compared to 44.7%). Not only
did female offenders qualify for the safety valve at a higher rate than male
offenders (46.4% compared to 26.3%), but female offenders also received relief
by providing substantial assistance to the government at a higher rate (36.0%)
than male offenders (24.7%).

o

Non-citizens received relief from mandatory minimum penalties at sentencing
more often than United States citizens (64.6% compared to 40.3%). Although
United States citizen offenders provided substantial assistance to the government
at a higher rate (28.0%) than non-citizen offenders (19.8%), the majority of noncitizen offenders (54.4%) qualified for relief from the mandatory minimum
penalty under the safety valve, compared to United States citizens at 18.9 percent.

Only 14.5 percent of all federal offenders were subject to a mandatory minimum penalty
at sentencing.
o

Black offenders convicted of an offense carrying a mandatory minimum penalty
remained subject to a mandatory minimum penalty at sentencing at the highest
rate of any racial group, in 65.1 percent of their cases, followed by White
(53.5%), Hispanic (44.3%), and Other Race (41.1%).

o

Male offenders convicted of an offense carrying a mandatory minimum penalty
remained subject to the mandatory minimum penalty at sentencing more often
than female offenders (55.3% compared to 34.5%).

o

United States citizens convicted of an offense carrying a mandatory minimum
penalty remained subject to the mandatory minimum penalty at sentencing more
often than non-citizens (59.7% compared to 35.4%).

Receiving relief from an applicable mandatory minimum sentence made a significant
difference in the sentence ultimately imposed. Offenders who were convicted of an
offense carrying a mandatory minimum penalty and remained subject to that penalty at
sentencing received an average sentence of 139 months, compared to 63 months for those
offenders who received relief from a mandatory penalty.
o

Offenders who received relief from a mandatory minimum penalty by providing
substantial assistance to the government received longer average sentences than
offenders who received relief under the safety valve provision.

•

75,579 (39.4%) of the 191,757 offenders in BOP custody as of September 30, 2010, were
subject to a mandatory minimum penalty at sentencing.

•

Although the number of offenders in BOP custody who were subject to a mandatory
minimum penalty at sentencing has grown steadily over the past 20 years, the proportion
of such offenders in BOP custody has remained relatively stable.

xxix

Chapters 8 through 11 of this report present the results of the data analyses performed for
specified offenses types. The results of the analyses in those chapters are set forth in Part B,
infra.
8.

General Conclusions and Recommendations

The statutory directive requires the Commission to assess the compatibility of mandatory
minimum penalties with the federal guideline system established under the Sentencing Reform
Act and as modified by the Supreme Court’s decision in Booker v. United States and to discuss
mechanisms other than mandatory minimum sentencing laws by which Congress may take action
with respect to sentencing policy. To fulfill this part of the statutory directive, Chapter 12 first
provides general findings and conclusions regarding mandatory minimum penalties and the
federal sentencing guidelines and then provides specific recommendations regarding the four
major offense types studied in this report.
a.

Recommendations

The Commission makes the following specific recommendations for congressional
consideration:
•

A strong and effective sentencing guidelines system best serves the purposes of the
Sentencing Reform Act. Although the continued importance and influence of the
guidelines on sentencing decisions is evident from both Supreme Court decisions and
sentencing data, the Commission has observed increasing inconsistencies in sentencing
practices since Booker. The Commission is concerned about these developments and
stands ready to work with Congress on possible legislative reforms to strengthen and
improve the sentencing guidelines system.

•

If Congress decides to exercise its power to direct sentencing policy by enacting
mandatory minimum penalties, the Commission believes that such penalties should
(1) not be excessively severe, (2) be narrowly tailored to apply only to those offenders
who warrant such punishment, and (3) be applied consistently. Sentencing data and
interviews with prosecutors and defense attorneys indicate that mandatory minimum
penalties that are considered excessively severe tend to be applied inconsistently.

•

Congress should consider whether a statutory “safety valve” mechanism similar to the
one available for certain drug trafficking offenders at 18 U.S.C. § 3553(f) may be
appropriately tailored for low-level, non-violent offenders convicted of other offenses
carrying mandatory minimum penalties.

•

Congress should request prison impact analyses from the Commission as early as
possible in its legislative process whenever it considers enacting or amending mandatory
minimum penalties. The Commission believes that early analyses of prison impact may
assist Congress in focusing increasingly strained federal prison resources on offenders
who commit the most serious offenses.

xxx

•

Congress should consider marginally expanding the safety valve at 18 U.S.C. § 3553(f) to
include certain non-violent offenders who receive two, or perhaps three, criminal history
points under the federal sentencing guidelines.

•

Congress should reassess both the severity and scope of the recidivist provisions at
21 U.S.C. §§ 841 and 960.

• Congress should consider amending 18 U.S.C. § 924(c) so that the enhanced mandatory
minimum penalties for a “second or subsequent” offense apply only to prior convictions,
and should consider amending the penalties for such offenses to lesser terms.
• Congress should eliminate the “stacking” requirement and amend 18 U.S.C. § 924(c) to
give the sentencing court discretion to impose sentences for multiple violations of
section 924(c) concurrently with each other.
• Congress should consider clarifying the statutory definitions of the underlying and
predicate offenses that trigger mandatory penalties under 18 U.S.C § 924(c) and the
Armed Career Criminal Act to reduce the risk of inconsistent application and litigation
that those definitions have fostered. To further reduce the risk of inconsistent
application, Congress should also consider more finely tailoring the definitions of the
predicate offenses that trigger the Armed Career Criminal Act’s mandatory minimum
penalty.
•

The Commission’s preliminary review of the available sentencing data suggests that the
mandatory minimum penalties for certain non-contact child pornography offenses may be
excessively severe and as a result are being applied inconsistently. The Commission is
undertaking a more comprehensive study of child pornography offenses and expects to
issue a report in the near future.

•

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.
b.

Conclusion

The Commission intends for the information contained in this report to contribute to the
ongoing assessment of mandatory minimum penalties by Congress and others in the federal
criminal justice system. While there is a spectrum of views among members of the Commission
regarding mandatory minimum penalties, the Commission continues to believe that a strong and
effective sentencing guidelines system best serves the purposes of the Sentencing Reform Act.
The Commission stands ready to work with Congress on measures that can be taken to enhance
the strength and effectiveness of the current guidelines system and address the problems with

xxxi

certain mandatory minimum penalties identified in this report. To that end, as required by the
Sentencing Reform Act, the Commission will continue providing timely and objective
sentencing data, information, and analysis to assist the efficient and effective exercise of
congressional power to direct sentencing policy.
B.

SUMMARY OF DATA ANALYSES BY OFFENSE TYPE

Chapters 8 through 11 of this report present the results of the data analyses by specified
offense types carrying mandatory minimum penalties. These chapters also discuss the prison
impact of those offenses.
1.

Drug Offenses

Chapter 8 details the results of the Commission’s data analyses of the application of
mandatory minimum penalties for drug offenses in fiscal year 2010. Some degree of caution
should be exercised in drawing conclusions from the crack cocaine data analyzed in this report
because the majority of the crack cocaine offenders sentenced in fiscal year 2010 were sentenced
before August 3, 2010, the date of enactment of the Fair Sentencing Act.
In sum, these analyses of demonstrate the following:
•

In fiscal year 2010, two of every three offenders convicted of an offense carrying a
mandatory minimum penalty were drug offenders. Almost half of all drug offenders
(48.7%) who were convicted of an offense carrying a mandatory minimum penalty were
convicted of an offense carrying a 10-year penalty.

•

The type of drug involved in drug cases significantly impacts the application of
mandatory minimum penalties. In fiscal year 2010, the highest rate of conviction of such
penalties was in methamphetamine cases (83.2%) while the lowest rate for the major drug
types was in marijuana cases (44.3%).

•

The demographic and offense characteristics of drug offenders vary widely by the type of
drug involved in the offense.
•

In fiscal year 2010, five of the 94 judicial districts reported more than 500 drug cases
involving a mandatory minimum penalty.

•

The Commission’s analysis of a 15-percent sample of fiscal year 2009 cases indicates
that the mandatory minimum penalties for drug offenses sweep more broadly than
Congress may have intended.
o

Among all drug cases, Courier was the most common function, representing 23.0
percent of all offenders, followed by Wholesaler (21.2%), Street-Level Dealer
(17.2%), and High-Level Supplier/Importer (10.9%).

xxxii

o

The majority of offenders in nearly every function, including low-level Secondary
and Miscellaneous functions, were convicted of an offense carrying a mandatory
minimum penalty, although higher level functions tended to be convicted of such
statutes at higher rates.

o

The Commission’s analysis found that, for every function, the quantity of drugs
involved in the offense resulted in a base offense level that included or exceeded
the five-year mandatory minimum penalty.

o

Furthermore, the Commission’s analysis revealed that the quantity of drugs
involved in an offense was not closely related to the offender’s function in the
offense.

o

As a result of the combined effect of the safety valve and applicable guideline
adjustments, offenders performing lower-level functions received significantly
shorter sentences overall than offenders performing higher-level functions. For
example, Mules (29 months) and Couriers (39 months) received significantly
shorter average sentences than High Level Suppliers/Importers (101 months),
Organizer/Leaders (154 months), Wholesalers (103 months), and Managers (147
months).

•

In fiscal year 2010, drug offenders convicted of a statute carrying a mandatory minimum
penalty went to trial more than twice (4.5%) as often as drug offenders who were not
convicted of an offense carrying a mandatory minimum penalty (1.6%). Furthermore, on
average, the longer the mandatory minimum penalty an offender was facing, the less
likely the offender was to plead guilty.

•

In fiscal year 2010, more than half (54.4%) of drug offenders convicted of an offense
carrying a mandatory minimum penalty received relief from the mandatory minimum
penalty. One-quarter (26.1%) of these offenders received relief through operation of the
safety valve alone; 19.3 percent by providing substantial assistance to the government;
and 9.0 percent through both the safety valve and substantial assistance provisions.

•

The analysis of the 15-percent sample of fiscal year 2009 cases revealed that the rate at
which offenders received relief from a mandatory minimum penalty varied by function,
but did so differently depending on the type of relief. Offenders who performed highlevel functions generally obtained relief for substantial assistance at higher rates than
offenders who performed low-level functions. Offenders who performed low-level
functions were more likely to obtain relief through the safety valve provision than were
offenders who performed high-level functions.

•

In fiscal year 2010, the rate at which offenders received relief from the mandatory
minimum penalty through these provisions varied by race, gender, and citizenship.
o

Other Race offenders qualified for some form of relief from a mandatory
minimum penalty most often, in 72.3 percent of the cases in which they were

xxxiii

convicted of an offense carrying such a penalty, followed by White (63.7%) and
Hispanic (59.0%) offenders. Black offenders qualified for relief from mandatory
minimum penalties least often, in 39.4 percent of the cases in which they were
convicted of an offense carrying such a penalty.

o

o



Black offenders received substantial assistance relief alone from a
mandatory minimum penalty most often, in 25.0 percent of their offenses
carrying such a penalty, followed by White (24.2%) and Other Race
(23.9%) offenders. Hispanic offenders received relief from mandatory
minimum penalties through substantial assistance the least often, in 12.6
percent of their cases.



Hispanic offenders received safety valve relief alone most often, in 36.8
percent of their cases, followed by Other Race (29.5%) and White (26.9%)
and offenders. Black offenders received relief from mandatory minimum
penalties through the safety valve the least often, in 9.8 percent of their
cases.



Other Race offenders received relief from a mandatory minimum penalty
through a combination of substantial assistance and safety valve relief
most often, in 18.9 percent of their cases, followed by White (12.6%),
Hispanic (9.5%) and Black (4.6%) offenders

Female offenders qualified for some form of relief from a mandatory minimum
penalty in 73.0 percent of the cases in which they were convicted of an offense
carrying such a penalty.


Male offenders received substantial assistance relief alone from a
mandatory minimum penalty more often, in 19.5 percent of their cases,
compared to female offenders (18.2%).



Female offenders received safety valve relief alone more often, in 35.0
percent of their cases, compared to male offenders (25.1%).



Female offenders also received relief from a mandatory minimum penalty
through a combination of substantial assistance and safety valve relief
more often in 19.7 percent of their cases, compared to 7.8 percent of cases
involving male offenders.

Non-citizen drug offenders received relief from the mandatory minimum penalty
at a higher rate (69.5%) than United States citizen drug offenders (48.0%).


United States citizen drug offenders received substantial assistance relief
alone from a mandatory minimum penalty more often, in 23.4 percent of
their cases, compared to non-citizen offenders (9.8%).

xxxiv



Non-citizen offenders received safety valve relief alone more often, in
49.3 percent of their cases, compared to United States citizens (16.2%).



Non-citizen offenders also received relief from a mandatory minimum
penalty through a combination of substantial assistance and safety valve
relief more often, in 10.4 percent of their cases, compared to 8.4 percent of
cases involving United States citizens.

•

In fiscal year 2010, courts imposed a sentence within the applicable guideline range in
fewer than half (43.7%) of all cases involving an offense carrying a mandatory minimum
penalty. In 28.3 percent of such cases, the sentence was below the applicable guidelines
range at the request of the government because the offender had provided substantial
assistance to the government in the investigation of another offense.

•

In fiscal year 2010, the average extent of substantial assistance departures in drug
offenses was 48.8 percent (67 months) from the minimum of the otherwise applicable
guideline range. However, the average extent of substantial assistance departures varied
by major drug type.

•

o

The average extent of substantial assistance departures in powder cocaine cases
was 48.6 percent (66 months).

o

The average extent of substantial assistance departures in crack cocaine cases was
49.7 percent (87 months). This was the highest in number of months for any
major drug type.

o

In fiscal year 2010, the average extent of substantial assistance departures in
marijuana cases was 52.5 percent (40 months) from the bottom of the otherwise
applicable guideline range. This was lowest in number of months for any major
drug type.

o

The average extent of substantial assistance departures in methamphetamine cases
was 45.2 percent (66 months).

o

In fiscal year 2010, the average extent of substantial assistance departures in
heroin cases was 52.8 percent (61 months) from the bottom of the otherwise
applicable guideline range. This was the highest percentage for any major drug
type.

In fiscal year 2010, the average extent of non-government sponsored below range
sentences in drug offenses that carried a mandatory minimum penalty was 29.8 percent
(34 months) from the minimum of the otherwise applicable guideline range.
o

The average extent of non-government sponsored below range sentences in
powder cocaine cases that carried a mandatory minimum penalty was 29.0 percent
(31 months).

xxxv

o

The average extent of non-government sponsored below range sentences in crack
cocaine cases was 30.3 percent (45 months). This was the highest in number of
months for any major drug type.

o

The average extent of non-government sponsored below range sentences in
marijuana cases was 35.5 percent (21 months). This was the highest percentage
for any major drug type, but the lowest in number of months.

o

The average extent of non-government sponsored below range sentences in
methamphetamine cases was 26.1 percent (32 months) from the bottom of the
otherwise applicable guideline range. This was the lowest percentage for any
major drug type.

o

The average extent of non-government sponsored below range sentences in heroin
cases was 31.3 percent (27 months).

•

In fiscal year 2010, 45.6 percent of drug offenders convicted of an offense carrying a
mandatory minimum penalty were subject to the mandatory minimum penalty at
sentencing.

•

In fiscal year 2010, the rate at which drug offenders convicted of an offense carrying a
mandatory minimum penalty were subject to the mandatory minimum penalty at
sentencing varied by race, gender and citizenship.
o

Black offenders were subject to the mandatory minimum penalty at sentencing
most often, in 60.6 percent of their offenses carrying such a penalty, followed by
Hispanic (41.0%) and White (36.3%) offenders. Other Race offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 27.7
percent of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (47.7% of their cases, compared to 27.0% of
cases involving female offenders).

o

United States citizens were subject to the mandatory minimum penalty at
sentencing more often than non-citizens offenders (52.0% of their cases,
compared to 30.5% of cases involving non-citizen offenders).

• The average sentence for drug offenders convicted of an offense carrying a mandatory

minimum varied, and was largely dependent upon the type of drug involved in the
offense and whether the offender obtained relief from the mandatory minimum penalty.
o

The average sentence for powder cocaine offenders who remained subject to the
mandatory minimum penalty was 138 months and the average sentence for those

xxxvi

offenders who obtained relief from the mandatory minimum penalty was 62
months.

•

•

o

The average sentence for crack cocaine offenders who remained subject to a
mandatory minimum penalty was 139 months. The average sentence for crack
cocaine offenders who obtained relief from a mandatory minimum penalty was 80
months, which was the highest for any major drug type.

o

Marijuana offenders received the lowest sentences of any major drug type. The
average sentence for marijuana offenders who remained subject to a mandatory
minimum penalty was 93 months and the average sentence for marijuana
offenders who obtained relief from a mandatory minimum penalty was 34
months.

o

Methamphetamine offenders who remained subject to a mandatory minimum
penalty received the highest sentences of any major drug type. The average
sentence for methamphetamine offenders who remained subject to a mandatory
minimum penalty was 144 months. The average sentence for methamphetamine
offenders who obtained relief from a mandatory minimum penalty was 72
months.

o

The average sentence for heroin offenders who remained subject to a mandatory
minimum penalty at the time of sentencing was 119 months. The average
sentence for heroin offenders who obtained relief from a mandatory minimum
penalty was 51 months.

The Commission’s analyses of a sample of cases from fiscal years 2006, 2008, and 2009
indicates that in the majority of the districts, at least one quarter of all drug offenders
were eligible for enhancement under section 851.
o

In 62 of 94 judicial districts (66.0%), the rates of drug offenders eligible for
enhancement under section 851 were between 25 and 49 percent.

o

In 29 districts (30.8%), the rates of eligible drug offenders were between 50 and
74 percent.

o

There were only three districts (3.2%) in which less than 25 percent of drug
offenders were eligible for enhancement.

The Commission’s analysis of a sample of cases from fiscal years 2006, 2008, and 2009
revealed significant variation in the manner in which the enhancement provision was
applied.
o

In six districts, more than 75 percent of eligible defendants received the increased
mandatory minimum penalty as an enhancement.

xxxvii

o

In contrast, in eight districts, none of the eligible drug offenders received the
enhanced penalty.

•

More than half (58.0%) of Black offenders were eligible for the enhancement, but only
17.3 percent received it. More than one-third (36.5%) of White offenders were eligible
for the enhancement while 9.1 percent received it. Hispanic offenders were eligible in
30.5 percent of their cases, but 6.0 percent received the enhancement. Finally, 24.1
percent of Other Race offenders were eligible for the enhancement, while 6.0 percent
received it.

•

Black offenders who were eligible to receive the enhanced penalty received it in 29.9
percent of the cases. This rate was only slightly higher than the rates for White offenders
(25.0%) and Other Race offenders (24.8%). Eligible Hispanic offenders received the
enhanced penalty at the lowest rate of any racial group (19.9%).

•

Within each drug type the number of offenders who were eligible for the enhancement
was higher than the number of offenders who received the enhancement.

•

Crack cocaine offenders had the highest application rate (29.9%) of the enhancement,
followed by powder cocaine offenders (26.9%) and methamphetamine offenders (25.2%).
heroin drug offenders received the enhancement least often (20.0%).

•

At the end of fiscal year 2010, slightly more than half (53.8%, n=103,194) of the 191,757
offenders incarcerated in the BOP were drug offenders.

•

o

13.4 percent (n=25,767) were powder cocaine offenders.

o

17.0 percent (n=32,694) were crack cocaine offenders.

o

6.5 percent (n=12,473) were marijuana offenders.

o

12.0 percent (n=22,935) were methamphetamine offenders.

o

3.0 percent (n=5,817) were heroin offenders.

Slightly more than half (52.9%, n=54,635) of these drug offenders were subject to a
mandatory minimum penalty at sentencing.
2.

Firearms Offenses

Chapter 9 details the results of the Commission’s data analyses of the application of
mandatory minimum penalties for firearm offenses. In sum, these analyses indicate the
following:
•

In fiscal year 2010, 2,294 (3.1%) offenders were convicted of an offense under section
924(c). Of the 2,294 offenders convicted of an offense under section 924(c), 2,147

xxxviii

(93.6%) were convicted of a single count of an offense under section 924(c) and 147
(6.4%) were convicted of multiple counts of an offense under section 924(c).

•

•

o

Over two-thirds of offenders convicted of a single count of an offense under
section 924(c) were convicted of offenses carrying a five- or seven-year
mandatory minimum penalty (64.8% and 22.7%, respectively). Only 3.7% of
offenders convicted of a single count of an offense under section 924(c) were
convicted of offenses carrying a mandatory minimum penalty of more than ten
years of imprisonment.

o

More than half of all offenders convicted of an offense under section 924(c) were
Black (55.9%). Less than one-quarter (21.0%) were Hispanic, followed by White
(20.1%) and Other Race (3.1%) offenders. Among offenders convicted of
multiple counts of an offense under section 924(c), 61.0 percent were Black, 21.2
percent were Hispanic, 15.1 percent were White, and 2.7 percent were Other
Race.

o

The overwhelming majority of all offenders convicted of an offense under section
924(c) (97.1%) and those offenders convicted of multiple counts of an offense
under section 924(c) (99.3%) were male.

o

United States citizens accounted for over 80 percent of all offenders convicted of
an offense under section 924(c) (86.7%) and those offenders convicted of multiple
counts of an offense under section 924(c) (84.4%).

In fiscal year 2010, 592 (0.8%) offenders qualified as an armed career criminal under
ACCA.
o

More than 60 percent of the offenders who qualified as an armed career criminal
under ACCA were Black (63.7%), followed by White (29.5%), Hispanic (5.2%),
and Other Race (1.5%) offenders.

o

The overwhelming majority of offenders who qualified as an armed career
criminal under ACCA were male (99.3%).

o

United States citizens accounted for 98.6 percent of offenders who qualified as an
armed career criminal under ACCA.

Cases involving a conviction of an offense under section 924(c) or involving offenders
who qualified as armed career criminal under ACCA were geographically concentrated.
o

In fiscal year 2010, 12 districts reported 43.7 percent of the cases involving a
conviction of an offense under section 924(c) (and only five of those districts
reported having at least 100 such cases).

xxxix

•

•

o

Cases involving convictions of multiple section 924(c) counts were more
geographically concentrated than cases involving a conviction of an offense under
section 924(c) as a whole. In fiscal year 2010, the ten districts that reported the
highest number of cases involving multiple convictions of section 924(c)
accounted for 62.7 percent of all such cases.

o

In fiscal year 2010, the ten districts with the highest number of cases involving
offenders who qualified as armed career criminals under ACCA reported 47.9
percent of all such cases.

In fiscal year 2010, offenders convicted of an offense under section 924(c) and offenders
who qualified as armed career criminals under ACCA proceeded to trial at a higher rate
than all offenders convicted of an offense carrying a mandatory minimum penalty (5.9%).
o

Of the 2,294 offenders convicted of an offense under section 924(c), 12.8 percent
(n=293) proceeded to trial.

o

Of the 147 offenders convicted of multiple counts of an offense under section
924(c) in fiscal year 2010, 34.7 percent (n=51) proceeded to trial. Of the 2,147
offenders convicted of a single count of an offense under section 924(c), 11.3
percent (n=242) proceeded to trial.

o

Of the 592 offenders who qualified as armed career criminals under ACCA, 17.4
percent (n=103) proceeded to trial.

In fiscal year 2010, 24.3 percent of offenders convicted of an offense under section
924(c) were relieved of the mandatory minimum penalty at sentencing pursuant to 18
U.S.C. § 3553(e) because they rendered substantial assistance to the government.
o

Black, White, and Hispanic offenders convicted of an offense under section
924(c) obtained relief at comparable rates (24.7%, 24.4%, and 24.4%,
respectively), followed by Other Race offenders (17.1%).

o

Female offenders constituted only a small percentage of offenders convicted of an
offense under section 924(c), but obtained relief from the mandatory minimum
penalty at a higher rate (45.4%) than male offenders convicted of such an offense
(23.6%).

o

Non-citizen offenders convicted of an offense under section 924(c) obtained relief
from the mandatory minimum penalty at a higher rate (27.3%) than United States
citizens convicted of such an offense (23.8%).

o

Offenders convicted of multiple counts of an offense under section 924(c) were
relieved of the mandatory minimum penalty in 36.7% of the cases.

xl

•

In fiscal year 2010, 17.4 percent of offenders who qualified as an armed career criminal
under ACCA were relieved of the mandatory minimum penalty at sentencing pursuant to
18 U.S.C. § 3553(e) because they rendered substantial assistance to the government.

•

In fiscal year 2010, the rate at which offenders received substantial assistance relief
varied by race, gender and citizenship

•

o

Other Race offenders who qualified as armed career criminals under ACCA
obtained relief at the highest rate of any racial group (22.2%), followed by White
(18.4%), Black (17.0%), and Hispanic (12.9%) offenders.

o

Male offenders who qualified as armed career criminals under ACCA obtained
relief from the mandatory minimum penalty at a higher rate (17.5%) than
qualifying female offenders (0.0%).

o

United States citizen offenders who qualified as armed career criminals under
ACCA obtained relief from the mandatory minimum penalty at a higher rate
(17.5%) than qualifying non-citizen offenders (12.5%).

Less than half (48.2%) of all offenders convicted of an offense under section 924(c) were
sentenced within the applicable guideline range.
o

•

More than one-quarter (28.2%) of offenders convicted of an offense under section
924(c) received a government sponsored below range sentence, and 18.8 percent
received a non-government sponsored below range sentence.

Over 60 percent (62.8%) of offenders who qualified as armed career criminals under
ACCA were sentenced within the applicable guideline range.
o

Nearly one-quarter (22.6%) of offenders who qualified as armed career criminals
under ACCA received a government sponsored below range sentence, and 13.0
percent received a non-government sponsored below range sentence.

•

In fiscal year 2010, 75.5 percent of offenders convicted of an offense under section
924(c) were subject to the mandatory minimum penalty at sentencing.

•

In fiscal year 2010, the rate at which offenders convicted of an offense under section
924(c) were subject to the mandatory minimum penalty at sentencing varied by race,
gender and citizenship.
o

Other Race offenders were subject to the mandatory minimum penalty at
sentencing most often, in 82.9 percent of their offenses carrying such a penalty,
followed by Hispanic (75.6%) and White (75.6%) offenders. Black offenders
were subject to the mandatory minimum penalty at sentencing the least often, in
75.3 percent of their cases.

xli

•

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (76.4% of their cases, compared to 54.6% of
cases involving female offenders).

o

United States citizens were subject to the mandatory minimum penalty at
sentencing more often than non-citizens offenders (76.1% of their cases,
compared to 72.7% of cases involving non-citizen offenders).

The average sentence for offenders convicted of an offense under section 924(c) who
remained subject to the mandatory minimum penalty (i.e., who did not receive relief for
rendering substantial assistance) was 182 months. The average sentence for offenders
convicted of an offense under section 924(c) but who were relieved of the mandatory
minimum penalty was 109 months. These sentences include the sentence imposed on the
underlying offenses and other counts of conviction, if any, in addition to the mandatory
minimum penalty under section 924(c).
o

The average sentence for offenders convicted of a single count of an offense
under section 924(c) was 151 months. The average sentence for offenders
convicted of a single count of an offense under section 924(c) who were relieved
of the mandatory minimum penalty was 100 months.

o

The average sentence for offenders convicted of multiple counts of an offense
under section 924(c) was 351 months. The average sentence for offenders
convicted of multiple counts of an offense under section 924(c) who were relieved
for the mandatory minimum penalties was 198 months.

•

In fiscal year 2010, 82.6 percent of offenders who qualified as armed career criminals
under ACCA were subject to the mandatory minimum penalty at sentencing.

•

In fiscal year 2010, the rate at which offenders who qualified as armed career criminals
under ACCA were subject to the mandatory minimum penalty at sentencing varied by
race, gender and citizenship.
o

Hispanic offenders were subject to the mandatory minimum penalty at sentencing
most often, in 87.1 percent of their offenses carrying such a penalty, followed by
Black (83.0%) and White (81.6%) offenders. Other Race offenders were subject
to the mandatory minimum penalty at sentencing the least often, in 77.8 percent
of their cases.

o

Female offenders were subject to the mandatory minimum penalty at sentencing
more often than male offenders (100.0% of their cases, compared to 82.5% of
cases involving male offenders).

o

Non-citizens were subject to the mandatory minimum penalty at sentencing more
often than United States citizen offenders (87.5% of their cases, compared to
82.5% of cases involving United States citizen offenders).

xlii

•

The average sentence for offenders who qualified as armed career criminals under ACCA
and who were subject to the mandatory minimum penalty (i.e., who did not receive relief
for rendering substantial assistance) was 210 months. The average sentence for offenders
who qualified as armed career criminals under ACCA but who were relieved of the
mandatory minimum penalty was 122 months.

•

At the end of fiscal year 2010, 10.5 percent of the offenders in the custody of the Bureau
of Prisons were convicted of an offense under section 924(c). The percentage of
prisoners convicted of an offense under section 924(c) has remained relatively steady
over time, constituting 10.3 percent of the federal prison population at the end of fiscal
year 1995.

•

At the end of fiscal year 2010, 2.9 percent of the offenders in the custody of the Bureau
of Prisons qualified as armed career criminals under ACCA. The percentage of prisoners
who so qualified has slowly increased over time, rising from 1.4 percent of the federal
prison population at the end of fiscal year 1995.
3.

Sex Offenses

Chapter 10 details the results of the Commission’s data analyses of the application of
mandatory minimum penalties for sex offenses. In sum, these analyses demonstrate the
following:
•

In fiscal year 2010, 2,317 (3.2%) offenders were convicted of a sex offense. Of the 2,317
offenders convicted of a sex offense, 640 (27.6%) were convicted of a sexual abuse
offense and 1,677 (72.4%) were convicted of a child pornography offense.

•

Of the 2,317 offenders convicted of a sex offense, 1,176 (50.8%) were convicted of an
offense carrying a mandatory minimum penalty.

•

Of the 640 offenders convicted of a sexual abuse offense, 336 (52.5%) were convicted of
an offense carrying a mandatory minimum penalty.
o

Among sexual abuse offenders convicted of an offense carrying a mandatory
minimum penalty, over three-quarters (76.4%) of the offenders were White,
followed by Black (11.9%), Hispanic (8.7%), and Other Race (3.0%) offenders.
By comparison, among all offenders convicted of a sexual abuse offense, 55.2
percent were White, followed by Other Race (22.5%), Black (12.5%), and
Hispanic (9.7%) offenders.

o

The overwhelming majority of offenders convicted of a sexual abuse offense
carrying a mandatory minimum penalty (97.9%) were male.

o

United States citizens accounted for 94.9 percent of offenders convicted of a
sexual abuse offense carrying a mandatory minimum penalty.

xliii

•

Of the 1,677 offenders convicted of a child pornography offense, 840 (50.1%) were
convicted of an offense carrying a mandatory minimum penalty.
o

Among child pornography offenders convicted of an offense carrying a
mandatory minimum penalty, 88.2 percent were White, followed by Hispanic
(6.4%), Black (3.2%), and Other Race (2.2%) offenders.

o

The overwhelming majority of offenders convicted of a child pornography
offense carrying a mandatory minimum penalty (99.4%) were male.

o

United States citizens accounted for 97.9 percent of offenders convicted of a child
pornography offense carrying a mandatory minimum penalty.

•

No district had more than 50 convictions for sexual abuse offenses. Convictions occurred
most often in the Districts of Southern Georgia (n=16, 0.7% of all cases sentenced in the
district), Northern New York (n=11, 2.5%), Eastern California (n=10, 1.0%), and
Northern Georgia (n=10, 1.5%). These four districts together accounted for 14.0 percent
of all federal sexual abuse cases.

•

No district had more than 50 convictions for child pornography offenses. Convictions
occurred most often in Eastern Virginia (n=39, 3.2% of all cases sentenced in the
district), Middle Florida (n=34, 2.0%), Southern Florida (n=30, 1.4%), Southern Indiana
(n=28, 8.6%), and Western Texas (n=27, 0.4%). These districts together accounted for
18.8 percent of all child pornography cases.

•

The vast majority of sexual abuse and child pornography offenders had no prior criminal
record at the time they were sentenced and only a very small percentage were in Criminal
History Categories IV through VI.

•

In fiscal year 2010, the trial rate for sexual abuse offenders was 15.2 percent – more than
twice the rate for sexual abuse offenders not convicted of an offense carrying a
mandatory minimum penalty (6.9%). The trial rate for child pornography offenders
convicted of an offense carrying a mandatory minimum penalty was 6.4 percent – four
times the rate for child pornography offenders not convicted of an offense carrying a
mandatory minimum penalty (1.6%).

•

In fiscal year 2010, 4.2 percent of offenders convicted of a sexual abuse or child
pornography offense carrying a mandatory minimum penalty were relieved of the
mandatory minimum penalty at sentencing pursuant to 18 U.S.C. § 3553(e) because they
rendered substantial assistance to the government.
o

The number of cases is too small to draw any meaningful conclusions about the
role of race, gender, or citizenship as it relates to substantial assistance relief in
sexual abuse cases.

xliv

•

Over 60 percent (63.7%) of offenders convicted of a sexual abuse offense carrying a
mandatory minimum penalty and 42.5 percent of offenders convicted of a child
pornography offense carrying a mandatory minimum penalty were sentenced within the
applicable guideline range.
o

Approximately 13 percent of offenders convicted of a sexual abuse or child
pornography offense carrying a mandatory minimum penalty received a
government sponsored below range sentence (13.1% and 13.4%, respectively).

o

Offenders convicted of a sexual abuse offense carrying a mandatory minimum
penalty received a non-government sponsored below range sentence in 17.3
percent of the cases, compared to 41.9 percent of offenders convicted of a child
pornography offense carrying a mandatory minimum penalty.

•

The average extent of substantial assistance departures in sexual abuse cases was 35.9
percent (70 months) from the bottom of the otherwise applicable guideline range; the
average extent of substantial assistance departures in child pornography cases was 31.9
percent (45 months) from the bottom of the otherwise applicable guideline range.

•

The average extent of non-government sponsored below range sentences in sexual abuse
cases that carried a mandatory minimum penalty was 19.2 percent (59 months) from the
bottom of the otherwise applicable guideline range; the average extent of nongovernment sponsored below range sentences in child pornography cases that carried a
mandatory minimum penalty was 36.0 percent (64 months) below the otherwise
applicable guideline range.

•

In fiscal year 2010, 95.8 percent of offenders convicted of a sexual abuse offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing.

•

In fiscal year 2010, the rate at which offenders convicted of a sexual abuse offense who
were subject to the mandatory minimum penalty at sentencing varied by race, gender and
citizenship.
o

White offenders were subject to the mandatory minimum penalty at sentencing
most often, in 97.3 percent of their offenses carrying such a penalty, followed by
Hispanic (96.6%) and Other Race (90.0%) offenders. Black offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 87.5
percent of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (96.4% of their cases, compared to 71.4% of
cases involving female offenders).

xlv

o

Non-citizens were subject to the mandatory minimum penalty at sentencing more
often than United States citizen offenders (100.0% of their cases, compared to
95.6% of cases involving United States citizen offenders).

•

The average sentence for offenders convicted of a sexual abuse offense who were subject
to the mandatory minimum penalty (i.e., who did not receive relief for rendering
substantial assistance) was 235 months. The average sentence for those offenders who
obtained relief from the mandatory minimum penalty was 139 months. The average
sentence for offenders convicted of a sexual abuse offense not carrying a mandatory
minimum penalty was 73 months.

•

In fiscal year 2010, 95.8 percent of offenders convicted of a child pornography offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing.

•

In fiscal year 2010, the rate at which offenders convicted of a child pornography offense
who were subject to the mandatory minimum penalty at sentencing varied by race, gender
and citizenship.
Black offenders were subject to the mandatory minimum penalty at sentencing
most often, in 100.0 percent of their offenses carrying such a penalty, followed by
Hispanic (96.3%) and White (95.7%) offenders. Other Race offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 94.4
percent of their cases.
Female offenders were subject to the mandatory minimum penalty at sentencing
more often than male offenders (100.0% of their cases, compared to 95.8% of
cases involving male offenders).
Non-citizens were subject to the mandatory minimum penalty at sentencing more
often than United States citizen offenders (100.0% of their cases, compared to
95.7% of cases involving United States citizen offenders).

•

The average sentence for offenders convicted of a child pornography offense who
remained subject to the mandatory minimum penalty (i.e., who did not receive relief for
rendering substantial assistance) was 132 months. The average sentence for those
offenders who obtained relief from the mandatory minimum penalty was 121 months.
The average sentence for offenders convicted of a child pornography offense not carrying
a mandatory minimum penalty was 54 months.

•

At the end of fiscal year 2010, 4.6 percent of the offenders in the custody of the Bureau
of Prisons were convicted of a sex offense. Of those offenders, 52.2 percent were
convicted of an offense carrying a mandatory minimum penalty. The percentage of
prisoners convicted of a sex offense has slowly increased over time, rising from less than
one percent in 1995 (of those prisoners, only 6.5 were convicted of an offense carrying a
mandatory minimum penalty).

xlvi

•

The Commission’s special coding project of a 20-percent random sample of child
pornography cases indicates that approximately half of offenders convicted of possession
(who did not face a mandatory minimum penalty) could have been prosecuted and
sentenced for distribution of child pornography, an offense carrying a mandatory
minimum penalty.

•

The preliminary analysis of data concerning child pornography offenses contained in this
report will be followed up by a more comprehensive analysis of child pornography
offenses and offenders in a future report issued by the Commission.
4.

Identity Theft Offenses

Chapter 11 details the results of the Commission’s data analyses of the application of
mandatory minimum penalties for identity theft offenses. In sum, these analyses demonstrate the
following:
•

In fiscal year 2010, 1,870 offenders (2.6%) were convicted of an identity theft offense.
Of those 1,870 offenders, 797 (42.6%) were convicted of an offense under section
1028A.

•

Over 40 percent of offenders convicted of an offense under section 1028A were Black
(40.2%), followed by White (32.8%), Hispanic (22.3%), and Other Race (4.7%)
offenders.

•

The majority of offenders convicted of an offense under section 1028A (71.8%) were
male.

•

United States citizens accounted for 74.4 percent of offenders convicted of an offense
under section 1028A.

•

A disproportionately large number of cases involving a conviction of an offense under
section 1028A came from only three judicial districts in fiscal year 2010.

•

Of the 797 offenders convicted of an offense under section 1028A in fiscal year 2010, 6.8
percent (n=54) proceeded to trial. By contrast, of the 1,072 identity theft offenders not
convicted of an offense under section 1028A, 2.1 percent (n=22) proceeded to trial.

•

Identity theft offenders who committed more severe identity theft offenses or who had
more significant criminal histories were generally more likely to be convicted of an
offense under section 1028A.
o

Identity theft cases involving a conviction of an offense under section 1028A had
a 28.2 percent higher median loss amount and were more likely to involve ten or
more victims than identity theft cases that did not involve such a conviction.

xlvii

o

•

A higher percentage of identity theft offenders convicted of an offense under
section 1028A were in Criminal History Category VI, and a lower percentage
were in Criminal History Category I, than identity theft offenders not convicted of
an offense under section 1028A.

In fiscal year 2010, 15.4 percent of offenders convicted of an offense under section
1028A were relieved of the mandatory penalty at sentencing because they rendered
substantial assistance to the government.
o

Other Race offenders convicted of an offense under section 1028A obtained relief
from the mandatory penalty at the highest rate (18.9%), followed by Black
(17.2%), Hispanic (14.7%), and White (13.1%) offenders.

o

Female offenders convicted of an offense under section 1028A obtained relief
from the mandatory penalty at a higher rate (20.0%) than male offenders
convicted of such an offense (13.6%).

o

United States citizen offenders convicted of an offense under section 1028A
obtained relief from the mandatory penalty at a higher rate (17.3%) than noncitizens convicted of such an offense (10.3%).

•

Of the 797 cases in fiscal year 2010 that involved a conviction of an offense under
section 1028A, 10.2 percent (n=82) involved convictions of multiple counts of an offense
under section 1028A. In 69 of those 82 cases, the court exercised its discretion to impose
the mandatory penalties for violating section 1028A concurrently.

•

In fiscal year 2010, 84.6 percent of offenders convicted of an offense under section
1028A were subject to the mandatory minimum penalty at sentencing.

•

In fiscal year 2010, the rate at which offenders convicted of an offense under section
1028A were subject to the mandatory minimum penalty at sentencing varied by race,
gender and citizenship.
o

White offenders were subject to the mandatory minimum penalty at sentencing
most often, in 86.9 percent of their offenses carrying such a penalty, followed by
Hispanic (85.3%) and Black (82.8%) offenders. Other Race offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 81.1
percent of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (86.4% of their cases, compared to 80.0% of
cases involving female offenders).

o

Non-citizens were subject to the mandatory minimum penalty at sentencing more
often than United States citizens (89.7% of their cases, compared to 82.7% of
cases involving non-citizen offenders).

xlviii

•

The average sentence for offenders convicted of an offense under section 1028A who
were subject to the mandatory penalty (i.e., who did not receive relief for rendering
substantial assistance) was 50 months. The average sentence for offenders convicted of
an offense under section 1028A but who were relieved of the mandatory penalty was 32
months. By contrast, identity theft offenders not convicted of an offense under section
1028A received an average sentence of 22 months.

•

Among offenders convicted of an offense under section 1028A, Other Race and Black
offenders received higher average sentences (53 and 54 months, respectively) than White
and Hispanic offenders (45 and 40 months, respectively).

•

The higher average sentences for Other Race and Black offenders convicted of an offense
under section 1028A may be attributable to the fact that those offenders tended to be
convicted of more severe offenses than White and Hispanic offenders, as measured by the
amount of loss and number of victims involved in the offense.

•

At the end of fiscal year 2010, 0.9 percent of the offenders in the custody of the Bureau
of Prisons were convicted of an offense under section 1028A. The percentage of
prisoners convicted of an offense under section 1028A has slowly increased over time,
rising from 0.2% of the federal prison population at the end of fiscal year 2006.

xlix

Chapter 1

OVERVIEW
A.

INTRODUCTION

The United States Sentencing Commission [hereinafter the Commission] submits to
Congress this report on mandatory minimum sentencing provisions in federal law pursuant to the
statutory directive contained in section 4713 of the Matthew Shepard and James Byrd, Jr. Hate
Crimes Prevention Act of 20091 [hereinafter the statutory directive].
The statutory directive requires that this report include:
(1)

a compilation of all mandatory minimum sentencing provisions
under Federal law;

(2)

an assessment of the effect of mandatory minimum sentencing
provisions under Federal law on the goal of eliminating
unwarranted sentencing disparity and other goals of sentencing;

(3)

an assessment of the impact of mandatory minimum sentencing
provisions on the Federal prison population;

(4)

an assessment of the compatibility of mandatory minimum
sentencing provisions under Federal law and the sentencing
guidelines system established under the Sentencing Reform Act of
1984 (Public Law 98–473; 98 Stat. 1987) and the sentencing
guidelines system in place after Booker v. United States, 543 U.S.
220 (2005);

(5)

a description of the interaction between mandatory minimum
sentencing provisions under Federal law and plea agreements;

(6)

a detailed empirical research study of the effect of mandatory
minimum penalties under Federal law;

(7)

a discussion of mechanisms other than mandatory minimum
sentencing laws by which Congress can take action with respect to
sentencing policy; and

1

Division E of the National Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111–84, 123 Stat. 2190,
2843 (enacted October 28, 2009). The Commission also submits this report pursuant to its general authority under
28 U.S.C. §§ 994–995, and its specific authority under 28 U.S.C. § 995(a)(20) which provides that the Commission
shall have authority to “make recommendations to Congress concerning modification or enactment of statutes
relating to sentencing, penal, and correctional matters that the Commission finds to be necessary and advisable to
carry out an effective, humane, and rational sentencing policy.”

1

(8)

any other information the Commission determines would
contribute to a thorough assessment of mandatory minimum
sentencing provisions under Federal law.

As discussed in Chapter 2, federal statutory mandatory minimum penalties have existed since the
early days of the nation. Examination of their use has been ongoing since then as well, including
by Congress2 and many others, as discussed in Chapter 5. In 1991, the Commission submitted a
report to Congress about mandatory minimum penalties, concluding that “the most efficient and
effective way for Congress to exercise its powers to direct sentencing policy is through the
established process of the sentencing guidelines, permitting the sophistication of the guidelines
structure to work, rather than through mandatory minimums.”3 This report is intended to
contribute to the more recent efforts to examine federal statutory mandatory minimum penalties,
particularly in light of the Supreme Court’s decision in Booker v. United States,4 which rendered
the federal sentencing guidelines advisory.

2

See 156 CONG. REC. S1680–1683 (daily ed. Mar. 17, 2010) and 156 CONG. REC. H6196–6204 (daily. ed. July 28,
2010) (for debate associated with passage of Fair Sentencing Act of 2010, Pub. L. No. 111–220, 124 Stat. 2372).
See also 150 CONG. REC. H4808–4811 (daily ed. June 23, 2004) and 150 CONG. REC. S7527 (daily ed. June 25,
2004) (for debate associated with passage of Identity Theft Penalty Enhancement Act, Pub. L. No. 108–275, 118
Stat. 831). See also 149 CONG. REC. S2573–2590 (daily ed. Feb. 24, 2003), 149 CONG. REC. H2440–2443 (daily ed.
Mar. 27, 2003), 149 CONG. REC. H3059, 3066–3076 (daily ed. Apr. 10, 2003), 149 CONG. REC. H2950–2968 (daily
ed. Apr. 9, 2003), 149 CONG. REC. S5113–5135, S5137–5157 (daily ed. Apr. 10, 2003) (for debate associated with
passage of Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L.
No. 108–21, 117 Stat. 650). See also general debate on mandatory minimums and limitation on applicability of
statutory minimums in certain cases (associated with passage of Violent Crime Control and Law Enforcement Act of
1994, Pub. L. No. 103–322, 108 Stat. 1796).
3

See U.S. SENT’G COMM’N, SPECIAL REPORT TO CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL
CRIMINAL JUSTICE SYSTEM (AS DIRECTED BY SECTION 1703 OF PUBLIC LAW 101–647) (Aug. 1991) [hereinafter 1991
COMMISSION REPORT] at iv. At the time, the sentencing guidelines were binding on the courts. See also Hearing on
Federal Mandatory Minimum Sentencing Before the Subcomm. on Crime and Criminal Justice of the H. Comm. on
the Judiciary, 103rd Cong. (July 28, 1993) (statement of Hon. William W. Wilkins, Jr., Chairman, United States
Sentencing Commission), reprinted in 6 Fed. Sent’g Rep. 67 (1993); Mandatory Minimum Sentencing Laws―The
Issues: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary,
110th Cong. 6 (2007) (statement of Hon. Ricardo H. Hinojosa, Chairman, United States Sentencing Commission);
U.S. SENT’G COMM’N, REPORT TO CONGRESS REGARDING FED. MANDATORY MINIMUM SENT'G PENALTIES (on
record in Mandatory Minimums and Unintended Consequences, Hearing Before the Subcomm. on Crime, Terrorism,
and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. 124 (July 14, 2009)); Mandatory Minimum
Penalties Hearing Before the U.S. Sentencing Commission (May 27, 2010).
4

543 U.S. 220 (2005).

2

B.

OVERVIEW OF REPORT
1.

Methodology

In preparing this report, the Commission reviewed legislation, analyzed sentencing data,5
and studied scholarly literature.6 The Commission sought the views of stakeholders in the
criminal justice system in a variety of ways, including conducting seven regional public hearings
on sentencing generally,7 one public hearing devoted solely to the role of statutory mandatory
minimum penalties in federal sentencing,8 a survey of federal judges,9 and interviews with
practitioners in selected districts.10 The Commission consulted with its advisory groups11 and
5

The Commission maintains a comprehensive, computerized data collection system and acts as the clearinghouse
of federal sentencing information pursuant to 28 U.S.C. §§ 995(a)(14), (15). The Commission relies on this
database for its ongoing monitoring and evaluation of the guidelines, many of its reports and research projects, and
for responding to hundreds of data requests received from Congress and other criminal justice entities each year.
Pursuant to 28 U.S.C. § 994(w), within 30 days of entry of judgment in every felony and class A misdemeanor case,
the Commission receives: (1) the judgment and commitment order; (2) the statement of reasons imposed; (3) the
plea agreement, if any; (4) the indictment or other charging information; and (5) the presentence report (unless
waived by the court). For each such case, the Commission routinely collects hundreds of pieces of information,
including defendant demographics, statute(s) of conviction, application of any statutory mandatory minimum
penalty, application of any relief from an applicable statutory mandatory minimum penalty, sentencing guideline
applications, and sentences imposed.

6

See Appendix I for a bibliography of relevant literature compiled for this report.

7

The Commission held seven regional public hearings to coincide with the 25th anniversary of the enactment of the
Sentencing Reform Act of 1984 to solicit the views of judges, prosecutors, defense attorneys, probation officers,
academics, and others on a variety of federal sentencing and criminal justice topics, including mandatory minimum
penalties. These hearings were held in Atlanta, GA (Feb. 10–11, 2009), Palo Alto, CA (May 27–28, 2009), New
York, NY (July 9–10, 2009), Chicago, IL (Sept. 9–10, 2009), Denver, CO (Oct. 20–21, 2009), Austin, TX (Nov. 19–
20, 2009), and Phoenix, AZ (Jan. 20–21, 2010). Witness statements and transcripts for the public hearings are
available on the Commission’s webpage at www.ussc.gov. Summaries of the testimony relating to mandatory
minimum penalties can be found in Appendix J of this Report.

8

On May 27, 2010, in Washington, DC, the Commission held a public hearing on the topic of mandatory minimum
sentencing provisions in federal law in response to Congress’s directive to report on the topic. Witness statements
and transcripts for the public hearing are available on the Commission’s webpage at www.ussc.gov. Summaries of
the testimony can be found in Appendix G of this Report.

9

In early 2010, the Commission conducted a survey of federal district judges to solicit their views on a variety of
sentencing topics, including mandatory minimum penalties. See U.S. SENT’G COMM’N, RESULTS OF SURVEY OF
UNITED STATES DISTRICT JUDGES: JANUARY 2010 THROUGH MARCH 2010 (June 2010) [hereinafter 2010 JUDGES’
SURVEY] , which is available on the Commission’s webpage at www.ussc.gov.
10

The Commission interviewed one or more representatives of the United States Attorney and the Federal Public
Defender, and a Criminal Justice Act panel attorney in 13 districts across the nation as part of this study of
mandatory minimum penalties and federal sentencing. The Commission conducted similar interviews in 1991 when
preparing the 1991 COMMISSION REPORT. As was the case in 1991, this report will not identify the districts visited,
nor will individual respondents be identified or identifiable in the Commission's public documents. The interview
topics inquired about the use of mandatory minimum penalties in each district and included questions about
charging decisions, plea practices, and the use of two mechanisms discussed in Chapter 2 (i.e., substantial assistance
and the safety valve) that provide relief from application of mandatory minimum penalties. The input received from
these interviews is discussed in Chapter 6, and a copy of the interview questions is provided in Appendix F of this
Report.

3

representatives from all three branches of the federal government, and heard from judges,
prosecutors, defense attorneys, probation officers, social scientists, scholars, and others who
apply or study mandatory minimum sentencing provisions.
2. Definitions of Key Terms
For purposes of this report, “mandatory minimum penalty,” “mandatory minimum
sentencing provision,” “statute carrying a mandatory minimum penalty,” “convicted of an
offense carrying a mandatory minimum penalty,” and related terms refer to a federal criminal
statute requiring, upon conviction of a federal criminal offense and the satisfaction of criteria set
forth in that statute, the imposition of a specified minimum term of imprisonment. A provision
that requires a mandatory minimum fine, mandatory minimum term of probation, mandatory
minimum term of supervised release, or any other mandatory component of a sentence other than
imprisonment is not considered a mandatory minimum penalty for purposes of this report.
The statutory criteria that trigger mandatory minimum penalties typically are one of three
types. First, many mandatory minimum penalties are triggered by offense characteristics or
elements of the offense of conviction. For example, some of the most commonly applied federal
mandatory minimum penalties are for drug trafficking offenses. Under the relevant statutes, the
mandatory minimum penalty applies if the offense involved a quantity of a particular type of
drug above a specified threshold amount, a sale to a person under 21 years of age, a sale
occurring within 1,000 feet of a school, or the employment of a person under 18 years of age.12
Second, some mandatory minimum penalties specified in one statute are triggered by
reference to another underlying offense. Typically in these cases, a mandatory minimum penalty
does not apply to the underlying offense, but an additional, consecutive, mandatory minimum
penalty applies if criteria specified in a separate statute are met. The most commonly applied
mandatory minimum penalty of this type is 18 U.S.C. § 924(c), which requires a mandatory
consecutive term of imprisonment for the possession or use of a firearm in connection with
certain underlying offenses. Another example is 18 U.S.C. § 1028A, which requires a
mandatory consecutive term of imprisonment for identity theft committed in connection with
certain underlying offenses.
Third, some mandatory minimum penalties are triggered by the offender’s criminal
history. The most frequently applied mandatory minimum penalty of this type is 18 U.S.C.
§ 924(e), commonly known as the Armed Career Criminal Act. Section 924(e) provides a
mandatory minimum of 15 years of imprisonment if a person commits a firearms offense and has
previously been convicted of three or more violent felonies or serious drug offenses.

11

The Commission has three standing advisory groups: the Practitioners Advisory Group, the Probation Officers
Advisory Group, and the Victims Advisory Group. Information on each of these advisory groups can be found on
the Commission’s webpage at www.ussc.gov.
12

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

4

For purposes of this report, the Commission considered an offender to have been
“convicted of” an offense carrying a mandatory minimum penalty if the court so indicated on a
statement of reasons form or other sentencing documentation received by the Commission and
conclusively established that one or more of the statutes of conviction carried such a penalty. 13
Not all offenders convicted of an offense carrying a mandatory minimum penalty are
sentenced to at least the mandatory minimum term of imprisonment specified in the statute of
conviction. As will be discussed throughout the report, many offenders convicted of an offense
carrying a mandatory minimum penalty receive a lower sentence due to operation of one of two
relief mechanisms commonly known as “substantial assistance” and the “safety valve.” First, as
discussed in Chapter 2, the court “has authority to impose a sentence below a level established
by statute as a minimum sentence” if the government files a motion to reflect a defendant’s
“substantial assistance in the investigation or prosecution of another person who has committed
an offense.”14 Second, in the case of an offense under 21 U.S.C. §§ 841, 844, 846, 960, or 963,
if the defendant meets five “safety valve” criteria specified in 18 U.S.C. § 3553(f), the court
“shall impose a sentence . . . without regard to any statutory minimum sentence.”15 If either of
these two mechanisms apply to an offender convicted of an offense carrying a mandatory
minimum penalty, this report refers to that offender as having been “relieved from application
of” a mandatory minimum penalty. If neither of these two mechanisms apply to an offender
convicted of an offense carrying a mandatory minimum penalty, this report refers to that
offender as having been “subject to” a mandatory minimum penalty at the time of sentencing.
3. Organization
To meet the objectives of the statutory directive, this report is organized in the following
manner:
Chapter 2 explores the historical development of mandatory minimum penalties. It also
describes the development of the safety valve and substantial assistance provisions.
Chapter 3 discusses the requirements in the Sentencing Reform Act of 198416 that govern
promulgation of the federal sentencing guidelines, the operation of the guidelines, and the
process by which the Commission amends the guidelines. It also discusses the manner in which
the Commission has responded to and incorporated mandatory minimum penalties into the
guidelines. Finally, it examines means by which the guidelines account for conduct that is
similar to conduct subject to mandatory minimum penalties.
13

Sentencing courts are required to send the Commission five sentencing documents, see supra note 5. The
statement of reasons form sets forth the sentencing court’s reasons for the sentence imposed in a particular case. See
28 U.S.C. § 994(w); 18 U.S.C. § 3553(c).
14

18 U.S.C. § 3553(e); USSG §5K1.1 (Substantial Assistance to Authorities).

15

18 U.S.C. § 3553(f); USSG §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain
Cases); subsection (b)(11) of §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or Conspiracy).

16

Pub. L. No. 98–473, 98 Stat. 1837 (1984) [hereinafter the Sentencing Reform Act].

5

Chapter 4 focuses on recent changes that affect the examination of mandatory minimum
penalties and the impact of the use of mandatory minimum penalties on the federal prison
population. It also discusses the impact on the federal prison population resulting from other
factors, such as new federal crimes, changes in the size and composition of the federal criminal
docket, federal incarceration rates, and average sentence length.
Chapter 5 discusses the policy implications of mandatory minimum penalties. In
particular, it describes the reasons often cited in support of and in opposition to such penalty
provisions.
Chapter 6 discusses the results of interviews with prosecutors and defense attorneys in
thirteen selected districts about how mandatory minimum penalties are used in the selected
districts and the impact of mandatory minimum penalties on charging, guilty pleas, and
sentencing practices in the districts.
Chapter 7 reviews both current and cumulative sentencing data on mandatory minimum
penalties. In particular, it provides general comparisons between offenders convicted of offenses
carrying mandatory minimum penalties and offenders in the overall federal population.
Chapter 8 reviews current sentencing data about offenders convicted of drug offenses
carrying mandatory minimum penalties.
Chapter 9 reviews current sentencing data about offenders convicted of firearms offenses
carrying mandatory minimum penalties.
Chapter 10 reviews current sentencing data about offenders convicted of sex offenses
carrying mandatory minimum penalties.
Chapter 11 reviews current sentencing data about offenders convicted of an aggravated
identity theft offense that carries a mandatory minimum penalty.
Chapter 12 sets forth the Commission’s conclusions and policy recommendations in light
of the data and information contained in the preceding chapters.

6

Chapter 2

HISTORY OF MANDATORY MINIMUM PENALTIES AND
STATUTORY RELIEF MECHANISMS
A.

INTRODUCTION

This chapter provides a detailed historical account of the development and evolution of
federal mandatory minimum penalties. It then describes the development of the two statutory
mechanisms for obtaining relief from mandatory minimum penalties.
B.

MANDATORY MINIMUM PENALTIES IN THE EARLY REPUBLIC

Congress has used mandatory minimum penalties since it enacted the first federal penal
laws in the late 18th century. Mandatory minimum penalties have always been prescribed for a
core set of serious offenses, such as murder and treason, and also have been enacted to address
immediate problems and exigencies.
The Constitution authorizes Congress to establish criminal offenses and to set the
punishments for those offenses,17 but there were no federal crimes when the First Congress
convened in New York in March 1789.18
Congress created the first comprehensive series of federal offenses with the passage of
the 1790 Crimes Act, which specified 23 federal crimes.19 Seven of the offenses in the 1790
Crimes Act carried a mandatory death penalty: treason, murder, three offenses relating to piracy,
forgery of a public security of the United States, and the rescue of a person convicted of a capital
crime.20 One of the piracy offenses specified four different forms of criminal conduct, arguably
increasing to 10 the number of offenses carrying a mandatory minimum penalty.21 Treason,
                                                            
17

See U.S. Const. art. I, §8 (enumerating powers to “provide for the Punishment of counterfeiting the Securities and
current Coin of the United States” and to “define and punish Piracies and Felonies committed on the high Seas, and
Offences against the Law of Nations”); U.S. Const. art. III, § 3 (providing that “Congress shall have Power to
declare the Punishment of Treason”). In addition to powers specifically relating to criminal offenses, Congress
“routinely exercises its authority to enact criminal laws in furtherance of, for example, its enumerated powers to
regulate interstate and foreign commerce, to enforce civil rights, to spend funds for the general welfare, to establish
federal courts, to establish post offices, to regulate bankruptcy, to regulate naturalization, and so forth.” United
States v. Comstock, 130 S. Ct. 1949, 1957 (2010).
18

See United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) (“The legislative authority of the Union must first
make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.”).
19

Act of Apr. 30, 1790, Chap. IX (the “1790 Crimes Act”), 1 Stat. 112.

20

See 1790 Crimes Act, §§ 1 (Treason), 3 (Murder), 8 (Piracy), 9 (Citizens as pirates), 10 (Accessory to piracy
before the fact), 14 (Forging public security of the United States), and 23 (Rescue of a person convicted of a capital
crime), 1 Stat. 112-115, 117.
21

See 1790 Crimes Act, § 8, 1 Stat. 112, 113-114. The conduct at section 8 was later separated into individual
statutes with each carrying a mandatory penalty, as discussed later. Several of those individual statutes still exist in
title 18, United States Code, and carry mandatory penalties. Compare § 8 with 18 U.S.C. §§ 1651 (Piracy under the
law of nations) and 1655 (Assault on commander as piracy), which carry mandatory life imprisonment. One of the

7 

murder, and piracy remain punishable by a mandatory penalty today.22 Thirteen of the crimes in
the 1790 Crimes Act were punishable by a term of imprisonment with a statutory maximum of
up to one year (three offenses23), three years (seven offenses24), or seven years (three offenses25).
The remaining three crimes were punishable by fines and corporal punishment26 or left to the
court’s discretion.27
The 1790 Crimes Act was consistent with a late 18th century movement among the states
to reduce the types of crimes punishable by death. The colonies, reflecting a more pronounced
trend in England, had increased the number of capital crimes throughout the 17th and 18th
centuries, making death the “standard penalty for all serious crimes.”28 However, spurred by
Enlightenment ideals of utilitarianism and proportionality in punishment, the states reduced the
number of capital crimes in the decades following the American Revolution.29 The 1790 Crimes
Act reflected this trend, imposing death for only seven of the enumerated offenses, and
establishing only maximum terms of imprisonment for others. Some of these other offenses,
such as manslaughter and larceny, were crimes commonly punished by death in the colonial
period.30 Indeed, the debates over the 1790 Crimes Act in the House of Representatives show
                                                            
statutes no longer carries a mandatory minimum penalty. Compare § 8 with 18 U.S.C. § 1656 (Conversion or
surrender of vessel) (10-year statutory maximum term of imprisonment).
22

See 18 U.S.C. §§ 2381 (Treason) (punishable by death or by imprisonment of not less than five years), 1111
(Murder) (first degree murder punishable by death or by imprisonment for life), 1651 (Piracy under the law of
nations) (requiring life imprisonment), and 1652 (Citizens as pirates) (requiring life imprisonment). Treason carried
the mandatory death penalty until 1862, when Congress amended the penalty to require death or, in the court’s
discretion, at least five years of imprisonment. See infra note 76 and accompanying text.
23

See 1790 Crimes Act, §§ 5 (Rescuing the body of an executed individual ordered for medical dissection by the
court), 22 (Obstruction of process), and 23 (Rescuing a person before conviction of a capital crime), 1 Stat. 112,
113, 117.
24

See 1790 Crimes Act, §§ 6 (Misprision of a felony), 7 (Manslaughter), 11 (Concealing a pirate or property taken
by a pirate), 12 (Manslaughter and confederacy to become pirates), 18 (Perjury), 26 (Instituting legal action against
a foreign ambassador), 28 (Violating safe conduct or assaulting a foreign ambassador), 1 Stat. 112,113-16, 118. The
punishment for perjury also included one hour standing in a pillory.
25

See 1790 Crimes Act, §§ 2 (Misprision of treason), 13 (Maiming), 15 (Falsifying court records), 1 Stat. 112, 11516.
26

See 1790 Crimes Act, §§ 16 (Larceny), 17 (Receiving stolen goods), 1 Stat. 112, 116. Both larceny and receiving
stolen goods were punishable by a fine of four times the value of the goods taken and not more than 39 stripes.

27

See 1790 Crimes Act, § 21 (Bribery), 1 Stat. 112, 117.

28

STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 6-9, 23 (2002); see also Woodson v. North
Carolina, 428 U.S. 280, 289 (1976) (explaining the history of capital punishment in the colonial and postRevolutionary period). Although many crimes carried the death penalty in the colonial period, “the colonies used
the death penalty rather sparingly.” LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 42
(1993). Pardons, lack of enforcement, the fiction of “benefit of clergy,” and jury nullification contributed to the lack
of executions in the colonies. See id. at 41-43.

29

BANNER, supra note 28, at 88-100.

30

Id. at 5.

8 

the House’s concern with utility and proportionality in assigning punishments. The House
debated at length whether certain crimes should mandate medical dissection in addition to death,
and whether merely passing (as opposed to producing) counterfeit public securities should
mandate death.31 In both instances, opponents argued that the more severe punishments were
disproportional to the offense and thus unnecessary; supporters countered that the punishments
served needful purposes and fit the severity of the crime.32 Although Congress ultimately
elected to impose the more severe penalties,33 the debates and Congress’s decision to impose
death for seven offenses and discretionary terms of imprisonment for the others was a departure
from the prevalent use of mandatory death penalties during the colonial period.
Congress enacted the first mandatory minimum terms of imprisonment at the close of the
18th century as part of its response to strained relations between the United States and France.
Following the XYZ Affair34 and in preparation for a possible war with France, Congress passed
the Sedition Act of 1798, which among other provisions created a new offense of opposing or
impeding a federal officer by means of insurrection, riot, or unlawful assembly.35 The offense
carried a mandatory minimum penalty of at least six months of imprisonment.36 Congress again
used a mandatory minimum penalty in 1799 with its passage of the Logan Act.37 The Logan Act
provided that any citizen who, without the consent of the United States, corresponded with a
foreign power about “disputes or controversies with the United States” with the intent to
influence the foreign government or “to defeat the measures of the United States” was to be
imprisoned for at least six months.38 The Sedition Act contained a sunset provision and
automatically expired on March 3, 1801, on the last day of President John Adams’ term in
                                                            
31

13 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA, DEBATES IN
THE HOUSE OF REPRESENTATIVES 968-74 (Helen E. Veit et al. eds, 1994); see also Banner, supra note 28, at 76-77
(describing dissection as a method of “intensifying” a death sentence, and noting that “[b]y adding dissection to a
death sentence the state could simultaneously furnish bodies to physicians and deter crime”).
32

Id.

33

See 1790 Crimes Act §§ 3 & 14, 1 Stat. 112, 113, 115.

34

The XYZ Affair refers to an incident occurring in 1798 during which three French agents (identified as X,Y, and
Z) demanded that American diplomatic emissaries pay a bribe and other concessions in return for the continuance of
peace talks between the two nations. See U.S. Department of State, Office of the Historian, The XYZ Affair and the
Quasi-War with France, 1798-1800, available at http://history.state.gov/milestones/1784-1800/XYZ.
35

Act of July 14, 1798, ch. LXXIV, § 1, 1 Stat. 596; see Dwight F. Henderson, Treason, Sedition and Fries’
Rebellion, 14 AM. J. LEGAL HIST. 308, 308-09 (1970); David Jenkins, The Sedition Act of 1798 and the
Incorporation of Seditious Libel into First Amendment Jurisprudence, 45 AM. J. LEGAL HIST. 154, 155-56 (2001).
36

Act of July 14, 1798, ch. LXXIV, § 1, 1 Stat. 596.

37

See Act of Jan. 30, 1799, ch. I, 1 Stat. 613.

38

Id. Congress passed the Logan Act following an unauthorized attempt by Dr. George Logan, a private citizen, to
conduct diplomacy with French authorities. See Kevin M. Kearney, Comment, Private Citizens in Foreign Affairs:
A Constitutional Analysis, 36 EMORY L.J. 285, 292-94 (1987).

9 

office.39 The offense created in the Logan Act remains in force, but no longer carries a
mandatory minimum penalty.40
Congress also used mandatory minimum penalties in its efforts to end the importation of
slaves. The Constitution prohibited Congress from curtailing or abolishing the importation of
slaves before 1808.41 In advance of the 1808 date, and with President Thomas Jefferson’s
urging, Congress passed an Act prohibiting the importation of slaves in February 1807.42
Among other provisions, the 1807 Act prohibited citizens from bringing slaves into the United
States or serving on a vessel that transported slaves.43 These offenses carried mandatory
minimum penalties of at least five years and two years of imprisonment, respectively.44
However, the mandatory minimum penalties were much less severe than the mandatory death
penalty many in the House of Representatives wanted to attach to these offenses, on grounds that
importing human beings was a crime of morality and akin to murder.45 Other offenses created
by the 1807 Act, such as outfitting slave vessels and purchasing or selling illegally imported
slaves, carried only fines.46
In 1818, Congress enacted additional mandatory minimum penalties for slave-related
offenses in response to a number of problems caused by illegal slave trafficking. First, illegal
slave smuggling and piracy in territories near New Orleans necessitated the use of military force
against the smugglers.47 Second, slave trafficking interfered with the United States’ policy of
neutrality in the ongoing wars between Spain and its colonies in the Americas, as these
smugglers operated under revolutionary flags but used primarily crews of United States citizens
and vessels outfitted in United States ports.48 In response to these problems, Congress enacted a
law that proscribed outfitting vessels for use in the slave trade, citizens from transporting slaves,
and importing slaves to the United States – all subject to mandatory minimum terms of

                                                            
39

Act of July 14, 1798, ch. LXXIV, § 4, 1 Stat. 596, 597.

40

See 18 U.S.C. § 953.

41

U.S. Const. art. I, §9.

42

DWIGHT F. HENDERSON, CONGRESS, COURTS, AND CRIMINALS: THE DEVELOPMENT OF FEDERAL CRIMINAL LAW,
1801-1829, at 166-67 (1985).
43

See Act of Mar. 2, 1807, ch. XXII, §§ 5 (Citizens bringing slaves to the United States) and 7 (Individuals serving
on vessels holding slaves), 2 Stat. 426, 427-428.
44

Id.

45

HENDERSON, supra note 42, at 168-69.

46

See Act of Mar. 2, 1807, ch. XXII, §§ 2 (Outfitting vessels for the slave trade) and 6 (Purchasing or selling
illegally imported slaves), 2 Stat. 426, 426-28.
47

HENDERSON, supra note 42, at 175-80.

48

Id. at 126-43.

10 

imprisonment of three years.49 These penalties did not stop the trade in slaves, however,50
leading Congress in 1820 to declare that persons who served on the crew of a vessel used for
trading slaves or who forcibly confined individuals for the slave trade were pirates and subject to
mandatory death.51
In 1825, Congress passed another crimes act52 that created new offenses and amended
some of the offenses and penalties established 35 years earlier in the 1790 Crimes Act. The 1825
Crimes Act is notable for its lack of mandatory minimum penalties. Then-Representative Daniel
Webster, Chairman of the House Judiciary Committee responsible for drafting the bill, explained
that “the present bill would be found, upon the whole, to be a mitigation of the laws as they
previously stood.”53 United States Attorney General Benjamin Franklin Butler argued before the
Supreme Court that Congress passed the 1825 Crimes Act, in part, because “[t]he penalties
imposed by the [1790 Crimes Act] were found to be too heavy.”54 Of the 21 crimes enumerated
in the 1825 Crimes Act, only the debasement of United States gold and silver coins by a United
States treasury employee carried a mandatory minimum penalty, requiring a term of
imprisonment of at least one year.55 Although the 1825 Crimes Act punished three offenses with
mandatory death (burning a dwelling house on a military post, committing certain felonies on the
high seas, and setting fire to a vessel of the United States),56 it also repealed the 1790 Crime
Act’s mandatory death penalty for counterfeiting certificates and public securities of the United
States, which the 1825 Crimes Act replaced with a sentence of up to 10 years of imprisonment.57
                                                            
49

See Act of Apr. 20, 1818, ch. XCI, §§ 3 (Outfitting vessels for the slave trade), 4 (Citizens transporting slaves),
and 6 (Importing slaves to the United States), 3 Stat. 450, 451-52.

50

Justice Joseph Story, charging a federal jury in Maryland in his role as a Circuit Justice, explained in 1819 that
one would expect the severe penalties Congress imposed for engaging in slave smuggling would “extinguish[]” the
slave trade because “virtuous men would, by their abhorrence, stay its polluted march, and wicked men would be
overawed by its potent punishment.” He lamented, though, that “unfortunately the case is far otherwise. We have
but too many melancholy proofs from unquestionable sources, that it is still carried on with all the implacable
ferocity and insatiable rapacity of former times.” 1 LIFE AND LETTERS OF JOSEPH STORY 339-40 (William W. Story
ed., 1851).
51

See Act of May 15, 1820, ch. CXIII, §§ 4 (Crew of foreign vessel seizing persons for the slave trade) and 5
(Persons forcibly confining individuals destined for slave trade), 3 Stat. 600, 600-01.
52

See Act of Mar. 3, 1825, ch. LXV (the “1825 Crimes Act”), 4 Stat. 115.

53

1 REG. DEB. 156 (1825).

54

United States v. Coombs, 37 U.S. (12 Pet.) 72, 73 (1838).

55

See 1825 Crimes Act, § 24 (Debasement of U.S. gold or silver coins), 4 Stat. 115, 122.

56

See 1825 Crimes Act, §§ 1 (Burning of a dwelling house), 4 (Murder and rape committed on the high seas), and
11 (Setting fire to a vessel of the United States), 4 Stat. 115-18.
57

Compare 1825 Crimes Act, §§ 17, 4 Stat. 115, 119-20 with 1790 Crimes Act, § 14, 1 Stat. 115. The 1825 Crimes
Act also amended the punishment for receiving stolen goods from a fine of four times the value of the goods
involved and 39 stripes to a term of imprisonment not exceeding three years. Compare 1825 Crimes Act, § 8, 4 Stat.
115, 116 with 1790 Crimes Act, § 17, 1 Stat. 112, 116.

11 

The remaining 17 crimes were punishable by terms of imprisonment of up to six months,58 one
year,59 three years,60 five years,61 and 10 years.62
Congress relied heavily on mandatory minimum penalties when establishing crimes for
the District of Columbia. The 1831 District of Columbia Crimes Act included 18 offenses with
punishments for conduct occurring in the District of Columbia, fifteen of which carried
mandatory minimum penalties.63 For example, receiving stolen goods carried a mandatory
minimum penalty of at least one year of imprisonment.64 Fifteen of the offenses also specified
mandatory minimum penalties for a second or subsequent offense.65 A second conviction for
receiving stolen goods carried a mandatory minimum penalty of at least two years of
imprisonment.66 In some instances, Congress prescribed mandatory minimum penalties for
offenses committed in the District of Columbia even where analogous federal offenses of general
application did not carry such penalties. The first offense for receiving stolen goods in the
District of Columbia carried a mandatory minimum penalty of one year of imprisonment and a
maximum term of five years of imprisonment, but under other federal law the offense of
receiving stolen goods carried no mandatory minimum penalty and a statutory maximum term of
imprisonment of three years.67
                                                            
58

See 1825 Crimes Act, § 10 (Abandoning a mariner), 4 Stat. 115, 117.

59

See 1825 Crimes Act, § 12 (Extortion by officer of the United States), 4 Stat. 115, 118.

60

See 1825 Crimes Act, §§ 8 (Receiving stolen goods), 19 (Forging ship’s certificates), 21 (Forging copper United
States coins), and 22 (Assault at sea), 4 Stat. 115, 116, 120-22.

61

See 1825 Crimes Act, § 7 (Breaking and entering a vessel) and the two offenses at § 13, (Perjury) and (Procuring
perjury), 4 Stat. 115, 116, 118.
62

See 1825 Crimes Act, §§ 2 (Burning of a non-dwelling house), 6 (Attacking a vessel of the United States), 9
(Plundering a vessel in distress), 16 (Embezzlement of Bank of the United States funds), 17 (Forging a public
security issued by the United States), 18 (Forging a financial instrument), 20 (Forging gold or silver United States
coins), and 23 (Conspiracy to destroy a vessel), 4 Stat. 115, 115-16, 118-22.
63

See 1831 DC Crimes Act, §§ 2 (Manslaughter, Assault with intent to kill), 3 (Arson), 4 (Rape), 5 (Assault and
battery with intent to rape), 6 (Burglary, Robbery), 7 (Horse stealing, Mayhem, Bigamy), 8 (Perjury), 9 (Larceny),
11 (Forgery), 12 (Obtaining goods by false pretenses, Keeping a gaming table), 4 Stat. 448, 448-50.
64

See 1831 DC Crimes Act, § 10, 4 Stat. 448, 449.

65

See 1831 DC Crimes Act, §§ 2 (Manslaughter, Assault with intent to kill), 3 (Arson), 4 (Rape), 5 (Assault and
battery with intent to rape), 6 (Burglary, Robbery), 7 (Horse stealing, Mayhem, Bigamy), 8 (Perjury), 9 (Larceny),
11 (Forgery), 13 (Petty larceny), 4 Stat. 448, 448-50.
66

See 1831 DC Crimes Act, § 10, 4 Stat. 449.

67

Compare 1831 DC Crimes Act, § 10, 4 Stat. 448, 449 with Crimes Act of 1825, § 8, 4 Stat. 115, 116. Also
compare 1831 DC Crimes Act §§ 8 (Perjury) (punishable by a term of imprisonment of not less than two nor more
than 10 years) and 11 (Forgery) (punishable by a term of imprisonment of not less than one nor more than to seven
years), 4 Stat. 448, 449 with 1825 Crimes Act § 13 (Perjury) (punishable by a term of imprisonment of a term not
exceeding five years) and either § 20 (forgery of U.S. gold or silver coins) or § 21 (U.S. copper coins) (punishable
by a term of imprisonment not to exceed 10 or three years, respectively), 4 Stat. 115, 118, 121.

12 

In subsequent years, Congress continued to enact criminal laws that addressed specific
needs, and these new laws sometimes imposed mandatory minimum penalties. In 1835,
Congress enacted statutes concerning mutiny, encouragement of mutiny, and mistreatment of a
ship’s crew by the ship’s master or officers, which carried terms of imprisonment not to exceed
ten, five, and five years, respectively.68 In doing so, however, Congress also repealed the 1790
Crimes Act’s mandatory death penalty for mutiny.69 In 1840, Congress enacted legislation to
provide for the collection and safeguarding of public revenue, which included a mandatory
minimum penalty of at least six months of imprisonment for embezzlement of funds by an
officer charged with custody of public funds.70 In the late 1850s, Congress enacted a mandatory
minimum penalty of at least three years of imprisonment for offenses related to the forgery of
land titles in California and forging military land-warrants.71
C.

MANDATORY MINIMUM PENALTIES IN THE CIVIL WAR ERA

In the 1860s, as the federal government responded to the Civil War and its aftermath,
Congress enacted mandatory minimum penalties targeting individuals allied with the
Confederacy. In 1861, Congress created an offense intended to punish individuals who
conspired to overthrow the Government of the United States with a mandatory minimum penalty
of at least six months of imprisonment.72 A second offense punished individuals recruiting
personnel for military service against the United States with a mandatory minimum penalty of at
least one year of imprisonment, and also punished the recruit by the same mandatory minimum
penalty.73
In 1862, Congress enacted a law mandating death for certain Confederate spies.74 A
second offense created by the 1862 Act provided a mandatory minimum penalty of five years of
imprisonment for kidnapping a freed person with intent to sell the person into slavery.75 The
1862 Act also amended the penalty for treason created in the 1790 Crimes Act, reducing it from
mandatory death to “death; or, at the discretion of the court, . . . imprison[ment] at hard labor for

                                                            
68

See Act of Mar. 3, 1835, ch. XL, §§ 1 (Mutiny), 2 (Endeavoring to mutiny), and 3 (Mistreatment of ship’s crew),
4 Stat. 775, 775-77.
69

See Act of Mar. 3, 1835, ch. XL, § 1 (Mutiny), 4 Stat. 775, 776.

70

See Act of July 4, 1840, ch. XLI, § 17 (Embezzlement), 5 Stat. 385, 389. Congress repealed this Act the
following year but re-enacted a similar embezzlement offense with the same mandatory minimum. See Act of Aug.
13, 1841, ch. VII, §§ 1 (repealing Act of July 4, 1840), 2 (Embezzlement), 5 Stat. 439, 439-40.
71

See Act of May 18, 1858, ch. XL, 11 Stat. 290, 290-91; Act of Feb. 5, 1859, ch. XXIII, 11 Stat. 381, 381.

72

See Act of July 31, 1861, ch. XXXIII, 12 Stat. 284, 284.

73

See Act of Aug. 6, 1861, ch. LVI, 12 Stat. 317, 317.

74

See Act of Feb. 13, 1862, ch. XXV, § 4, 12 Stat. 339, 340.

75

See Act of Apr. 16, 1862,ch. LIV, § 8, 12 Stat. 376, 378. The maximum penalty was 20 years of imprisonment.

13 

not less than five years.”76
In 1863, Congress prohibited communications with the “present pretended rebel
Government” intended to affect the operations of the federal government without its permission
and punished such communications with a mandatory minimum penalty of not less than six
months of imprisonment.77 This offense was similar to the Logan Act of 1799, discussed supra,
which imposed a mandatory minimum penalty for like conduct with a foreign government. The
same year, Congress passed legislation regulating the drafting of men into military service that
included a mandatory minimum penalty of at least six months of imprisonment for anyone
encouraging desertion or sheltering a deserter.78 Fraud against the government carried a
mandatory minimum penalty of at least one year of imprisonment.79
In 1864, Congress created an offense targeting individuals who entice or aid seamen to
desert from the United States Navy and provided a mandatory minimum penalty of at least six
months of imprisonment.80 Other offenses enacted during the war carrying mandatory minimum
penalties included embezzlement by an officer or agent of a national bank, which carried a
mandatory minimum penalty of at least five years of imprisonment;81 creating or circulating
forged notes or possessing counterfeit engraving plates, which carried a mandatory minimum
penalty of at least five years of imprisonment;82 and damaging post office boxes, which carried a
mandatory minimum penalty of one year of imprisonment.83 For some other offenses, Congress
set mandatory minimum penalties of imprisonment for two years,84 six months,85 or three
months.86 In the period immediately following the war, Congress established several more
                                                            
76

See Act of July 17, 1862, ch. CXCV, § 1, 12 Stat. 589, 589-90. Regardless of whether the offender was punished
with death or imprisonment, the Act required that “all his slaves, if any, shall be declared and made free.” Id.
77

See Act of Feb. 25, 1863, ch. LX, 12 Stat. 696, 696.

78

See Act of Mar. 3, 1863, ch. LXXV, § 24, 12 Stat. 731, 735.

79

See Act of Mar. 2, 1863, ch. LXVII, § 3, 12 Stat. 696, 698.

80

See Act of July 1, 1864, ch. CCIV, 13 Stat. 343, 343.

81

See Act of Feb. 25, 1863, ch. LVIII, § 52 (Embezzlement), 12 Stat. 665, 680; see also Act of June 3, 1864, ch.
CVI, § 55 (Embezzlement), 13 Stat. 99, 116; Act of Mar. 3, 1869, ch. CXLV, 15 Stat. 339, 339 (extending penalties
to those who aid or abet such embezzlement). The maximum penalty was 10 years of imprisonment.

82

See Act of Feb. 25, 1863, ch. LVIII, §§ 57-58, 12 Stat. 665, 680-81. The maximum term of imprisonment was 15
years. See also Act of June 3, 1864, ch. CVI. §§ 59-60, 13 Stat. 99, 117.
83

See Act of Mar. 3, 1865, ch. LXXXIX, § 13, 13 Stat. 504, 506-07. The maximum term of imprisonment was
three years.
84

See Act of July 3, 1866, ch. CLXII, § 2, 14 Stat. 81, 81-82 (death caused by transporting nitroglycerine in a
passenger conveyance; no maximum).
85

See Act of Mar. 3, 1863, ch. LXXXI, § 2, 12 Stat. 755, 755 (federal officer’s disobeying a judicial order to
discharge a prisoner; no maximum).
86

See, e.g., Act of Mar. 3, 1865, ch. LXXIX, § 17, 13 Stat. 487, 489-90 (enlisting a person not eligible to serve, or
depriving a soldier of a bounty earned for service; maximum two years).

14 

mandatory minimum penalties, most commonly with a minimum term of one year of
imprisonment.87
D.

THE REVISED STATUTES: MANDATORY MINIMUM PENALTIES AFTER THE CIVIL WAR

In the 1870s, Congress codified federal law, resulting in the Revised Statutes, a
predecessor of the current United States Code.88 The absence of a prior codification makes it
difficult to state with precision how many mandatory minimum penalties were in effect at any
particular time because Congress tended to overwrite old laws with new ones and repealed an
uncertain number of provisions by implication. The Revised Statutes thus provide a snapshot of
all federal crimes and penalties in force in 1878.89
At least 108 offenses codified in the Revised Statutes carried a mandatory penalty. Of
these 108 offenses, 16 mandated death. Those capital offenses included murder, piracy, various
maritime crimes, and arson.90 Murder, piracy, and slave trafficking had carried the death penalty
                                                            
87

For statutes carrying a mandatory minimum penalty of one year of imprisonment, see, e.g., Act of July 13, 1866,
ch. CLXXXIV, § 45, 14 Stat. 98, 163 (for trafficking in distilled spirits, either imprisonment for not less than three
months or a fine); Act of Mar. 2, 1867, ch. CXCIII, 14 Stat. 557, 557 (for robbery or larceny of property of the
United States, either imprisonment at hard labor from one year to 10 years, or a fine, or both); Act of Mar. 2, 1867,
ch. CLXIX, § 26, 14 Stat. 471, 483-84 (for unlawful claims settlement by a revenue officer, maximum 10 years of
imprisonment); Act of July 14, 1870, ch. CCLIV, § 1, 16 Stat. 254, 254 (for perjury in connection with immigration,
maximum five years of imprisonment).
For statutes carrying mandatory minimum penalties of other lengths, see, e.g., Act of July 13, 1866, § 38,
14 Stat. 98, 159 (for fraudulent packaging of distilled spirits, imprisonment for a minimum of two years and a
maximum of five years); Act of Mar. 2, 1867, ch. CLXIX, §§ 9, 28, 29, 14 Stat. 471, 473, 484 (for evading liquor or
tobacco taxes, imprisonment for a minimum of 60 days and a maximum of two years; for impersonating a revenue
officer, imprisonment for a minimum of six months and a maximum of two years; for unlawfully mixing or selling
illuminating oils, imprisonment for a minimum of six months and a maximum of three years); Act of July 20, 1868,
ch. CLXXVI, §§ 44, 45, 48, 57, 71-72, 15 Stat. 125, 142-44, 149-50, 156-57 (for various offenses involving liquor
and tobacco taxes, imprisonment for minimum terms ranging from 10 days to two years); Act of Dec. 22, 1869, ch.
III, § 5, 16 Stat. 59, 60 (for hindering a member of the reconstructed legislature of Georgia from attending or
participating at session, imprisonment at hard labor for a minimum of two years and a maximum of 10 years); Act
of July 14, 1870, ch. CCLIV, § 2, 16 Stat. 254, 254-55 (for immigration fraud, either imprisonment at hard labor
from one year to five years, or a fine, or both); and Act of Mar. 3, 1871, ch. CXX, § 3, 16 Stat. 544, 570 (for making
an unlawful contract with Indians, imprisonment for a minimum of six months (with no maximum)).
88

See Ralph H. Dwan & Ernest R. Feidler, The Federal Statutes—Their History and Use, 22 MINN. L. REV. 1008,
1012-16 (1938). Congress enacted the first Revised Statutes of the United States in June 22, 1874, thereby
consolidating all of the general and permanent laws into a single act. See Act of June 22, 1874, §§ 5595-96, 18 Stat.
1, 1091. However, because of errors in that version, Congress authorized the publication of a second edition of the
Revised Statutes, which became law in 1878. See Act of Mar. 2, 1877, 19 Stat. 268, 268-69; Dwan & Feidler,
supra, at 1014-16.
89

See Revised Statutes (1878) [hereinafter the Revised Statutes or Rev. Stat.].

90

Rev. Stat. §§ 5323 (accessory before the fact to piracy), 5339 (murder), 5345 (rape in maritime jurisdiction),
5365 (owner destroying his vessel at sea), 5366 (person other than owner destroying a vessel at sea), 5368 (piracy
under the laws of nations), 5369 (seaman laying violent hands upon his commander), 5370 (robbery upon the high
seas), 5371 (robbery on shore by crew of piratical vessel), 5372 (murder upon the high seas), 5373 (piracy under
color of a foreign commission), 5374 (piracy by subjects or citizens of a foreign state), 5375 (piracy in confining,

15 

since the 1790 Crimes Act or, in the case of slave trafficking, since the 1820s. The Revised
Statutes repealed the mandatory death penalty for counterfeiting, one of the original capital
crimes established in the 1790 Crimes Act.91 The Revised Statutes also reflected Congress’s
1863 amendment to the treason offense, which was punishable by death or, in the court’s
discretion, by a term of at least five years of imprisonment.92
Of the 108 offenses codified in the Revised Statutes that carried a mandatory penalty, at
least 92 of those offenses carried a mandatory minimum term of imprisonment.93 Only one
offense — robbery of United States mail — required life imprisonment, but even then only upon
a second conviction; otherwise, the offense carried a mandatory minimum penalty of five years
of imprisonment.94 The remaining offenses required mandatory minimum penalties ranging
from 10 days (for offenses relating to the destruction of tobacco package tax stamps) to five
years of imprisonment (for counterfeiting national bank notes).
Over half (50) of the offenses in the Revised Statutes that carried a mandatory minimum
penalty involved internal revenue taxation, primarily aimed at preventing fraud in the collection
and payment of excise taxes on tobacco and alcohol. Shortly after the Civil War began, the
federal government levied excise taxes — for the first time since the late 18th century — on
alcohol, tobacco, and other goods in order to raise funds for the costly war effort.95 Excise taxes
constituted a large percentage of the federal government’s overall revenue, and therefore
thorough collection was a crucial goal, but it proved difficult.96 As one of many efforts aimed at
increasing compliance with the alcohol and tobacco duties, Congress enacted a variety of
mandatory minimum penalties.97 Of these mandatory minimum penalties, only one required
more than one year of imprisonment (a two-year mandatory minimum penalty for affixing false
                                                            
detaining, or transferring Negros on vessels for the purpose of slavery), 5385 (arson of a dwelling house within a
United States fort), 5387 (arson of a United States vessel of war), 5400 (rescue of an individual sentenced to death).
91

See Rev. Stat. § 5415.

92

See Rev. Stat. § 5332.

93

See Table C-1 (mandatory minimums penalties in the 1878 revised statutes) in Appendix C of this Report.

94

Rev. Stat. § 5472.

95

See Report of the Commissioner of Internal Revenue, at iv–vii (1875).

96

See ALBERT SIDNEY BOLLES, A FINANCIAL HISTORY OF THE UNITED STATES, FROM1861 TO 1885, at 421 (1886)
(“The frauds began soon after enacting the law, and quickly reached gigantic proportions. A congressional
investigating committee, in 1868, declared that if the tax were honestly paid, $200,000,000 would be collected
annually, when, in truth, not much more than one-eighth of that sum had been received.”). See Report of the
Commissioner of Internal Revenue for the Fiscal Year Ended June 30, 1875, at xiv–xx (1875) (detailing the nature
of the distilled spirits fraud and the government’s collection efforts).
97

These mandatory minimums were largely enacted in 1868. See Act of July 20, 1868, 15 Stat. 125. The Secretary
of the Treasury viewed the new legislation as an improvement over former law, in part because it was “more
rigorous in its punishment of offenders,” but cautioned that “its successful operation must depend upon the vigilance
and fidelity of the local officers. The corruption of storekeepers, gaugers, and assistant assessors . . . will always
open sources of ruin to honest tax-payers and loss to the treasury, which neither the wisest legislation nor the most
stringent regulations of the department can close.” Annual Report of the Secretary of the Treasury 480 (1868).

16 

tobacco stamps); eight required one year of imprisonment; 26 required at least six months of
imprisonment; eight required at least three months of imprisonment; and the remaining seven
required from 10 days to one month of imprisonment.98 However, evidence suggests that while
criminal prosecutions were a key feature of combating tax evasion,99 these mandatory minimum
penalties resulted in relatively few offenders being imprisoned100 and did not effectively increase
compliance with the revenue laws.101 Moreover, widespread evasion of the excise taxes ended
by the mid-1880s, apparently due not to the mandatory minimum penalties, but to advances in
the government’s ability to monitor alcohol output and reforms in the hiring and supervision of
revenue officers.102
Beyond revenue offenses, the Revised Statutes primarily employed mandatory minimum
penalties for offenses involving counterfeiting and forgery, piracy, and slave trafficking, in
addition to misconduct by government agents and interference with governmental functions.
The use of mandatory minimum penalties for offenses relating to counterfeiting, piracy, and
slave trafficking is unsurprising because they all were historically punishable by death.
Moreover, the mandatory minimum penalties in effect in 1878 were relatively short compared to
                                                            
98

See Table C-1 of this Report.

99

Annual Report of the Secretary of the Treasury on the State of the Finances, at xxxv-xxxvii (1875) (“The
Secretary considers it important to the future collection of the revenue, that all parties engaged in persistent and
systemic frauds shall be visited with the severest penalties of the law. To this end, instructions have been repeatedly
given . . . to render all proper assistance to the officers of the Department of Justice in the prosecution of the cases
now pending, and in the detection and punishment of such guilty parties as have not yet been indicted.”).
100

In 1889, the Attorney General reported to Congress that there were 14,588 federal criminal prosecutions, of
which 5,648 were brought under the internal revenue laws. Although the 14,588 prosecutions yielded 3,158
convictions, the federal government received only 29 prisoners that year who “were committed for violation of the
revenue laws.” Annual Report of the Attorney General of the United States, at vii to viii, xii (1889). Data for earlier
years is apparently unavailable for, as the Attorney General reported in 1873, it was difficult and costly to collect
imprisonment data from the wardens of the many state penitentiaries that held federal prisoners. See Annual Report
of the Attorney General of the United States for the Fiscal Year Ending June 30, 1873, at 5 (1873). However, based
on the data the Attorney General was able to collect in 1873, of the 16,201 persons in federal custody, 1,117 were
convicted of miscellaneous offenses (a category that apparently included those imprisoned for internal revenue
crimes in addition to many other types of offenses). See id. at 36-39.

101

See BOLLES, supra note 96, at 424-25 (“To destroy these frauds, which had grown to enormous dimensions, and
stretched their strong roots in so many directions, was not easy. The harder Congress tried to combat them, the more
they grew. Every remedy proved unavailing.”); United States v. Ulrici, 28 F. Cas. 328, 331 (C.C. Mo. 1875)
(“Notwithstanding the heavy penalties denounced against crimes which go to defraud the government of its revenue
from internal taxes, and notwithstanding the minuteness and particularity in the description of these crimes, and
notwithstanding all of the aids which Congress has given by legislation to the enforcement of the revenue laws, they
have been very imperfectly executed, and that the government is cheated out of perhaps one-half of its revenue,
especially that from the tax on whisky and tobacco.”).
102

See Report of the Commissioner of Internal Revenue for the Fiscal Year Ended June 30, 1882, at xv (1882).
(declaring a “successful close of the struggle to establish and maintain the internal-revenue laws of the United
States” and that “[f]rauds in the manufacture and sale of whisky and tobacco in the districts where they have hitherto
most prevailed have become the exception rather than the rule”); BOLLES, supra note 96, at 437 (attributing the
“marked improvement” in the collection of alcohol excise taxes to “[t]he method adopted in 1868 of measuring the
product at the still, and of requiring the payment of a tax on that quantity, together with the selection of better
officers for administering the law”).

17 

those Congress enacted in the 20th century, discussed infra. Only 19 of the 42 statutes carrying
a mandatory minimum penalty for offenses unrelated to revenue required a term of imprisonment
of more than one year, and most of those 19 offenses were lesser versions of capital slave
trafficking and maritime offenses. 103 Only nine offenses carried a mandatory minimum penalty
of three years of imprisonment, and only two offenses carried a mandatory minimum penalty of
five years of imprisonment. Thus, many of the mandatory minimum penalties in the Revised
Statutes applied to offenses that historically had carried severe penalties, and the mandatory
minimum penalties in the Revised Statutes were generally shorter than the mandatory minimum
penalties that are most commonly applied today.
E.

THE 1909 CRIMINAL CODE AND SUBSEQUENT CODIFICATIONS IN THE FIRST HALF OF
THE 20TH CENTURY

In the late 1800s, Congress initiated a chain of events that led to the repeal of some of the
mandatory minimum penalties codified in the Revised Statutes. In 1897, Congress created the
Commission to Revise and Codify the Criminal and Penal Laws of the United States.104
Congress initially charged the Revision Commission with revising and codifying the federal
criminal and penal codes,105 but before the Revision Commission submitted its report, Congress
expanded its duties to include a complete revision and codification of all federal laws.106
In its reports to Congress, the Revision Commission recommended the abolition of
mandatory minimum penalties for many crimes not punishable by death.107 The Revision
Commission explained in a 1901 interim report that prescribing only statutory maximum
sentences instead of mandatory minimum penalties embraced “the more enlightened practice [of]
fit[ting] the punishment to the criminal” rather than assigning penalties based solely on the
offense committed.108 The Revision Commission further explained in its final report in 1906 that
it had changed criminal penalties “in some instances to mitigate the severity that characterized
former times, and in others to respect the principle of proportioning the punishment to the
relative gravity of the offenses.”109
                                                            
103

See Table C-1 of this Report.

104

See Act of June 4, 1897, 30 Stat. 11, 58 [hereinafter the Revision Commission].

105

Id. at 58.

106

See S. REP. NO. 60–10, pt. 1, at 1-2 (1908).

107

See Revision Commission to Revise and Codify the Laws of the United States, Final Report of the Commission
to Codify and Revise the Laws of the United States (1906). The Revision Commission’s revisions and codifications
of the criminal code did not include the mandatory minimum penalties relating to internal revenue enforcement. See
id. Thus, the Revision Commission’s final report left those penalties in place. See id.
108

See Revision Commission to Revise and Codify the Criminal and Penal Laws of the United States, Report on the
Penal Code of the United States, at xxii (1901). The Revision Commission also favored a parole system but
recognized that such a system was impractical because most federal prisoners were then housed in state rather than
federal institutions. See id. at xxxii–xxxiii.
109

See Revision Commission to Revise and Codify, supra note 107, at 100.

18 

In 1907, Congress established a Special Joint Committee on the Revision of the Laws,
which it directed “to examine, consider, and submit to Congress recommendations upon the
revision and codification of the laws reported by the statutory [R]evision [C]omission.”110 The
Committee first took up the portion of the Revision Commission’s work dealing with criminal
offenses, resulting in the enactment in 1909 of a new criminal code [hereinafter the 1909
Criminal Code].111 The Special Joint Committee largely agreed with the Revision Commission’s
opposition to mandatory minimum penalties.112
In its report, the Special Joint Committee on the Revision of the Laws gave the following
reasons for repealing mandatory minimum penalties:
The committee has also adopted a uniform method of fixing in all offenses
not punishable by death the maximum punishment only, leaving the minimum to
the discretion of the trial judge.
The criminal law necessarily subjects to its corrective discipline all who
violate its provisions. The weak and the vicious, the first offender and the
atrocious criminal, the mere technical transgressor and the expert in crime are
alike guilty of the same offense. In the one case the utmost severity of
punishment can scarcely provide the protection to which society is entitled; in the
other anything except a nominal punishment may effectually prevent the
reclamation of the offender.
The argument most frequently urged against leaving the minimum
punishments to the discretion of the trial judge is that it affords parties convicted
of a crime of a heinous character an opportunity to obtain immunity because of
the weakness or dishonesty of judges. It has been well said by a distinguished
authority upon this subject that—
Instances of the former are rare, and of the latter none is believed
by us ever to have existed. The purity of our judiciary is one of the
things which calumny has yet left untouched.
This recommendation will be found in accordance with the humane spirit
of advanced criminal jurisprudence. The early English statutes were proverbially
cruel; the gravest crimes and the most trivial offenses alike invoked the penalty of
death. Our own crimes act of 1790 reflected this barbarous spirit and denounced
the death penalty for thirteen distinct offenses, but this spirit of vindictive
retribution has entirely disappeared. We have abolished the punishment of death
in all but three cases—treason, murder, and rape—and have provided that even in
these cases it may be modified to imprisonment for life; and as humane judges in
England availed themselves of the most technical irregularities in pleadings and
proceedings as an excuse for discharging prisoners from the cruel rigors of the
                                                            
110

See S. REP. NO. 60–10, pt. 1, at 1 (1908); H.R.J. Res. 19, 59th Cong., 34 Stat. 1423, 1423 (1907).

111

See Act of Mar. 4, 1909, ch. 321, 35 Stat. 1088.

112

See S. REP. NO. 60–10, pt. 1, at 14 (1908).

19 

common law, so jurors here often refuse to convict for offenses attended with
extenuating circumstances rather than submit the offender to what in their
judgment is the cruel requirement of a law demanding a minimum punishment.113
The 1909 Criminal Code repealed at least 31 of the mandatory minimum terms of
imprisonment codified in the Revised Statutes, representing mandatory minimum penalties for
offenses including misconduct by government employees, counterfeiting and forgery, and slave
trafficking.114 Although the Revision Commission had recommended the repeal of additional
mandatory minimum penalties as part of its codification of all federal law, Congress enacted
only the Revision Commission’s work on the Criminal Code and the Judicial Code.115 Thus,
mandatory minimum penalties with respect to offenses that were not included in the Criminal
Code remained in force after 1909. The substantial majority of the remaining mandatory
minimum penalties related to internal revenue collection, discussed supra.116
In addition to eliminating some mandatory minimum penalties, Congress in enacting the
1909 Criminal Code reduced the penalties for various offenses from mandatory death to
mandatory life imprisonment. Those offenses were detaining or transferring slaves aboard a
vessel, seizing slaves on foreign shores, piracy, a seaman laying violent hands upon his
commander, robbery on shore by a piratical crew, piracy under color of foreign commission, and
piracy by aliens—all of which had been punishable by death since the early republic.117 The
1909 Criminal Code replaced the mandatory death penalty for rescuing a condemned person and
arson with statutory maximum terms of up to 25 and 20 years of imprisonment, respectively.118
                                                            
113

See S. REP. NO. 60–10, pt. 1, at 14 (1908).

114

Compare 1909 Criminal Code § 341 (enumerating repealed sections of the Revised Statutes), with Table C-1
(Mandatory Minimum Penalties in the 1878 Revised Statutes) in Appendix C of this Report.

115

See Dwan & Feider, supra note 88, at 1018.

116

The evidence indicates that the mandatory minimum penalties relating to internal revenue collection were rarely
used in the late-19th century. Revenue officials observed as early as 1882 that the government had successfully
ended widespread fraud in collection of excise taxes, and incarceration statistics from the post-Reconstruction era
show that not many defendants were imprisoned for committing internal revenue offenses. See supra notes 96 to
104 and accompanying text. This trend continued into the 20th century. For example, in 1910, the Attorney
General reported that there were 15,371 completed criminal prosecutions nationwide. While 4,355 of those
prosecutions involved internal revenue offenses, only 161 of newly-incarcerated federal prisoners were held on
account of violating the internal revenue laws. See Annual Report of the Attorney General of the United States for
the Year Ended June 30, 1910, at 36, 67 (1910). The same year, fines totaling $278,746.58 were assessed in internal
revenue criminal cases. See id. at 67.

117

See 1909 Criminal Code §§ 246 (confining, detaining or transferring slaves aboard a vessel, punished by life
imprisonment), 247 (seizing slaves on foreign shores, punished by life imprisonment), 290 (piracy under the law of
nations, punished by life imprisonment), 294 (seaman laying violent hands upon his commander, punished by life
imprisonment), 302 (robbery on shore by a piratical crew, punished by life imprisonment), 304 (piracy under color
of foreign commission, punished by life imprisonment), 305 (piracy by aliens, punished by life imprisonment); see
also supra note 90 (mandatory capital crimes in the Revised Statutes).

118

See 1909 Criminal Code §§ 142 (rescue of a condemned person going to or at an execution), 285 (arson of a
dwelling house in the maritime or territorial jurisdiction), 286 (arson of another building or a vessel in the maritime
or territorial jurisdiction).

20 

First degree murder and rape remained mandatory capital crimes in the 1909 Criminal Code;119
second degree murder, obstructing the escape of a shipwrecked person, and holding out a false
light to a vessel in distress carried mandatory minimum penalties of 10 years of imprisonment;120
destruction of a vessel required imprisonment for life or a “term of years”;121 and treason
continued to carry an alternative penalty structure requiring either death or a mandatory
minimum of five years of imprisonment.122
Congress subsequently enacted offenses carrying mandatory minimum penalties in the
Prohibition Era. Congress passed the Volstead Act in October 1919, in anticipation of the
ratification of the Eighteenth Amendment.123 The Act placed significant restrictions on the
unlawful manufacture or sale of alcohol and punished some violations with mandatory minimum
penalties. A first offense for unlawful manufacture or sale received a maximum penalty of six
months of imprisonment; a second or subsequent offense received a mandatory minimum penalty
of at least one month but not more than five years of imprisonment.124 Additional mandatory
minimum penalties were prescribed for maintaining a premise where alcohol was unlawfully
sold125 (at least 30 days of imprisonment) and contempt for violating an injunction concerning
any provision of the Volstead Act126 (at least 30 days of imprisonment). These mandatory
minimum penalties were as short-lived as Prohibition itself; Congress repealed the Volstead Act
and its penalty provisions upon ratification of the Twenty-First Amendment.127
In 1948, with the enactment of Title 18 of the United States Code, Congress changed the
punishment for rape from mandatory death to “death, or imprisonment for any term of years or
for life,”128 but added a mandatory minimum penalty of 10 years of imprisonment for homicide
or kidnapping during a bank robbery or larceny.129 Congress also reduced the applicable penalty
                                                            
119

See 1909 Criminal Code §§ 275 (first degree murder), 278 (rape).

120

See 1909 Criminal Code §§ 275 (second degree murder), 297 (obstructing escape of a shipwrecked person), 297
(holding out false light to a vessel in distress).

121

See 1909 Criminal Code §§ 300 (owner destroying vessel at sea), 301 (other person destroying, or attempting to
destroy, a vessel at sea).

122

See 1909 Criminal Code § 2 (treason).

123

See National Prohibition (Volstead) Act, Pub. L. No. 66–66, 41 Stat. 305 (1919); Amendment to the
Constitution, 40 Stat. 1941, 1941-42 (1919) (certifying the ratification of the Eighteenth Amendment).

124

See Pub. L. No. 66–66, § 29, 41 Stat. 305, 316 (1919).

125

See Pub. L. No. 66–66, § 3, 41 Stat. 305, 306 (1919).

126

See Pub. L. No. 66–66, § 24, 41 Stat. 305, 315 (1919).

127

See U.S. Const. amend. XXI; see also Liquor Law Repeal and Enforcement Act, Pub. L. No. 74–347, 49 Stat.
872 (1935) (repealing titles I and II, and amending title III, of the Volstead Act).

128

See 18 U.S.C. § 2031 (1948), 62 Stat. 683, 795.

129

See 18 U.S.C. § 2113(e) (1948).

21 

for seizing persons on foreign shores to sell into slavery and holding slaves aboard a vessel from
mandatory life imprisonment to indefinite terms of imprisonment of up to seven or four years,
respectively.130
F.

MANDATORY MINIMUM PENALTIES FROM THE MID-TWENTIETH CENTURY

1. Introduction
As detailed herein, beginning in 1951, Congress changed how it used mandatory
minimum penalties in three significant ways. First, Congress enacted more mandatory minimum
penalties. Second, Congress expanded its use of mandatory minimum penalties to offenses not
traditionally covered by such penalties. Before 1951, mandatory minimum penalties typically
punished offenses concerning treason, murder, piracy, rape, slave trafficking, internal revenue
collection, and counterfeiting. Today, the majority of convictions under statutes carrying
mandatory minimum penalties relate to controlled substances, firearms, identity theft, and child
sex offenses. Third, the mandatory minimum penalties most commonly used today are generally
lengthier than mandatory minimum penalties in earlier eras.
In the second half of the 20th century, Congress reversed its prior policy of disfavoring
mandatory minimum penalties to combat what it perceived as widespread problems resulting
from drug trafficking and related crime. In 1951, Congress enacted a mandatory minimum
penalty of two years of imprisonment for violating the Narcotic Drugs Import and Export Act,
which broadly prohibited the importation, sale, purchase, and receipt of controlled substances.131
Second and third violations of the Act carried mandatory minimum penalties of five and 10 years
of imprisonment, respectively.132 And when Congress created additional controlled substances
offenses in 1956, it set a mandatory minimum penalty of 10 years of imprisonment for selling
heroin to a juvenile and five years of imprisonment for a first offense of possessing narcotics on
a vessel.133
By the late 1960s, however, as mandatory minimum penalties for drug offenses became
increasingly unpopular, the Nixon administration proposed a sweeping reform of the controlled
substance sentencing laws.134 As a result, Congress enacted the Comprehensive Drug Abuse
Prevention and Control Act of 1970,135 which repealed nearly all mandatory minimum penalties
for drug offenses. Congress believed that changes in the existing penalties, “particularly through
elimination of mandatory minimum sentences,” would establish “a more realistic, more flexible,
                                                            
130

See 18 U.S.C. §§ 1585 (Seizure, detention, transportation or sale of slaves), 1587 (Possession of slaves aboard
vessel) (1948), 62 Stat. 683, 773.

131

See Pub. L. No. 82–255, § 1, 65 Stat. 767, 767 (1951).

132

See id.

133

See Narcotics Control Act of 1956, §§ 103, 105, 107, 108, Pub. L. No. 84–728, 70 Stat. 567, 568, 570-71.

134

See. e.g., 116 Cong. Rec. 33,315 (1970) (statement of Rep. MacGregor).

135

Pub. L. No. 91–513, 84 Stat. 1236 (1970).

22 

and thus more effective system of punishment and deterrence of violations of the federal
narcotics laws.”136
Congress’s repeal of mandatory minimum penalties for drug offenses did not necessarily
reflect a general policy disfavoring mandatory minimum penalties for all types of offenses. For
example, Congress also amended 18 U.S.C. § 924(c) to require a mandatory minimum penalty of
at least one year of imprisonment for using or carrying a firearm during the commission of a
felony, as well as a mandatory consecutive two-year term of imprisonment for second and
subsequent offenses.137 In 1970, the same year it repealed mandatory minimum penalties for
drug offenses, Congress created a mandatory minimum penalty of at least one year of
imprisonment for using or carrying explosives while committing certain other crimes.138
Congressional action in the 1980s resulted in the enactment of many additional
mandatory minimum penalties and an increase in the length of existing penalties—particularly
for drug offenses and violent crimes.139 Congress’s use of mandatory minimum penalties in this
period followed a shift in sentencing attitudes away from a rehabilitative model toward
controlling crime using “more certain, less disparate, and more appropriately punitive”
sentences.140 This shift contributed to the enactment of the mandatory minimums that are most
commonly applied today, particularly the penalties for firearm and drug trafficking crimes.
2. Mandatory Minimum Penalties for Drug Offenses
The Anti-Drug Abuse Act of 1986141 established the basic framework of mandatory
minimum penalties currently applicable to federal drug trafficking offenses. The quantities
triggering those mandatory minimum penalties, which ranged from five years to life
imprisonment, differed for various drugs and, in some cases, including cocaine, for different
forms of the same drug. Congress expedited passage of the 1986 Act in response to a number of
circumstances, including the increased incidence of drug use and trafficking and well-publicized
tragic incidents such as the June 1986 death of Boston Celtics’ first-round draft pick, Len Bias.
Because of the heightened concern and national sense of urgency surrounding drugs generally
and crack cocaine specifically, Congress bypassed much of its usual deliberative legislative

                                                            
136

H. REP. NO. 91–1444 (1970), reprinted in 1970 U.S.C.C.A.N. 4566.

137

See Omnibus Crime Control Act of 1970, Pub. L. No. 91–644, tit. II, § 13, 84 Stat. 1880, 1889-90 (1971).

138

See Pub. L. No. 91–452, tit. XI, § 1102, 84 Stat. 922, 957 (1970) (codified as amended at 18 U.S.C. § 844(h)).

139

During this time period Congress also developed and passed the Sentencing Reform Act.

140

1991 COMMISSION REPORT at 7.

141

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

23 

process.142 As a result, Congress held no committee hearings and produced no reports related to
the 1986 Act (although there were 17 related reports on various issues).143
Floor statements delivered by members in support of the 1986 Act and a committee
report on a predecessor bill suggest that Congress intended to create a two-tiered penalty
structure for discrete categories of drug traffickers. Specifically, Congress intended to link the
five-year mandatory minimum penalties to what some called “serious” traffickers and the tenyear mandatory minimum penalties to “major” traffickers. Drug quantity would serve as a proxy
for identifying the type of trafficker.144
Senator Robert Byrd, then the Senate Minority Leader, summarized the intent behind the
legislation:
For the kingpins — the masterminds who are really running these operations —
and they can be identified by the amount of drugs with which they are involved
— we require a jail term upon conviction. If it is their first conviction, the
minimum term is 10 years. . . . Our proposal would also provide mandatory
minimum penalties for the middle-level dealers as well. Those criminals would
also have to serve time in jail. The minimum sentences would be slightly less
than those for the kingpins, but they nevertheless would have to go to jail — a
minimum of 5 years for the first offense.145
A report issued by the House Judiciary Subcommittee on Crime following its
consideration of a predecessor bill also provides evidence of Congress’s intent to establish twotiered mandatory minimum penalties for serious and major traffickers. The Subcommittee
determined that the five and ten-year mandatory minimum sentencing structure would encourage
the Department of Justice to direct its “most intense focus” on “major traffickers” and “serious
traffickers.”146 “One of the major goals of this bill is to give greater direction to the DEA and the
U.S. Attorneys on how to focus scarce law enforcement resources.”147
The 1986 Act distinguished between powder cocaine and cocaine base (also known as
crack cocaine), by treating quantities of cocaine base differently than similar quantities of
                                                            
142

See e.g., 132 CONG. REC. 26,436 (Sept. 26, 1986) (statement of Sen. Hawkins) (“Drugs pose a clear and present
danger to America’s national security. If for no other reason we should be addressing this on an emergency basis.”).

143

See U.S. SENT’G COMM’N, REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY 5-6 (May
2002).

144

See U.S. SENT’G COMM’N, REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY 6 (May
2002).
145

132 CONG. REC. 27,193–94 (Sept. 30, 1986); see also 132 CONG. REC. 22,993 (Sept. 11, 1986) (statement of
Rep. LaFalce) (“[S]eparate penalties are established for the biggest traffickers, with another set of penalties for other
serious drug pushers.”).

146

H.R. REP. NO. 99–845, pt. 1, at 11-12 (1986).

147

Id. at 11.

24 

powder cocaine.148 Under the so-called “100-to-1” ratio, the 1986 Act established a mandatory
minimum penalty of five years of imprisonment for trafficking offenses involving at least five
grams of crack cocaine, whereas trafficking offenses involving powder cocaine required at least
500 grams of the substance to trigger the same mandatory minimum.149 The legislative history
of the ratio shows that, in addition to viewing the ratio as consistent with the Act’s general
serious/major trafficker penalty structure,150 Congress predicated the ratio upon its conclusion
that crack cocaine was more dangerous than powder cocaine because of its especially deleterious
effects on the communities where it was becoming increasingly prevalent.151 Congress has since
altered the penalties applicable to crack cocaine in the Fair Sentencing Act of 2010, as discussed
in more detail below.
In 1988, the Omnibus Anti-Abuse Act established a five-year mandatory minimum
penalty for possessing more than five grams of crack cocaine, in addition to increasing the
mandatory minimum penalty for engaging in a continuing drug enterprise (from 10 to 20 years of
imprisonment).152 The 1988 Act also extended the mandatory minimum penalties for drug
trafficking crimes to include conspiracies to commit those substantive offenses, thereby
broadening the scope of mandatory minimum penalties to include virtually all offenders in drug
trafficking organizations.153
3. Mandatory Minimum Penalties for Firearms Offenses
With respect to firearms offenses, in 1984 Congress amended 18 U.S.C. § 924 to provide
a mandatory penalty of five years of imprisonment for using or carrying a firearm during a
“crime of violence,”154 and elsewhere established mandatory sentencing enhancements for
                                                            
148

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

149

See id.

150

132 CONG. REC. 26,447 (Sept. 26, 1986) (statement of Sen. Chiles) (“Those who possess 5 or more grams of
cocaine freebase will be treated as serious offenders. Those apprehended with 50 or more grams of cocaine freebase
will be treated as major offenders. Such treatment is absolutely essential because of the especially lethal
characteristics of this form of cocaine.”)

151

See, e.g., 132 CONG. REC. 31,329-30 (Oct. 15, 1986) (statement of Sen. Chiles) (“And so we find that people,
when they are addicted, will go out and steal, rob, lie, cheat, take money from any savings, take refrigerators out of
their houses, anything they can get their hands on to maintain that habit. That, of course, has caused crime to go up
at a tremendously increased rate in our cities and in our States – the crimes of burglary, robbery, assault, purse
snatching, mugging, those crimes where people are trying to feed that habit.”); 132 CONG. REC. 27,176 (Sept. 30,
1986) (statement of Sen. Hart) (“Then along came crack-cocaine – and the high was available to all. So too,
however, were the lows: The raging paranoia, the addiction rooted deep in the brain’s chemical structure, and worst,
the senseless deaths.”); 132 CONG. REC. 5983 (Mar. 21, 1986) (statement of Rep. Rangel) (“What is most
frightening about crack is that it has made cocaine widely available and affordable for abuse among our youth.”).
152

See Pub. L. 100–690, §6371, 102 Stat. 4181, 4370 (1988) (amending 21 U.S.C. § 844); id. § 6481(a) (amending
21 U.S.C. § 848(a)).

153

See id. § 6470(a) (amending 21 U.S.C. §§ 846, 963).

154

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

25 

possessing dangerous ammunition during drug and violent crimes.155 Two years later, in 1986,
Congress expanded the scope of section 924(c) to include carrying or using a firearm during a
drug trafficking crime.156 Congress also substantially expanded the armed career criminal
provision at section 924(e), and its mandatory minimum penalty of 15 years of imprisonment, to
cover firearms possession offenses committed by those with three convictions for crimes broadly
defined as “violent felonies” and “serious drug offenses.”157
In 1998, Congress again amended 18 U.S.C. § 924(c) in three ways,158 primarily in
response to the Supreme Court’s decision in Bailey v. United States, in which the Court
interpreted the prior version of section 924(c) to require the defendant’s “active employment” of
a firearm in the predicate offense.159 First, prior law had established a mandatory minimum
penalty of five years of imprisonment for an offender who “use[d] or carrie[d]” a firearm during
and in relation to a crime of violence or drug trafficking crime.160 Congress amended the statute
also to require a mandatory minimum penalty of five years of imprisonment if the offender
“possesses a firearm” “in furtherance of any such crime.”161 Second, Congress established more
severe mandatory minimum penalties for certain offenders depending on whether, in violating
section 924(c), a firearm was “brandished” or “discharged”— requiring mandatory minimum
penalties of seven years and 10 years of imprisonment, respectively.162 Finally, Congress
increased the mandatory minimum penalty for second or subsequent convictions under section
924(c) from 20 years to 25 years of imprisonment.163 Thus, in addition to responding to the
decision in Bailey, Congress also amended section 924(c) to ensure that more serious offenses
carried progressively higher mandatory minimum penalties.164
                                                            
155

See Pub. L. No. 98–473, § 1006(a), 98 Stat. 1837, 2139 (1984) (codified as amended at 18 U.S.C. § 929).

156

See Pub. L. No. 99–308, § 104, 100 Stat 449, 456 (1986) (amending 18 U.S.C. § 924(c)).

157

See Career Criminals Amendment Act of 1986, Pub. L. No. 99–570, § 1402, 100 Stat. 3207, 3207-39 to 40.
Previously, § 924(e) applied only to those convicted of burglaries and robberies. Id.

158

Pub. L. No. 105–386, 112 Stat. 3469 (1998).

159

516 U.S. 137, 143 (1995).

160

See 18 U.S.C. § 924(c) (1994). Both prior and present versions of section 924(c) establish longer, 10- and 30year mandatory minimum penalties for certain types of firearms, such as assault weapons, short-barreled shotguns
and rifles, machineguns, destructive devices, and firearms equipped with silencers or mufflers. See id.

161

Pub. L. No. 105–386, 112 Stat. 3469 (1998).

162

Id.

163

Id.

164

144 CONG. REC. 1,715–16 (Feb. 24, 1998) (statement of Rep. McCollum); 144 CONG. REC. 1,718 (Feb. 24,
1998) (statement of Rep. Buyer). 144 Cong. Rec. 1,717 (Feb. 24, 1998) (statement of Rep. Myrick). As originally
passed by the House, the amendment would have imposed substantially more severe sentences than the enacted
version: requiring 10 years of imprisonment for possession, 15 years of imprisonment for brandishing, and 20 years
of imprisonment for discharging the firearm, along with more severe penalties for subsequent convictions. H.R.
424, 105th Cong. § 1 (1998) (as passed by the House of Representatives, Feb. 24, 1998), reprinted in 144 CONG.
REC. 1,715 (Feb. 24, 1998). The Senate’s version contained less severe penalties (five years for possession, 10 years

26 

4. Mandatory Minimum Penalties for Child Sexual Exploitation and Related Offenses
Congress also has enacted mandatory minimum penalties to combat child sexual
exploitation. When Congress outlawed the production of child pornography in 1978, it
established a mandatory minimum penalty of two years of imprisonment for repeat offenders.165
By 1996, Congress had increased the penalties for production of child pornography to require a
mandatory minimum penalty of 10 years of imprisonment for first-time offenders, 15 years of
imprisonment for offenders with a prior conviction of a child sexual exploitation offense, and at
least 30 years of imprisonment for offenders with two such prior convictions.166 Similarly,
Congress prescribed mandatory minimum penalties of 20 years of imprisonment when it
established offenses in 1988 for the buying or selling of children.167 In addition, since 1978,
Congress has set mandatory minimum penalties for recidivist offenders who possess, receive,
and traffic in child pornography.168
The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today
(PROTECT) Act of 2003169 established new mandatory minimum penalties and increased
existing mandatory minimums for certain child sexual abuse and child pornography crimes.
Among other changes, Congress increased the mandatory minimum penalties for producing child
pornography and related conduct from 10 to 15 years of imprisonment for first-time offenders,
from 15 to 25 years of imprisonment for repeat child exploitation offenders, and from 30 to 35
years of imprisonment for offenders with more than two prior child exploitation convictions.170
The Act further increased the mandatory minimum penalty for the buying or selling of children
                                                            
for discharge, and no separate penalty for brandishing), see S. 191, 105th Cong. § 1 (as passed by Senate, Nov. 13,
1997), reprinted in 143 CONG. REC. S12712 (daily ed. Nov. 13, 1997), and the final amendment was the product of a
compromise between the House and Senate versions, See 144 CONG. REC. 25,036 (Oct. 9, 1998) (statement of Rep.
McCollum).
165

See Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225, § 2(a), 92 Stat. 7
(1978) (codified as amended at 18 U.S.C. § 2251).

166

See Child Pornography Prevention Act of 1996, Pub. L. No. 104–208, § 121(4), 110 Stat. 3009 (amending 18
U.S.C. § 2251(d)).

167

See Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100–690, § 7512(a), 102 Stat. 4181
(codified as amended at 18 U.S.C. § 2251A).

168

The Protection of Children Against Sexual Exploitation Act of 1977 established a mandatory minimum penalty
of two years of imprisonment for repeat offenders who traffic and are in receipt of child pornography. See Pub. L.
No. 95–225, § 2(a), 92 Stat. 7 (codified as amended at 18 U.S.C. § 2252). Later amendments extended these
penalties to trafficking and receipt child pornography offenders who had at least one conviction for a broad range of
child sexual exploitation offenses. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–
322, § 160001, 108 Stat. 1796 (amending 18 U.S.C. § 2252(b)). In 1996, Congress established a mandatory
minimum penalty of at least two years of imprisonment for offenders with a prior sexual exploitation conviction
who possess child pornography. See Child Pornography Prevention Act of 1996, Pub. L. No. 104–208, § 121(5),
110 Stat. 3009 (amending 18 U.S.C. § 2252(b)(2)).
169

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

170

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

27 

from 20 to 30 years of imprisonment,171 and the mandatory minimum penalty for possession of
child pornography by a recidivist offender from two to 10 years of imprisonment.172 Finally,
Congress established new mandatory minimum penalties for existing offenses, most notably by
requiring at least five years of imprisonment for receipt and distribution of child pornography,173
as well as a new mandatory minimum penalty of five years of imprisonment for enticing a minor
to travel in interstate commerce for criminal sexual activity.174
Congress viewed the PROTECT Act’s enhanced and new mandatory minimum penalties
as necessary to address child exploitation offenses, primarily by correcting what it perceived as
unduly lenient sentences for defendants who commit those crimes. The conference committee
concluded “[t]he increased mandatory minimum sentences are responsive to real problems of
excessive lenience in sentencing under existing law.”175 The conference committee found that
mandatory minimum penalties were necessary because “courts have been disposed to grant
downward departures from the guidelines for child pornography possession offenses . . . based
on the misconception that these crimes are not serious.”176 Senator Hatch, who introduced the
Act in the Senate, observed before final passage that “[t]he sentencing reforms will prevent
sentencing abuses in cases involving child and sexual crimes where too often we have seen
lenient sentences imposed.”177
Three years later, in the Adam Walsh Child Protection and Safety Act of 2006,178 which
included the Sex Offender Registration Notification Act (SORNA),179 Congress again increased
existing mandatory minimum penalties and established new mandatory minimum penalties for
certain sex offenses. The Adam Walsh Act, among other provisions, added a new mandatory
minimum penalty of at least 15 years of imprisonment for sex trafficking,180 increased the
mandatory minimum penalty from five to 10 years of imprisonment for enticing a minor to
                                                            
171

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

172

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

173

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

174

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

175

H.R. CONF. REP. NO. 66, at 43 (2003), reprinted in 2003 U.S.C.C.A.N. 683, 685.

176

Id.

177

149 CONG. REC. 9,387 (Apr. 10, 2003) (statement of Sen. Hatch). By contrast, Senator Feinstein spoke against
the extensive use of mandatory minimum penalties in the final version: “I am disappointed that Congress is poised,
once again, to demonstrate that we are ‘tough on crime’ by enacting new mandatory minimum sentences.” Id. at
9,376–77 (statement of Sen. Feinstein). She argued that the final bill expanded “the mandatory sentencing scheme
that is gradually replacing the guidelines system.” Id.

178

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

179

Pub. L. No. 109–248, 120 Stat. 587, 590 [hereinafter SORNA].

180

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

28 

engage in criminal activity,181 and established a mandatory minimum penalty of at least 20 years
of imprisonment for engaging in a child exploitation enterprise.182 SORNA created new offenses
relating to failing to register as a sex offender, for which Congress provided mandatory
minimum penalties triggered by specific aggravating circumstances. Those mandatory minimum
penalties apply to offenders who, having failed to register as a sex offender, commit a crime of
violence (consecutive mandatory minimum penalty of five years of imprisonment)183 or certain
federal felonies involving a child (consecutive mandatory minimum penalty of 10 years of
imprisonment).184
5. Mandatory Minimum Penalties for Identity Theft Offenses
Congress enacted the Identity Theft Penalty Enhancement Act in 2004, which established
new mandatory minimum penalties for identity theft offenses.185 The Act’s key provision
requires imprisonment for two years for aggravated identity theft, defined as knowingly
transferring, possessing, or using another person’s means of identification during and in relation
to enumerated identity theft offenses.186 The Act further requires the sentencing court to impose
the penalty consecutively to any sentence imposed for the underlying identity theft offense.187
Congress viewed these enhanced penalties as necessary to correct lenient sentences imposed for
identity theft offenses. As the House Judiciary Committee reported, “many perpetrators of
identity theft receive little or no prison time,” which “has become a tacit encouragement to those
arrested to pursue such crimes.”188
G.

RECONSIDERATION OF CERTAIN MANDATORY MINIMUM PENALTIES: THE FAIR
SENTENCING ACT OF 2010

Congress repealed and amended mandatory minimum penalties for crack cocaine
offenses in the Fair Sentencing Act of 2010.189 These mandatory minimum penalties had drawn
widespread criticism since their enactment in the 1980s. Beginning in 1995, for example, the

                                                            
181

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

182

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

183

Id. § 141 (codified at 18 U.S.C. §2250(c)).

184

Id. § 702 (codified at 18 U.S.C. § 2260A).

185

Pub. L. No. 108–275, 118 Stat. 831 (2004).

186

Id. § 2(a) (codified at 18 U.S.C. § 1028A(a)).

187

Id. (codified at 18 U.S.C. § 1028A(b)(2)).

188

H.R. REP. NO. 108–528, at 5 (2004), reprinted in 2004 U.S.C.C.A.N. 779, 781.

189

Pub. L. No. 111–220, 124 Stat. 2372.

29 

Commission submitted four reports to Congress calling for changes to federal cocaine sentencing
policy.190
The Act altered the mandatory minimum penalties established by the 1986 and 1988 Acts
by repealing the mandatory minimum penalty for simple possession of crack cocaine and by
increasing the quantities required to trigger the five- and ten-year mandatory minimum penalties
for crack cocaine trafficking offenses from five to 28 grams and 50 to 280 grams, respectively.191
There was broad bipartisan support for these changes among members of Congress.192 Members
cited various reasons for supporting the Act, including lack of evidentiary support for the 100-to1 ratio,193 racial disparities produced by the existing penalties,194 and the unfairness of the
existing mandatory penalties.195 Demonstrating an increased focus on the offender, the Act also
directed the Commission to provide for higher guideline sentences for all drug offenders based
on the presence of specified aggravating factors, such as bribing a law enforcement official to
facilitate the offense, maintaining an establishment for manufacturing or distributing controlled
substances, or obstructing justice while holding an aggravating role in the offense. The Act

                                                            
190

See U.S. SENT’G COMM’N, SPECIAL REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY
(1995); U.S. SENT’G COMM’N, SPECIAL REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY
(1997); U.S. SENT’G COMM’N, REPORT TO THE CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY (2002);
U.S. SENT’G COMM’N, REPORT TO CONGRESS: FEDERAL COCAINE SENTENCING POLICY (2007).
191

See Pub. L. No. 111–220, § 2, 124 Stat. 2372 (amending 21 U.S.C. §§ 841, 844).

192

The ranking member of the House Judiciary Committee, however, spoke against the Act in floor debates. See
156 CONG. REC. H6197 (daily ed. July 28, 2010) (statement of Rep. Lamar Smith) (“Now Congress is considering
legislation to wind down the fight against drug addiction and drug-related violence. Reducing the penalties for
crack cocaine could expose our neighborhoods to the same violence and addiction that caused Congress to act in the
first place.”).

193

See 155 Cong. Rec. S10493 (daily ed. Oct. 15, 2009) (statement of Sen. Specter) (explaining that intervening
research has undermined Congress’s original belief “that crack was uniquely addictive and was associated with
greater levels of violence than powder cocaine”); 156 CONG. REC. H6202 (daily ed. July 28, 2010) (statement of
Rep. Lungren) (“We didn’t really have an evidentiary basis [for the 100-to-1 ratio], but that’s what we did, thinking
we were doing the right thing at the time.”); 156 CONG. REC. H6199 (daily ed. July 28, 2010) (statement of Rep.
Jackson Lee) (“This disparity made no sense when it was initially enacted and makes absolutely no sense today . . .
.”).
194

See, e.g., 156 CONG. REC. S1680–81 (daily ed. Mar. 17, 2010) (statement of Sen. Durbin) (explaining that the
“net result” of the crack-powder disparity “was that the heavy sentencing we enacted years ago took its toll
primarily in the African-American community . . . and a belief in the African-American community that it was
fundamentally unfair”); 155 CONG. REC. S10493 (daily ed. Oct. 15, 2009) (statement of Sen. Specter) (“I do not
believe that the 1986 Act was intended to have a disparate impact on minorities but the reality is that it does.”).
195

See 156 CONG. REC. H6197 (July 28, 2010) (statement of Rep. Scott) (“The legislation does not fully eliminate
the 100-to-1 disparity in sentencing for crack and powder, but it does make good progress in addressing what is
widely recognized as unfair treatment of like offenders based simply on the form of cocaine they possessed.”); 155
CONG. REC. S10492 (daily ed. Oct. 15, 2009) (statement of Sen. Sessions) (“I will not favor alterations that
massively undercut the sentencing we have in place, but I definitely believe that the current system is not fair and
that we are not able to defend the sentences that are required to be imposed under the law today.”).

30 

further directed the Commission to provide for lower guideline sentences for certain offenders
who receive a guideline adjustment for minimum role.196
H.

MECHANISMS FOR RELIEF FROM MANDATORY MINIMUM PENALTIES
1.

Introduction

For almost a century, mechanisms have been in place permitting a court to impose a
sentence lower than a mandatory minimum penalty in certain cases. This section discusses the
historical development of such “relief” mechanisms.
In the early 20th century, district courts avoided imposing a term of imprisonment, even
for offenses carrying a mandatory minimum penalty, by suspending the sentence or by placing
the defendant under the supervision of a state probation officer.197 There were no federal statutes
governing probation at that time. In 1916, however, the Supreme Court held that district courts
lacked the authority to suspend sentences198 and further observed that federal courts were
without power to offer probation in the absence of congressional authorization.199
In 1925, Congress responded to the Supreme Court by passing the Federal Probation
Act,200 which expressly authorized district courts to suspend sentences and impose probation in
lieu of prison terms.201 Under the Act, a district court could avoid imposing a mandatory
minimum penalty, at least where the statute in question did not expressly preclude probation or a
suspended sentence.202 Congress repealed this relief mechanism as part of the broader reform of
sentencing policy provided by the Sentencing Reform Act.203

                                                            
196

See Pub. L. No. 111–220, § 6, 7, 124 Stat. 2372, 2373-74.

197

See United States v. Murray, 275 U.S. 347, 354 (1928) (prior to 1916, “‘the District Courts exercised a form of
probation either by suspending sentence or by placing the defendants under state probation officers or volunteers’”
(quoting H.R. REP. NO. 68-1377, at 1 (1925))).

198

See Ex Parte United States, 242 U.S. 27, 37 (1916) (the Killits case).

199

See id. at 52; Murray, 275 U.S. at 354.

200

Act of Mar. 4, 1925, ch. 521, 43 Stat. 1259.

201

18 U.S.C. § 3651 (repealed in 1987), provided in part: “Upon entering a judgment of conviction of any offense
not punishable by death or life imprisonment . . . any court having jurisdiction to try offenses against the United
States, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be
served thereby,” may suspend the imposition or execution of sentence and place the defendant “on probation for
such period and upon such terms and conditions as the court deems best.”

202

See id.; Rodriguez v. United States, 480 U.S. 522, 524 (1987) (statute at issue “is no different from many other
federal statutes requiring minimum sentences, which have uniformly been held to be subject to the suspension
authority of § 3651”).

203

The enactment of the Sentencing Reform Act is discussed in Chapter 3, infra.

31 

Nevertheless, Congress has provided other mechanisms by which a district court may
impose a term of imprisonment lower than a mandatory minimum penalty prescribed by statute.
These mechanisms are discussed below.
2. Substantial Assistance to the Authorities
Two related provisions allow a district court to impose a term of imprisonment lower
than a mandatory minimum penalty in cases where a defendant provides substantial assistance in
the investigation or prosecution of another person: Federal Rule of Criminal Procedure 35(b)
and 18 U.S.C. § 3553(e). At the time they went into effect, section 3553(e) and Rule 35(b) were
essentially identical, except that section 3553(e) applied at sentencing, and Rule 35(b) applied
post-sentencing.204
First, Federal Rule of Criminal Procedure 35(b) allows a court, upon the government’s
motion, to reduce a sentence after it is imposed if the defendant provides substantial assistance in
investigating or prosecuting another person. Prior to the enactment of the Sentencing Reform
Act, Rule 35(b) allowed the court to reduce a sentence for any reason within 120 days after the
sentence was imposed or probation was revoked,205 and the court had authority to change a
sentence from a term of incarceration to probation.206 The time limit was viewed as
jurisdictional; once the time limit expired, the court was without jurisdiction to consider a
reduction.207
The Sentencing Reform Act amended Rule 35(b) and made three significant changes.208
First, the government was required to make a motion seeking a reduction, which deprived the
court of authority to reduce a sentence on its own. Second, the time period was expanded from
120 days to one year. Third, the reduction was limited to reflect the defendant’s “substantial
assistance in the investigation or prosecution of another person who has committed an offense, in
                                                            
204

Although these provisions provide relief even from a statutory minimum sentence based on a defendant’s
“substantial assistance,” the legislative history does not articulate the rationale for the substantial assistance
framework. See United States v. Revis, 22 F. Supp. 2d 1242, 1259 (N.D. Okl. 1998) (citing G. Adam Schweikert,
III, Note, Third Party Cooperation: A Welcome Addition to Substantial Assistance Departure Jurisprudence, 30
CONN. L. REV. 1445, 1450, n. 29 (1998)), United States v. Severich, 676 F. Supp. 1209, 1212 (S.D. Fla. 1988).

205

The 1983 version of Rule 35(b) provided that the court, “may reduce a sentence within 120 days after the
sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon
affirmance of the judgment or dismissal of appeal. . . . Changing a sentence from a sentence of incarceration to a
grant of probation shall constitute a permissible reduction of a sentence under this subdivision.” FED. R. CRIM. P.
35(b) (1983).
206

Id.

207

See United States v. Hayes, 983 F.2d 78, 80 (7th Cir 1992) (citing United States v. Kajevic, 711 F.2d 767 (7th
Cir. 1983); Gaetner v. United States, 763 F.2d 787 (7th Cir. 1985)).

208

“The court, on motion of the government, may within one year after the imposition of the sentence, lower a
sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another
person who has committed an offense, in accordance with the guidelines and policy statements issued by the
Sentencing Commission pursuant to section 994 of title 28, United States Code.” FED. R. CRIM. P. 35(b) (1986).

32 

accordance with the guidelines and policy statements issues by the Sentencing Commission.”209
Thus, only the defendant’s “substantial assistance” could be considered when granting or
determining the size of a Rule 35 reduction. In addition, before the Act became effective,
Congress added language to Rule 35(b) authorizing the court to reduce a sentence lower than the
statutory minimum.210 Rule 35(b) was further amended in 1991 and 2002 to allow consideration
of substantial assistance provided beyond one year in certain circumstances.211
Second, 18 U.S.C. § 3553(e), which was enacted two years after the Sentencing Reform
Act as part of the Anti-Drug Abuse Act of 1986,212 grants a court limited authority to impose a
sentence below a mandatory minimum penalty at the time of sentencing. Specifically, the
section provides that “[u]pon motion of the Government, the court shall have the authority to
impose a sentence below a level established by statute as a minimum sentence so as to reflect a
defendant’s substantial assistance in the investigation or prosecution of another person who has
committed an offense.”213 Section 3553(e) further requires such a sentence to “be imposed in
accordance with the guidelines and policy statements issued by the Sentencing Commission
pursuant to section 994 of title 28, United States Code.” As directed by Congress, the
Commission incorporated this statutory mechanism for relief from mandatory minimum
sentences into the guidelines at USSG§5K1.1 (Substantial Assistance to Authorities (Policy
Statement)), which provides that the court may depart from the guidelines “[u]pon motion of the
government stating that the defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense.”214
                                                            
209

Id.; see also United States v. Poland, 562 F.3d 35 (1st Cir. 2009).

210

See FED. R. CRIM. P. 35(b) (1986) (“When acting under Rule 35(b), the court may reduce the sentence to a level
below the minimum sentence established by statute.”).

211

Federal Rule of Criminal Procedure 35(b)(2) provides:
Upon the government’s motion made more than one year after sentencing, the court may reduce a
sentence if the substantial assistance involved:
(A) information not known to the defendant until one year or more after sentencing;
(B) information provided by the defendant to the government within one year of sentencing, but
which did not become useful to the government until more than one year after sentencing; or
(C) information the usefulness of which could not reasonably have been anticipated by the
defendant until more than one year after sentencing and which was promptly provided to the
government after its usefulness was reasonable apparent to the defendant.

212

See Pub. L. No. 99–570, 100 Stat. 3207 (1986). A large piece of legislation, the Anti-Drug Abuse Act of 1986
contained twelve new acts, amended three others, and addressed numerous other topics.
213

18 U.S.C. § 3553(e). For additional discussion of section 3553(e) and relevant case law, see infra Appendix
E(A)(2), (B)(3) of this Report.

214

See 28 U.S.C. § 994(n) (“The Commission shall assure that the guidelines reflect the general appropriateness of
imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established
by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or
prosecution of another person who has committed an offense.”).

33 

3. The Safety Valve
Following the Commission’s 1991 report on mandatory minimum penalties,215 the
Commission worked directly with Congress to enact new legislation that would address the
impact of mandatory minimum penalties on low-level drug-trafficking offenders. In July 1993,
Judge William W. Wilkins, Jr., then-Chair of the Commission, testified at a hearing before the
House Subcommittee on Crime and the Criminal Justice. Judge Wilkins discussed the
drawbacks of mandatory minimum penalties and their incompatibility with the guidelines system
as outlined in the report, and offered a legislative proposal that would “bring[] about greater
coordination between mandatory minimums and the sentencing guidelines.”216 Specifically, he
proposed legislation for drug offenses that would require the Commission to use mandatory
minimum penalties only in establishing base offense levels, and would otherwise permit the
guidelines through downward adjustments or departures to provide for sentences below the
mandatory minimum penalties.217 Although Congress did not adopt the proposal, his testimony
encouraged other legislation that resulted in a more limited relief mechanism.218
In October 1993, the Senate considered a new bill, the Sentencing Improvement Act of
1993, the sole purpose of which was to enact a statutory “safety valve.” As proposed, the safety
valve would have permitted offenders convicted of certain drug offenses to avoid mandatory
minimum sentences if the defendant had no more than one criminal history point under the
guidelines, did not cause or threaten to cause death or serious injury during the offense, and did
not hold a leadership role in the offense.219 When introducing the bill, Senator Kennedy
explained that he “would prefer more comprehensive reform of mandatory sentencing laws,” but
that the proposal was a “small but important step in the effort to recapture the goals of sentencing
reform.”220 Similarly, Senator Simpson argued that the proposal would “correct” the injustice of
“nonviolent first-time offenders . . . being sentenced to terms under the Federal system that, as a
practical reality, even far exceed the terms served by some of the most violent criminals
punished under other laws and guidelines.”221
                                                            
215

See 1991 COMMISSION REPORT.

216

See Federal Mandatory Minimum Sentencing: Hearing Before the Subcomm. on Crime and Criminal Justice of
the H. Comm. on the Judiciary, 103rd Cong. (July 28, 1993) (statement of William W. Wilkins, Jr., Chairman,
United States Sentencing Commission), reprinted in 6 FED. SENT’G REP. 67 (1993).

217

Id.

218

See 140 CONG. REC. S14,716 (daily ed. Oct. 7, 1994) (statement of Sen. Kennedy) (describing the enacted safety
valve as “a version of the Wilkins proposal”).

219

Sentencing Improvement Act of 1993, S. 1596, 103d Cong. (1993), reprinted in 139 CONG. REC. 26,483–85
(Oct. 27, 1993).

220

139 CONG. REC. 26,484–85 (Oct. 27, 1993) (statement of Sen. Kennedy).

221

139 CONG. REC. 26,845 (Oct. 27, 1993) (statement of Sen. Simpson).

34 

Shortly after its introduction in the Senate, the proposed Sentencing Improvement Act of
1993 was incorporated into a proposed crime bill, the Violent Crime Control and Law
Enforcement Act.222 Although the Senate rejected an amendment that would have removed the
proposed safety valve provision altogether, it accepted an amendment by Senator Hatch that
significantly narrowed its application to offenders with no criminal history points, who had never
been imprisoned for a criminal conviction, whose offense did not result in death or serious bodily
injury, who did not carry or possess a firearm or dangerous weapon during the offense, who
played no leadership role, and who did not use or attempt to use physical force against another
person in the course of the offense.223 Senator Hatch explained that his safety valve proposal
was a “narrow reform needed to return a small degree of discretion to the courts for a small
percentage of nonviolent drug cases.”224
The Senate passed the narrower safety valve provision as an amendment to a version of
the Violent Crime Control and Law Enforcement Act already passed by the House, which
contained no safety valve.225 Before conference, the House amended its bill to include a broader
safety valve than passed by the Senate, by permitting up to one criminal history point and
allowing eligibility regardless of whether the defendant had previously been incarcerated. The
conference committee ultimately adopted the House’s broader version of the safety valve.226 The
House and Senate passed the bill as recommended by the conference committee,227 creating the
safety valve as codified at 18 U.S.C. § 3553(f).228
The enacted safety valve provision, entitled “Limitation on Applicability of Mandatory
Minimum Penalties in Certain Cases,” provided that judges shall impose a sentence without
regard to the statutory mandatory minimum penalty for offenses under section 401, 404, and 406
of the Controlled Substances Act (21 U.S.C. §§ 841 (possession with intent to distribute), 844
                                                            
222

See Violent Crime Control and Law Enforcement Act of 1993, S. 1607, 103d Cong. § 2404, (1993) (as
introduced Nov. 1, 1993).

223

Amend. 1131 to S. 1607 (as modified Nov. 8, 1993, amending Amend. 1130 to S. 1607), reprinted in 139 CONG.
REC. 27,839-40, 27847-48, 27914-15 (Nov. 8, 1993).
224

139 Cong. Rec. 27,842 (Nov. 8, 1993) (statement of Sen. Hatch). Senator Hatch stated that by returning this
discretion to the courts, his proposal would reduce disparities in the application of mandatory minimum penalties,
particularly disparities resulting from low-level nonviolent drug offenders’ inability to obtain relief from the
mandatory minimum penalty for rendering substantial assistance because they “have no information to provide the
authorities.” Id.

225

See 139 CONG. REC. S16301 (daily ed. Nov. 19, 1993); Violent Crime Control and Law Enforcement Act of
1993, H.R. 3355, 103d Cong., §2404 (as passed by Senate, Nov. 19, 1993), reprinted in 139 CONG. REC. 32,286-394
(Nov. 24, 1993).
226

See H.R. REP. NO. 103–711, at 197-98 (1994); 140 CONG. REC. 21,568-69 (Aug. 11, 1994); 140 CONG. REC.
23,617-18 (Aug. 21, 1994).
227

140 CONG. REC. 26,618 (Aug. 21, 1994); 140 CONG. REC. 24,114-15 (Aug. 25, 1994).

228

Violent Crime Control and Law Enforcement Act of 1994, § 80001, Pub. L. No. 103–322, 108 Stat. 1796
(codified at 18 U.S.C. § 3553(f)).

35 

(possession), 846 (conspiracy)) or section 1010 or 1013 of the Controlled Substances Import and
Export Act (21 U.S.C. §§ 961 (conspiracy), 963 (importation)) if the following factors were met:
(1)

The defendant does not have more than one criminal history point, as
determined under the sentencing guidelines;

(2)

The defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another
participant to do so) in connection with the offense;

(3)

The offense did not result in death or serious bodily injury to any person;

(4)

The defendant was not an organizer, leader, manager, or supervisor of
others in the offense, as determined by the sentencing guidelines and was
not engaged in a continuing criminal enterprise, as defined in § 848; and

(5)

No later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the
same course of conduct or of a common scheme or plan, but the fact that
the defendant has no relevant or useful or other information to provide or
that the government is already aware of the information shall not preclude
a determination by the court that the defendant has not complied with this
requirement.

The Commission subsequently incorporated the statutory safety valve provision into the
guidelines at USSG §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in
Certain Cases), which provides relief from the applicable mandatory minimum penalty for
offenders who meet certain criteria as well as a downward adjustment to their guidelines offense
level.229
Further discussion of the interaction of mandatory minimum penalties and the sentencing
guidelines follows in Chapter 3.

                                                            
229

See USSG App. C amend. 509 (effective Sept. 23, 1994). Defendants sentenced under USSG §2D1.1 and who
meet the safety valve subdivision criteria set forth at §5C1.2 receive a two-level downward adjustment to their base
offense levels, even if they were not convicted of an offense carrying a mandatory minimum penalty. See USSG
§2D1.1(b)(16). For additional discussion of the safety valve and relevant case law, see infra Appendix E(B)(3) to
this Report.

36 

Chapter 3

THE INTERACTION BETWEEN MANDATORY MINIMUM
PENALTIES AND THE SENTENCING GUIDELINES
A.

INTRODUCTION

The statutory directive requires the Commission to assess the compatibility of mandatory
minimum penalties with the federal guideline system established under the Sentencing Reform
Act and as modified by the Supreme Court’s decision in United States v. Booker.230 As part of
that assessment, this chapter presents an overview of the interaction between mandatory
minimum penalties and the sentencing guidelines. First, the chapter provides a history of the
Sentencing Reform Act, its directives to the Commission, the operation of the guidelines, and an
overview of how the Commission promulgates amendments to the guidelines. Next, the chapter
describes how the guidelines incorporate mandatory minimum penalties in formulating
sentencing ranges for various offenses. Finally, the chapter compares how mandatory minimum
penalties and the guidelines determine sentences.
B.

DEVELOPMENT AND OPERATION OF THE GUIDELINES
1.

History of the Sentencing Reform Act

The Sentencing Reform Act responded to an emerging consensus that the federal
sentencing system needed major reform.231 Prior to the Sentencing Reform Act, federal judges
possessed almost unlimited authority to fashion an appropriate sentence within a broad
statutorily prescribed range and “decided [] the various goals of sentencing, the relevant
aggravating and mitigating circumstances, and the way in which these factors would be
combined in determining a specific sentence.”232 Sentences were limited only by statutory
minimums and maximums. Because each judge was “left to apply his own notions of the
purposes of sentencing,” the federal sentencing system exhibited “an unjustifiably wide range of
sentences to offenders convicted of similar crimes.”233 Neither party had any meaningful right of
appellate review. In addition, the parole system, which applied to only a portion of those

230

543 U.S. 220 (2005).

231

See S. REP. NO. 97–307, at 956 (1981) (“glaring disparities . . . can be traced directly to the unfettered discretion
the law confers on those judges and parole authorities [that implement] the sentence); H.R. REP. NO. 98–1017, at 34
(1984) (“The absence of Congressional guidance to the judiciary has all but guaranteed that . . . similarly situated
offenders . . . will receive different sentences.”).
232

See U.S. SENT’G COMM’N, THE FEDERAL SENTENCING GUIDELINES: A REPORT ON THE OPERATION OF THE
GUIDELINES SYSTEM AND SHORT-TERM IMPACTS ON DISPARITY IN SENTENCING, USE OF INCARCERATION, AND
PROSECUTORIAL DISCRETION AND PLEA BARGAINING 9 (1991) [hereinafter 1991 COMMISSION REPORT ON THE
OPERATION OF THE GUIDELINES SYSTEM].
233

S. REP. NO. 97–307, at 955 (1981).

37

sentenced and which permitted the release of prisoners based on inconsistent ideas regarding the
potential for rehabilitation, exacerbated the lack of uniformity.234
The Sentencing Reform Act, the culmination of lengthy bipartisan efforts, sought to
eliminate unwarranted disparity in sentencing and to address the inequalities created by
indeterminate sentencing.235 Congress determined that sentencing should be tailored:
(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford adequate
deterrence to criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care or other correctional
treatment in the most effective manner.236
To this end, the Sentencing Reform Act created the Commission as an independent
agency within the judicial branch of the federal government237 and directed it to promulgate
guidelines that were required to be used for sentencing within the prescribed statutory
maximum.238 The statutory purposes of the Commission, among others, are to –
(1) establish sentencing policies and practices for the Federal criminal
justice system that –
(A) assure the meeting of the purposes of sentencing as set forth in section
3553(a)(2) of title 18, United States Code;
(B) provide certainty and fairness in meeting the purposes of sentencing,
avoiding unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar criminal conduct
while maintaining sufficient flexibility to permit individualized sentences
when warranted by mitigating or aggravating factors not taken into
account in the establishment of general sentencing practices; and
(C) reflect, to the extent practicable, advancement in knowledge of human behavior as it
relates to the criminal justice process.239
234

1991 COMMISSION REPORT ON THE OPERATION OF THE GUIDELINES SYSTEM, at 9 (citing United States v.
Grayson, 438 U.S. 41, 46 (1978)).

235

See S. REP. NO. 97–307 (1981); H.R. REP. NO. 98–1017 (1984); 28 U.S.C. § 994(k).

236

See 18 U.S.C. § 3553(a)(2).

237

Established as “as an independent commission in the Judicial Branch of the United States,” the Commission is
comprised of seven voting members (including the Chair) appointed by the President “by and with the advice and
consent of the Senate.” The Act provides that “[a]t least three of the [Commission’s] members shall be Federal
judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the
United States” and no more than four members of the Commission can be members of the same political party. The
Attorney General, or his designee, and the Chairman of the United States Parole Commission are designated as ex
officio non-voting members. See 28 U.S.C. § 991(a).
238

See 28 U.S.C. §§ 991, 994, and 995(a)(1).

239

See 28 U.S.C. § 991 (b)(1).

38

For nearly 20 years, federal judges were required to impose sentences within the
applicable guideline range unless the court found the existence of an aggravating or mitigating
circumstance not adequately taken into consideration by the Commission in formulating the
sentencing guidelines.240 This system changed in 2005, when the Supreme Court held in United
States v. Booker that the mandatory operation of the guidelines violated the Sixth Amendment
right to a jury trial and the associated right to have all “elements” of the offense proved beyond a
reasonable doubt.241 The Court remedied the constitutional violation by striking two provisions
from the Sentencing Reform Act, thereby rendering the guidelines “effectively advisory.”242 The
Court reasoned that although an advisory guideline system lacked the mandatory features that
Congress enacted, it nevertheless “retains other features that help to further congressional
objectives, including providing certainty and fairness in meeting the purposes of sentencing,
avoiding unwarranted sentencing disparities, and maintaining sufficient flexibility to permit
individualized sentences when warranted.”243 The Court concluded that an advisory guideline
system would “continue to move sentencing in Congress’s preferred direction, helping to avoid
excessive sentencing disparities while maintaining flexibility sufficient to individualize
sentences where necessary.”244
Booker and its progeny explicitly and repeatedly reinforced the continued importance of
the guidelines in the sentencing determination.245 District courts are required to properly
calculate and consider the guidelines when sentencing.246 “The district court, in determining the
appropriate sentence in a particular case, therefore, must consider the properly calculated
guideline range, the grounds for departure provided in the policy statements, and then the factors

240

18 U.S.C. § 3553(b).

241

543 U.S. at 244 (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.”). The Court did not hold that “mandatory” guidelines are
unconstitutional per se, but rather that the federal sentencing guidelines were unconstitutional as applied because
facts increasing the maximum sentence were found by a judge, not a jury. Accordingly, a guideline system could be
mandatory in nature and not violate the Sixth Amendment provided that the system requires that any facts increasing
the maximum sentence are either admitted by the defendant or determined by a jury upon proof beyond a reasonable
doubt. For a more detailed discussion of Booker and its impact on mandatory minimums, see infra Appendix
E(A)(3).
242

Id. at 245 (excising 18 U.S. C. §§ 3553(b)(1) and 3742(e)).

243

See USSG Ch. 1, Pt. A (Introduction and Authority).

244

543 U.S. at 264-65.

245

See Rita v. United States, 551 U.S. 338 (2007); Gall v. United States, 552 U.S. 38 (2007); Kimbrough v. United
States, 552 U.S. 85 (2007); Irizarry v. United States, 553 U.S. 708 (2008); Spears v. United States, 555 U.S. 261
(2009); Dillon v. United States, 130 S. Ct. 2683 (2010); Pepper v. United States, 131 S. Ct. 1229 (2011).

246

See 18 U.S.C. § 3553(a)(4), (a)(5); Booker, 543 U.S. at 264 (“The district courts, while not bound to apply the
Guidelines, must . . . take them into account when sentencing.”); Rita, 551 U.S. at 351 (stating that a district court
should begin all sentencing proceedings by correctly calculating the applicable Guidelines range); Gall, 552 U.S. at
49 (“As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point
and the initial benchmark.”).

39

under 18 U.S.C. § 3553(a).”247 Most circuits agree on the three-step approach reflected in USSG
§1B1.1 (Application Instructions), including the consideration of departure provisions in the
Guidelines Manual, in determining the sentence to be imposed.248
2.

The Sentencing Reform Act’s Requirements

The Sentencing Reform Act contains several provisions that have governed and guided
the Commission’s development of the sentencing guidelines since their inception. The
Sentencing Reform Act mandates that the guidelines be “consistent with all pertinent provisions
of any Federal statute.”249 Accordingly, the Commission considers the same factors that
sentencing courts are required to consider under 18 U.S.C. § 3553(a).250 The Sentencing Reform
Act further directs that the guidelines are to take into account, to the degree relevant, certain
characteristics of the offense, including “the nature and degree of the harm caused by the
offense,” “the community view of the gravity of the offense,” “the public concern generated by
the offense,” “the deterrent effect a particular sentence may have on the commission of the
offense by others,” and “the current incidence of the offense in the community and in the Nation
as a whole.”251 The Commission uses these characteristics to measure the relative seriousness of

247

See USSG Ch. 1, Pt. A (citing Rita, 551 U.S. at 351).

248

See United States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006) (court must consider “any applicable departures”);
United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005) (court must consider “available departure authority”);
United States v. Jackson, 467 F.3d 834, 838 (3d Cir. 2006) (court’s correct Guideline calculation includes “ruling on
Guidelines departures”); United States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006) (departures “remain an
important part of sentencing even after Booker’); United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006)
(“Post-Booker case law recognizes three types of sentences under the new advisory sentencing regime: (1) a
sentence within a properly calculated Guideline range; (2) a sentence that includes an upward or downward
departure as allowed by the Guidelines, which sentence is also a Guideline sentence; or (3) a non-Guideline sentence
which is either higher or lower than the relevant Guideline sentence.” (internal footnote and citation omitted));
United States v. McBride, 434 F.3d 470, 476 (6th Cir. 2006) (district court “still required to consider . . . whether a
Chapter 5 departure is appropriate’); United States v. Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006) (“the district
court must decide if a traditional departure is appropriate,” and after that must consider a variance (internal
quotation omitted)); United States v. Robertson, 568 F.3d 1203, 1210 (10th Cir. 2009) (district courts must continue
to apply departures); United States v. Jordi, 418 F.3d 1212, 1215 (11th Cir. 2005) (stating that “the application of
the guidelines is not complete until the departures, if any, that are warranted are appropriately considered”). But see
United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005) (stating that departures are “obsolete”); United States v.
Mohamed, 459 F.3d 979, 987 (9th Cir. 2006) (“[W]e elect to review the district court’s application of the advisory
sentencing guidelines only insofar as they do not involve departures. To the extent that a district court has framed
its analysis in terms of downward or upward departure, we will treat such so-called departures as an exercise of
post-Booker discretion to sentence a defendant outside of the applicable guidelines range.”). Cf. United States v.
Guyton, 636 F.3d 316, 319 n.2 (7th Cir. 2011) (“In a strictly legal sense, the ‘obsolete’ description was accurate as
applied to appellate review of a sentence, but the ‘obsolete’ line of cases should not discourage district courts from
taking genuine guidance from all the Guidelines, including their departure provisions, as required by the amended
section 1B1.1”).
249

28 U.S.C. § 994(a) (as amended by the PROTECT Act, § 401, Pub. L. No. 108–21, 117 Stat. 650 (2003).

250

See 18 U.S.C. § 3553(a).

251

28 U.S.C. § 994(c).

40

the offense as compared to other offenses and to maintain proportionality throughout the
guidelines.252
The Sentencing Reform Act further instructs the Commission to use past sentencing
practices “as a starting point”253 for creating the initial guidelines, and the Commission continues
to use them in ongoing proportionality analyses. However, the Commission is not bound by past
practices. The Sentencing Reform Act states that “[t]he Commission shall not be bound by such
average sentences, and shall independently develop a sentencing range that is consistent with the
purposes of sentencing described in section 3553(a)(2) of title 18, United States Code.”254
The Sentencing Reform Act also instructs the Commission to take into account, to the
degree relevant, certain characteristics of the offender, including criminal history,255 while
assuring “that the guidelines and policy statements are entirely neutral as to the race, sex,
national origin, creed, and socioeconomic status of offenders.”256 Furthermore, “in
recommending a term of imprisonment or length of a term of imprisonment,” the Act requires
that the guidelines and policy statements reflect the “general inappropriateness of considering the
education, vocational skills, employment record, family ties and responsibilities, and community
ties of the defendant.”257

252

Among other requirements, the Sentencing Reform Act mandates that the Commission “take into account the
nature and capacity of the penal, correctional, and other facilities and services available” and formulate the
guidelines “to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal
prisons.” 28 U.S.C. § 994(g). The Commission must further “insure that the guidelines reflect the general
appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender
who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness
of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily
injury.” Id. § 994(j).

253

Id. § 994(m).

254

Id.

255

Over the course of its history, the Commission has ensured that the departure provisions set forth in the
Guidelines Manual are consistent with the directives in 28 U.S.C. § 994. Section 994 of title 28, United States
Code, instructs the Commission to assure the guidelines and policy statements reflect the general inappropriateness
of considering certain offender characteristics (for example “family ties and responsibilities”) in the guidelines, but
18 U.S.C. § 3553(a) can be read to direct the sentencing courts to consider those same characteristics. Accordingly,
judges often determine that the guidelines have not sufficiently addressed offender characteristics and impose a
sentence outside the guidelines. The Commission recommends that Congress clarify the relationship between these
two statutory provisions, specifically as they relate to certain offender characteristics in 28 U.S.C. § 994 and the
courts’ consideration of those same factors under 18 U.S.C. § 3553(a).
256

Id. § 994(d).

257

Id. § 994(e); see also id. § 994(k) (requiring “that the guidelines reflect the inappropriateness of imposing a
sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with
needed educational or vocational training, medical care, or other correctional treatment.”). See also Tapia v. United
States, 131 S. Ct. 2382 (2011) (holding that the Sentencing Reform Act precludes a sentencing court from imposing
or lengthening a prison term in order to promote a criminal defendant’s rehabilitation).

41

3.

Operation of the Sentencing Guidelines

In promulgating the initial set of guidelines, the Commission started with the premise that
a rational and just sentencing policy should treat similar offenders who commit similar offenses
equally.258 The Commission designed the guidelines to take into account both the seriousness of
the offense, including relevant offense characteristics, and important information about the
offender, such as the offender’s prior criminal record and role in the offense. Using this
information, the guidelines prescribe proportional individualized sentences within a sentencing
table consisting of 43 offense levels and six criminal history categories.
The offense level is determined based upon the elements of the offense committed by the
defendant, the particular harms associated with the defendant’s crime, and any other aggravating
or mitigating factors associated with the particular offense. The offense level increases based
upon the severity of the offense committed, and the number of identified harms associated with
the commission of the offense.
In determining which base offense level, specific offense characteristics, adjustments,
cross references among guidelines, or other special instructions apply, a court must consider all
“relevant conduct.” Relevant conduct includes “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully caused by the defendant.”259
Relevant conduct also includes “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity, that occurred during the commission of
the offense of conviction, in preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense.”260 In addition, “[w]hen the offense level is
determined largely on the basis of the total amount of harm or loss, the quantity of a substance
involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or
continuous in nature and the offense guideline is written to cover such behavior,”261 relevant
conduct includes “all acts and omissions [of the defendant or others in furtherance of the jointly
undertaken criminal activity] that were part of the same course of conduct or common scheme or
plan as the offense of conviction.”262 In this manner, the guidelines implement a “modified real
offense system.”263
Each guideline in Chapter Two of the Guidelines Manual contains a base offense level,
which is the starting point for measuring the seriousness of each particular offense. More serious
258

28 U.S.C. § 994(f) directs the Commission, in promulgating guidelines, to pay “particular attention to the
requirements of subsection 991(b)(1)(B) for providing certainty and fairness in sentencing and reducing unwarranted
disparities.”

259

See USSG §1B1.3(a)(1)(A) (Relevant Conduct (Factors that Determine the Guideline Range)).

260

See USSG §1B1.3(a)(1)(B).

261

See USSG §3D1.2(d) (Procedure for Determining Offense Level on Multiple Counts).

262

See USSG §1B1.3(a)(2).

263

1991 COMMISSION REPORT at iii.

42

types of crime have higher base offense levels; for example, trespass has a base offense level of
4,264 while kidnapping has a base offense level of 32.265
Most guidelines in Chapter Two include a number of specific offense characteristics that
increase or decrease the base offense level. For example, in drug trafficking cases, the base
offense level is increased if the offense involves violence or a firearm, among other things.266 In
contrast, the base offense level is decreased in drug trafficking cases if the defendant meets the
safety valve subdivision criteria.267 Additionally, a defendant who qualifies for a mitigating role
adjustment may receive an offense level reduction in some circumstances.268
Finally, a defendant’s offense level also may increase or decrease depending on whether
any adjustments in Chapter Three apply.269 Chapter Three contains adjustments generally
applicable across all offense types. Categories of adjustments include: victim-related
adjustments, the offender’s role in the offense, and obstruction of justice. For example, if the
offender knew that the victim was unusually vulnerable due to age or physical or mental
condition, the offense level is increased by two levels.270 The offense level is also increased by
two levels if the offender obstructed justice.271 However, if the offender was a minimal
participant in the offense, the offense level is decreased by four levels.272 Chapter Three also
includes rules for determining the guideline range when the defendant is convicted of multiple
counts and when a downward adjustment for the acceptance of responsibility applies.
Calculation of the guideline sentence also requires a determination of the defendant’s
criminal history.273 Chapter Four contains the rules that assign offenders to one of six criminal
history categories, with Criminal History Category I for offenders with the least serious prior
criminal records (including first-time offenders) and Criminal History Category VI for offenders
with the most extensive prior criminal records. An offender’s criminal history category is

264

See USSG §2B2.3(a) (Trespass).

265

See USSG §2A4.1(a) (Kidnapping, Abduction, Unlawful Restraint).

266

See USSG §2D1.1(Unlawful Manufacturing, Importing, Exporting or Trafficking (Including Possession with
Intent to Commit These Offenses); Attempt or Conspiracy).

267

Id.

268

See, e.g., USSG §2D1.1(a)(5), (b)(15).

269

See generally USSG Ch. 3 (Adjustments).

270

See USSG §3A1.1 (Hate Crime Motivation or Vulnerable Victim).

271

See USSG §3C1.1 (Obstruction or Impeding the Administration of Justice).

272

See USSG §3B1.2(a) (Mitigating Role).

273

See generally USSG Ch. 4 (Criminal History and Criminal Livelihood).

43

calculated by scoring prior sentences,274 according to the rules in USSG §§4A1.1 (Criminal
History Category) and 4A1.2 (Definitions and Instructions for Computing Criminal History).
A prior sentence of imprisonment275 exceeding one year and one month receives 3
points276 to the criminal history score if the sentence was “imposed within fifteen years of the
defendant’s commencement of the instant offense” or “resulted in the defendant being
incarcerated during any part of such fifteen-year period.”277 A prior sentence of imprisonment of
at least sixty days receives 2 points278 and any other prior sentence not otherwise counted
receives 1 point,279 if “imposed within ten years of the defendant’s commencement of the instant
offense.”280 “Any prior sentence not within the time periods specified above is not counted.”281
The guidelines also increase the criminal history points by 2 points if the “defendant committed
the instant offense while under a criminal justice sentence.”282
The guidelines include instructions for counting multiple prior sentences. Prior sentences
are counted separately if imposed for offenses that were separated by an intervening arrest. Prior
sentences not separated by an intervening arrest and resulting from offenses contained in the
same charging instrument or imposed on the same day are counted as a single sentence.
However, an offender’s criminal history score increases by 1 additional point for such a prior
sentence if a “crime of violence”283 was involved.284

274

The term “prior sentence” means any sentence previously imposed upon adjudication of guilt, whether by guilty
plea, trial, or plea of nolo contendere, for conduct not part of the instant offense. See USSG §4A1.2(a)(1).

275

The term “sentence of imprisonment” means a sentence of incarceration and refers to the maximum sentence
imposed. See USSG §4A1.2(b)(1).
276

See USSG §4A1.1(a).

277

See USSG §4A1.2(e)(1).

278

See USSG §4A1.1(b).

279

See USSG §4A1.1(c).

280

See USSG §4A1.2(e)(2).

281

See USSG §4A1.2(e)(3).

282

See USSG §4A1.1(d). Prior to November 1, 2010, the guidelines also added either 1 or 2 “recency” points to
the criminal history score “if the defendant committed the instant offense less than two years after release from
imprisonment on a sentence counted under [§4A1.1] subsection (a) or (b) or while in imprisonment or escape status
on such a sentence.” The Commission eliminated recency points from the criminal history score calculation, in part,
because its research indicated that consideration of recency only minimally improved the predictive ability of the
criminal history score. See USSG, App. C, amend. 742.

283

See USSG §§4A1.2(p), 4B1.2(a) for the definition of “crime of violence.”

284

See USSG §4A1.1(e). This section limits to 3 the number of additional points that may be added for such
sentences.

44

The guidelines also instruct that sentences for prior felony offenses are always counted
toward the criminal history score, if imposed within the prescribed time limits. Sentences for
misdemeanors and petty offenses may also be counted, unless excluded by the guideline rules.
For example, certain enumerated misdemeanor or petty offenses (e.g., careless or reckless
driving and leaving the scene of an accident) are counted only under specified circumstances.285
Certain other enumerated misdemeanor or petty offenses (e.g., fish and game violations and
hitchhiking) are never counted.286 Likewise, sentences for offenses committed by an offender
prior to the age of eighteen and military sentences are counted under specified circumstances.287
By contrast, foreign sentences, tribal court sentences, and expunged convictions are never
counted toward the criminal history score.288
Chapter Four also contains a special provision at USSG §4B1.1 (Career Offenders),
which implements the directive in the Sentencing Reform Act (28 U.S.C. § 994(h)) that requires
the Commission to provide a sentence “at or near the maximum term authorized” for certain
categories of violent and drug trafficking offenders with two or more prior offenses. Other
provisions apply to offenders who are subject to a statutorily enhanced sentence under 18 U.S.C.
§ 924(e),289 and to certain sex offenders.290
Once the offense level and criminal history are calculated, the applicable sentencing
range is determined by use of the sentencing table.291 As noted above, the sentencing table
contains 43 offense levels (located on the vertical axis) and six criminal history categories
(located on the horizontal axis), for a total of 258 cells. Each cell prescribes a sentencing range,
expressed in months of imprisonment. The sentencing ranges partially overlap so that the
difference between one level and another will not necessarily make a difference in the sentence
that the court imposes. Moreover, having this number of levels and cells enables proportional
285

See USSG §4A1.2(c)(1). “Sentences for the following prior offenses and offenses similar to them,
by whatever name they are known, are counted only if (A) the sentence was a term of probation of more than one
year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense.” The
subsection then lists 13 specific types of offenses.
286

See USSG §4A1.2(c)(2) for a complete list.

287

See USSG §4A1.2(d), (g).

288

See USSG §4A1.2(h), (i), (j). Because the criminal history score is largely based on the length of prior
sentences, rather than the nature of the prior offenses, offenders with different types of prior convictions may fall
within the same criminal history category. For example, an offender with a prior conviction for burglary who
received a 2 year sentence and has multiple prior tribal convictions has 3 criminal history points. See USSG
§4A1.1(a). An offender with a prior conviction for careless driving placed on probation for 2 years, who commits a
new offense while on probation also has 3 criminal history points: 1 point for the probationary sentence, see USSG
§4A1.1(a), and 2 additional points for committing a new offense while on probation, see USSG §4A1.1(d). Both of
these offenders would fall within Criminal History Category II. The guidelines provide for an upward or downward
departure to account for the inadequacy of a criminal history category. See USSG §4A1.3.
289

See USSG §4B1.4 (Armed Career Criminals).

290

See USSG §4B1.5 (Repeat and Dangerous Sex Offender Against Minors).

291

See USSG Ch. 5, Pt. A (Sentencing Table).

45

sentence increases. (Generally, a change of six levels roughly doubles the guideline sentence).
By statute, the maximum of any sentence range cannot exceed the minimum by more than the
greater of 25 percent or six months.292 Consistent with the “25 percent rule,” the Commission
chose to use 43 levels to “permit courts to exercise the greatest permissible range of sentencing
discretion.”293 Thus, the guidelines provide a “system of finely calibrated sentences.”294
Given the difficulty of establishing a single set of guidelines that encompasses the vast
range of human conduct potentially relevant to a sentencing decision, the guidelines provide for
departures from the sentencing range to account for aggravating or mitigating offense or offender
characteristics of a kind, or to a degree, not adequately taken into account by the Commission in
formulating the guidelines.295 The Commission has explained that it intends for courts “to treat
each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that
each guideline describes.”296 Thus, when the circumstances of a particular case make that case
“atypical,” the court may depart from the guideline range.297 The guidelines provide several,
non-exhaustive, factors that may warrant a departure,298 as well as several factors that may not
serve as grounds for departure.299 The departure framework, which exists separately from the
court’s authority to vary from the guidelines after Booker, is designed to permit the imposition of
“an appropriate sentence in the exceptional case in which mechanical application of the
guidelines would fail to achieve the statutory purposes and goals of sentencing.”300
Thus, after Booker, the sentencing court must engage in a three-step process to determine
the appropriate sentence in a particular case, considering: (1) the properly calculated guideline
range; (2) any grounds for departure from the guideline range; and then (3) the factors under
section 3553(a).301

292

See 28 U.S.C. § 994(b)(2).

293

See USSG Ch. 1, Pt. A at 11.

294

1991 Commission Report at iii.

295

See USSG Ch. 1, Pt. A at 6-7; USSG §5K2.0 (Grounds for Departure (Policy Statement)), comment. (backg’d).

296

See USSG Ch. 1, Pt. A at 6.

297

Id.

298

See USSG §§4A1.3 (Departures Based on Inadequacy of Criminal History Category); 5K1.1; 5K3.1 (Early
Disposition Programs); see also USSG Ch. 1, Pt. A at 6 (providing that, aside from enumerated prohibited factors,
“the Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the
guidelines, that could constitute grounds for departure in an unusual case”).

299

See USSG Ch. 1, Pt. A at 6; see also USSG §§5H1.10 (Race, Sex, National Origin, Creed, Religion, SocioEconomic Status), 5H1.12 (Lack of Guidance as a Youth and Similar Circumstances), 5K2.12 (Coercion and
Duress).

300

See USSG §5K2.0, comment. (backg’d); USSG §1B1.1.

301

See Rita, 551 U.S. at 351.

46

4.

Amending the Guidelines

The Sentencing Reform Act contemplated that guideline development would be an
ongoing process that would evolve over time as continuing research, experience, analysis, and
new criminal statutes warranted modifications and revisions to the guidelines.302 To that end, the
Act directs the Commission to “periodically . . . review and revise, in consideration of comments
and data coming to its attention, the guidelines . . . .”303 As of November 2010, the Commission
had promulgated 747 amendments to the sentencing guidelines and policy related statements.304
The Sentencing Reform Act establishes a process by which the Commission promulgates
amendments to the federal sentencing guidelines and policy statements. In particular, the Act
requires the Commission to comply with the notice and comment provisions of the
Administrative Procedure Act at section 553 of title 5, United States Code,305 and the
Commission has adopted administrative Rules of Practice and Procedure that adhere to these
statutory procedural requirements and guide the guideline amendment cycle.306
Consistent with these procedural requirements, before promulgating a guideline
amendment, the Commission “consult[s] with authorities on, and individuals and institutional
representatives of, various aspects of the Federal criminal justice system,”307 by conducting
public hearings, publishing proposed amendments for comment in the Federal Register,
consulting with advisory groups, and considering public comment and informal input. As
required by the Sentencing Reform Act, the Commission consults with the United States
Probation System, the Bureau of Prisons, the Judicial Conference of the United States, the
Criminal Division of the United States Department of Justice, and a representative of the Federal
Public Defenders. During its consideration of proposed amendments, the Commission studies
relevant data, reports, and other information compiled by the Commission staff (which may

302

See USSG Ch. 1, Pt. A at 12.

303

28 U.S.C. § 994(o).

304

See USSG App. C.

305

28 U.S.C. § 994(x).

306

See, e.g., Commission Rules of Practice and Procedure (2007) [hereinafter Commission Rules], Rule 2.2–
Voting Rules for Action by the Commission (requiring the affirmative vote of at least four members at a public
meeting to promulgate guidelines, policy statements, official commentary, and amendments thereto); Rule 3.2–
Public Meetings (stating that, to the extent practicable, the Commission shall issue a public notice of any public
meeting); Rule 3.4– Public Hearings (allowing for public hearings “on any matter involving the promulgation of
sentencing guidelines or any other matter affecting the Commission’s business”); Rule 4.1– Promulgation of
Amendments (setting forth the amendment process pursuant to 28 U.S.C. § 994(p)); Rule 4.4– Federal Register
Notice of Proposed Amendments (stating that “[a] vote to publish a proposed amendment to a guideline, policy
statement, or official commentary in the Federal Register shall be deemed to be a request for public comment”);
Rule 5.2– Notice of Priorities (requiring the Commission to “publish annually in the Federal Register, and make
available to the public, a notice of the tentative priorities for future Commission inquiry and possible action,
including areas for possible amendments to guidelines, policy statements, and commentary”).
307

28 U.S.C. § 994(o).

47

include sentencing data, case-law analyses, literature reviews, surveys of state laws, and other
relevant information).
The amendment process typically begins in the summer, when the Commission publishes
for comment a notice of proposed policy priorities, followed by the publication of final policy
priorities in the fall. Typically in December or January, the Commission formally requests
comment on proposed amendments and issues for comment, usually with a 60-day comment
period. In addition to soliciting written public comment, the Commission conducts at least one
public hearing, usually in February or March, regarding proposed amendments. After the close
of the public comment period, the Commission refines the proposed amendments in light of
comments and testimony it receives. Promulgation of guidelines, policy statements, official
commentary, and amendments thereto requires the affirmative vote of at least four members of
the Commission at a public meeting.308 The vote to promulgate proposed amendments typically
is held at a public meeting in April. Through this administrative process, the Commission
considers the various substantive factors set forth throughout the Sentencing Reform Act.
The guideline amendment process culminates with the submission of promulgated
amendments to Congress for its review. The Sentencing Reform Act authorizes the
Commission, at or after the beginning of a new session of Congress, but not later than the first
day of May of each year, to submit to Congress amendments to the guidelines, which must
include a “statement of reasons therefor.”309 Amendments to the guidelines become effective on
a date specified by the Commission, which may not be earlier than 180 days after submission to
Congress or later than the first day of November in the year in which the amendments were
submitted.310 During the pendency of the amendments, Congress may modify or reject
submitted amendments. If Congress does not act, the amendments take effect as submitted.311
In addition to its power to disapprove guideline amendments, Congress retains the ability
to influence federal sentencing policy by enacting directives to the Commission. These
directives may be general or specific. When Congress enacts such a provision, the Commission
is obligated to implement the directive in a manner consistent with the legislation. As the
Supreme Court stated in United States v. LaBonte, “Congress has delegated to the Commission

308

28 U.S.C. § 994(a).

309

Id. § 994(p). Amendments to policy statements and commentary may be promulgated and put into effect at any
time. However, to the extent practicable, the Commission endeavors to include amendments to policy statements
and commentary in any submission of guideline amendments to Congress. Commission Rules, Rule 4.1–
Promulgation of Amendments.

310

28 U.S.C. § 994(p).

311

Id. The Sentencing Reform Act also authorized the Commission to decide whether amendments that reduce “the
term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses”
should be applied retroactively. See 28 U.S.C. § 994(u). See also Dillon v. United States, 130 S. Ct. 2683 (2010)
(holding that Booker did not apply to proceedings under 18 U.S.C. § 3582(c)(2) and that USSG §1B1.10 (Reduction
in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) is binding on courts
reducing sentences under that provision.).

48

significant discretion in formulating guidelines . . . . Broad as that discretion may be, however, it
must bow to the specific directives of Congress.”312
In responding to directives, the Commission follows the same procedure outlined above
for other amendments, unless the directive provides for an alternative procedure (i.e.,
“emergency amendment authority”). Nevertheless, using the reasoning of the Supreme Court in
Kimbrough,313 courts are more closely examining sentencing guidelines developed in response to
“congressional directives”314 and using policy disagreements with the underlying rationale for
the guideline as a basis for imposing a sentence below the guidelines range. The Supreme Court
based its holding in Kimbrough in part on the assertion that in setting the crack cocaine
guidelines, the Commission abandoned what the Court perceived as its characteristic institutional
role. 315
Some courts have read Kimbrough and Spears to have established a “new paradigm” in
which district courts are permitted “to disagree categorically with [congressional] directives in
providing an individual sentence.”316 They read Kimbrough to instruct “sentencing courts to
give less deference to guidelines that are not the product of the Commission acting in ‘its
characteristic institutional role,’ in which it typically implements guidelines only after taking into
account ‘empirical data and national experience.’”317 Other circuits disagree. 318 Thus the
circuits are divided on the question whether guidelines promulgated in response to a
312

520 U.S. 751, 757 (1997) (quotation omitted).

313

552 U.S 85 (2007).

314

The Sentencing Reform Act contained a number of congressional directives to the Commission about how it
should formulate and structure the federal sentencing guidelines. Since 1984, Congress has directed the
Commission to act in the areas of sentencing well over 100 times.

315

Kimbrough, 552 U.S at 89. In Spears v. United States, 555 U.S. 261 (2009) (per curiam), the Court (in a 5-4 per
curiam opinion) held that district courts may categorically disagree with the guidelines, at least with respect to the
drug guidelines for crack cocaine offenses. Further explaining its holding in Kimbrough, the Court stated “[t]hat
was indeed the point of Kimbrough: a recognition of district courts’ authority to vary from the crack cocaine
Guidelines based on policy disagreement with them, and not simply based on an individualized determination that
they yield an excessive sentence in a particular case.” Id. at 264. Spears clarified “that district courts are entitled to
reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those
Guidelines.” Id. at 265-66.
316

United States v. Reyes-Hernandez, 624 F.3d 405, 417-418 (7th Cir. 2010) (“Congressional ‘directives’ to the
Sentencing Commission are unlike statutes in that they are not equally binding on sentencing courts”).

317

Id. at 418. See also United States v. Rodriguez, 527 F.3d 221, 227 (1st Cir. 2008) (“[T]he fast-track departure
scheme does not ‘exemplify the [Sentencing] Commission's exercise of its characteristic institutional role.’[] In
other words, the Commission has ‘not take [n] account of empirical data and national experience’ in formulating
them. [] Thus, guidelines and policy statements embodying these judgments deserve less deference than the
sentencing guidelines normally attract.”) (citations omitted).

318

United States v. Arrelucea-Zamudio, 581 F.3d 142, 149-150 (3d Cir. 2009) (collecting cases and rejecting the
approach of the Fifth, Ninth, and Eleventh Circuits, which have concluded that district courts may not disagree with
congressional policy, specifically with respect to varying due to perceived fast-track disparity, and stating that “the
attempt to distinguish fast-track programs from the sentencing guidance provided in Kimbrough, and constrain a
district court's sentencing discretion solely on the basis of a congressional policy argument, is unpersuasive.”).

49

congressional directive to the Commission are entitled to less deference than guidelines
promulgated pursuant to what the Supreme Court has described as the Commission’s
“characteristic institutional role.”319
5.

Constitutionality of Mandatory Minimum Penalties

The Supreme Court’s decisions have drawn a distinction between the “elements of a
crime,” which “must be charged in an indictment and proved to a jury beyond a reasonable
doubt,” and “sentencing factors,” which “can be proved to a judge at sentencing by a
preponderance of the evidence.”320 Congress may prescribe sentencing factors that guide or
confine a judge’s discretion in sentencing an offender within the range prescribed by statute, but
“judge-found sentencing factors cannot increase the maximum sentence a defendant might
otherwise receive based purely on the facts found by the jury [or admitted by the defendant].”321
For some offenses, a mandatory minimum penalty may apply because it is the only
specified penalty for the defendant’s offense of conviction. For example, convictions for the
offenses of aggravated identity theft and receipt of child pornography always carry a mandatory
minimum penalty (two and five years of imprisonment, respectively).322 In those circumstances,
the facts that trigger the mandatory minimum penalty are the same facts that constitute the crime.
Accordingly, each fact must be alleged in the indictment and proven to a jury beyond a
reasonable doubt.323
In other circumstances, the facts that trigger the mandatory minimum penalty may also
increase the statutory maximum sentence, thereby implicating the Supreme Court’s decision in
Apprendi v. New Jersey.324 The Court held in Apprendi that the Sixth Amendment requires that
319

The Commission promulgates all guidelines amendments, whether in response to a congressional directive or on
its own initiative, in accordance with requirements contained in the Sentencing Reform Act, 28 U.S.C. §§ 991–995.
Accordingly, the Commission considers, among other factors, “comments and data coming to its attention,”
circumstances which mitigate or aggravate the seriousness of the offense, the nature and degree of the harm caused
by the offense, the community view of the gravity of the offense, the public concern generated by the offense, and
how often the offense occurs. 28 U.S.C. § 994. Furthermore, the Commission “consults with authorities on, and
individual and institutional representatives of, various aspects of the Federal criminal justice system,” including the
Judicial Conference of the United States Courts, the Department of Justice, representatives of the Federal Public
Defenders, probation officers, and the Commission’s advisory groups, and follows the notice and comment
procedural requirements set forth at section 553 of title 5, United States Code. 28 U.S.C. §§ 994(o), (x).

320

United States v. O’Brien, 130 S. Ct. 2169, 2174 (2010).

321

Id. at 2175–76. For a more detailed discussion of the case law concerning judicially-determined sentencing
factors, see infra Appendix E(A)(1) of this Report.

322

See 18 U.S.C. §§ 1028A (aggravated identity theft); 2252A(a)(2) & (b)(1) (receipt of child pornography).

323

See Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998) (“An indictment must set forth each element
of the crime that it charges.”); In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.”).
324

530 U.S. 466 (2000).

50

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”325 For example, drug trafficking offenses committed in violation of 21 U.S.C.
§ 841(b)(1)(C) have no mandatory minimum penalty and a statutory maximum penalty of 20
years of imprisonment.326 The type and quantity of drugs involved in the offense, however, can
trigger a mandatory minimum penalty of five or ten years of imprisonment, while at the same
time increasing the statutory maximum penalty to 40 years or life imprisonment.327 Courts have
uniformly held that the type and quantity of drugs must be charged in the indictment and proven
to a jury beyond a reasonable doubt when the defendant receives a sentence that is higher than
the otherwise applicable statutory maximum penalty.328 However, the circuit courts of appeals
disagree as to whether those facts must be alleged in the indictment and proven to a jury beyond
a reasonable doubt when they trigger a mandatory minimum penalty, yet the offender receives a
sentence that is still within the otherwise applicable statutory maximum penalty.329
Facts requiring the imposition of a mandatory minimum penalty within the sentencing
range otherwise available to the court are not necessarily subject to the Constitution’s indictment,
proof, and jury requirements. The Supreme Court explained in Harris v. United States that:
[t]hose facts setting the outer limits of a sentence, and of the judicial power to impose it,
are the elements of the crime for the purposes of the constitutional analysis. Within the
range authorized by the jury’s verdict, however, the political system may channel judicial
discretion – and rely upon judicial expertise – by requiring defendants to serve minimum
terms after judges make certain factual findings.330

325

Id. at 490.

326

See 21 U.S.C. § 841(b)(1)(C).

327

See 21 U.S.C. § 841(b)(1)(A) & (b)(1)(B).

328

See, e.g., United States v. Promise, 255 F.3d 150, 156-157 (4th Cir. 2001) (en banc) (“Accordingly, Apprendi
dictates that in order to authorize the imposition of a sentence exceeding the maximum allowable without a jury
finding of a specific threshold quantity, the specific threshold quantity must be treated as an element of an
aggravated drug trafficking offense, i.e., charged in the indictment and proved to the jury beyond a reasonable
doubt.”) (collecting cases).

329

Compare, e.g., United States v. Gonzales, 420 F.3d 111, 129 (2d Cir. 2005) (“The Apprendi rule applies to the
resolution of any fact that would substitute an increased sentencing range for the one otherwise applicable to the
case. Because mandatory minimums operate in tandem with increased maximums in § 841(b)(1)(A) and –(b)(1)(B)
to create sentencing ranges that raise the limit of the possible federal sentence, drug quantity must be deemed an
element for all purposes relevant to the application of these increased ranges.” (citation and quotation marks
omitted)), with United States v. Copeland, 321 F.3d 582, 603 (6th Cir. 2003) (“Apprendi said that any fact extending
the defendant’s sentence beyond the maximum authorized by the jury’s verdict would have been considered an
element of the aggravating crime – and thus the domain of the jury – by those who framed the Bill of Rights. The
same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the
statutory maximum), for the jury’s verdict has authorized the judge to impose the minimum with or without the
finding. . . . Thus, where a defendant is made subject to a higher range of punishment under §§ 841(b)(1)(A) and (B)
but is nonetheless sentenced within the confines of § 841(b)(1)(C), his rights under Apprendi are not violated.”).

330

536 U.S. 545, 567 (2002).

51

The Court held in Harris that the seven-year mandatory minimum penalty for “brandishing” a
firearm in violation of 18 U.S.C. § 924(c) need not be charged in the indictment nor proven to a
jury beyond a reasonable doubt. Although the fact that the firearm was “brandished” increases
the mandatory minimum penalty from five years to seven years, the Court concluded, it is a
sentencing factor because it merely confines the court’s discretion within the otherwise
applicable statutory maximum penalty.331
Nonetheless, even facts that may trigger mandatory minimum penalties without
increasing the statutory maximum may fall within the Constitution’s indictment, proof, and jury
protections as a matter of legislative intent. The Supreme Court recently explained in United
States v. O’Brien that, subject to constitutional limitations, “whether a given fact is an element of
the crime itself or a sentencing factor is a question for Congress.”332 When Congress is not
explicit in its characterization, “courts look to the provisions and the framework of the statute to
determine whether a fact is an element or a sentencing factor.”333 O’Brien held that Congress
intended the finding whether the offense involved a “machinegun,” triggering a 30-year
mandatory minimum penalty, to be an element of the offense, not a sentencing factor.334
Finally, the fact of a prior conviction may trigger a mandatory minimum penalty,
regardless of its effect on the statutory maximum penalty, without implicating the Constitution’s
indictment, proof, and jury protections. The Supreme Court has held that the fact of a prior
conviction may be found by the judge at sentencing even if it increases the statutory maximum
sentence.335 The Court has described the fact of a prior conviction as a “narrow exception” to its
general rule that any fact that increases the prescribed maximum penalty must be alleged in the
indictment and proven to a jury beyond a reasonable doubt.336 Accordingly, where the
331

See id. at 568. The Supreme Court has not revisited Harris’s Sixth Amendment holding after Blakely v.
Washington, 542 U.S. 296 (2004) and Booker, although some federal courts have noted Harris’s apparent tension
with those later decisions. See United States v. Jones, 418 F.3d 726, 732 (7th Cir. 2005) (observing that “there may
be some tension between Booker and Harris”); United States v. Dare, 425 F.3d 634, 641 (9th Cir. 2005) (“We agree
that Harris is difficult to reconcile with the Supreme Court’s recent Sixth Amendment jurisprudence, but Harris has
not been overruled.”). Nonetheless, the circuit courts of appeals have uniformly continued to follow Harris,
concluding that the decision has not yet been overruled by the Supreme Court. See, e.g., United States v.
Thompson, 515 F.3d 556, 565 (6th Cir. 2008) (collecting cases). Circuit courts also hold that Blakely and Booker
have no application to mandatory minimum sentencing provisions. See, e.g., United States v. Harris, 447 F.3d 1300,
1307 (10th Cir. 2006) (“Booker . . . does not apply to statutory minimum sentences.”); United States v. Duncan, 413
F.3d 680, 683 (7th Cir. 2005) (“Put simply, Booker and Blakely do not affect the imposition of statutory minimum
sentences.”).
332

O’Brien, 130 S. Ct. at 2175. See infra Appendix E, at E-5 of this Report.

333

See id.

334

See id. at 2180. In so holding, the Court reaffirmed its pre-Apprendi decision in Castillo v. United States, 530
U.S. 120 (2000), and utilized five-factors articulated in Castillo for assessing congressional intent: (1) language and
structure; (2) tradition, (3) risk of unfairness, (4) severity of the sentence; and (5) legislative history. See O’Brien,
130 S. Ct. at 2175, 2180. See infra Appendix E, at E-5.

335

See Almendarez-Torres, 523 U.S. at 239.

336

See Apprendi, 530 U.S. at 489-90.

52

defendant’s recidivism or criminal history triggers a mandatory minimum penalty, the prior
conviction may be found by the sentencing judge by a preponderance of the evidence.337
C.

INCORPORATION OF MANDATORY MINIMUM PENALTIES INTO THE GUIDELINES

Congress charged the Commission with promulgating guidelines that are “consistent with
all pertinent provisions” of federal law338 and with providing sentencing ranges that are
“consistent with all pertinent provisions of title 18, United States Code.”339 To that end, the
Commission has incorporated mandatory minimum penalties into the guidelines since their
inception, and has continued to incorporate new mandatory minimum penalties as enacted by
Congress.340
The Commission generally has established guideline ranges that are slightly above the
mandatory minimum penalty for offenders convicted of offenses carrying a mandatory minimum
penalty, but its methods of incorporating mandatory minimum penalties into the guidelines have
varied over time, with the benefit of the Commission’s continuing research, experience, and
analysis.341 The Commission historically has achieved this policy by setting a base offense level
for Criminal History Category I offenders that corresponds to the first guidelines range on the
sentencing table with a minimum guideline range in excess of the mandatory minimum.
337

See, e.g., United States v. Smith, 390 F.3d 661, 666 (9th Cir. 2004) (concluding that prior convictions used to
enhance a defendant’s sentence pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e), need not be charged
in the indictment or found by a jury); United States v. Mata, 491 F.3d 237, 245 (5th Cir. 2007) (rejecting the
defendant’s argument that 21 U.S.C. §§ 841 and 851 are unconstitutional because they do not require the factual
finding of a prior conviction that increases the statutory maximum penalty to be found by a jury beyond a reasonable
doubt). Section 851 prescribes statutory procedural protections, beyond what the Constitution requires, for
defendants in drug trafficking cases whose sentences are enhanced based on prior convictions. See 21 U.S.C. § 851;
cf. United States v. Espinal, 634 F.3d 655, 664-65 n.5 (2d Cir. 2011) (comparing the Constitutional limitations
placed on the enhancement of sentences using prior convictions with the protections afforded by section 851).

338

28 U.S.C. § 994(a).

339

28 U.S.C. § 994(b).

340

Incorporating mandatory minimum penalties into the guidelines posed a “substantial challenge” to the drafting of
initial sentencing guidelines. “[D]rafting of guidelines for offenses having a mandatory minimum sentence requires
a determination as to the intended ‘heartland’ covered by the mandatory minimum statute.” “If the heartland . . . is
viewed as applying to the more culpable defendants, and the guidelines are drafted in accord with this view, the
question arises as to how the guidelines should address less culpable defendants. If lower guidelines are drafted to
cover defendants with lesser roles, guidelines technically will be incompatible with the mandatory minimum
sentences that literally apply to such conduct.” “If, on the other hand, the guidelines are drafted so that the guideline
range associated with the mandatory minimum sentence is set for the least culpable first offenders who could be
prosecuted under the statute, the concern of proportionality can only be met by substantially escalating the penalties
for more culpable defendants. . . .” 1991 COMMISSION REPORT ON THE OPERATION OF THE GUIDELINES SYSTEM at
29.
341

See USSG Ch. 1, Pt. A at 2. (“The Commission . . . views the guideline-writing process as evolutionary. It
expects, and the governing statute anticipates, that continuing research, experience, and analysis will result in
modifications and revisions to the guidelines through submission of amendments to Congress.”); id. at 12. (“[The
Commission’s] mandate rested on congressional awareness that sentencing is a dynamic field that requires
continuing review by an expert body to revise sentencing policies, in light of application experience, as new criminal
statutes are enacted, as more is learned about what motivates and controls criminal behavior.”).

53

Therefore, the base offense level, before any enhancements, adjustments, or consideration of
criminal history, produces a guideline range that is above the applicable mandatory minimum
penalty.
This general policy is most apparent in the guideline applicable to drug offenses, §2D1.1.
The statutes applicable to drug trafficking offenses carry mandatory minimum penalties, usually
five or 10 years in length, based on the type and quantity of drugs involved in the offense.
Similarly, the Drug Quantity Table at §2D1.1(c) establishes base offense levels for drug
trafficking offenders using the quantity and type of drugs involved in the offense. The
Commission developed the Drug Quantity Table to ensure that the quantities triggering a
mandatory minimum penalty carry a base offense level equal to the first range on the sentencing
table that exceeds the mandatory minimum (i.e., levels 26 and 32, respectively, for the
commonly applied five- and ten-year mandatory minimums). For example, trafficking in at least
500 grams of powder cocaine carries a five-year mandatory minimum pursuant to 21 U.S.C.
§ 841(b)(1)(B), and the guidelines assign a base offense level of 26, yielding a guideline range
just above the mandatory minimum for offenders in Criminal History Category I of 63 to 78
months. For quantities that are above or below the amounts that trigger the mandatory minimum
penalty, the Drug Quantity Table extrapolates upward and downward from the mandatory
minimum thresholds to set guidelines sentencing ranges for all drug quantities.
The Commission set the base offense levels at guideline ranges slightly higher than the
mandatory minimum levels to permit some downward adjustments for defendants who plead
guilty or otherwise cooperate with authorities.342 The ranges therefore fulfill the Commission’s
statutory mandate to “assure that the guidelines reflect the general appropriateness of imposing a
lower sentence that would otherwise be imposed, including a sentence that is lower than that
established by statute as a minimum sentence, to take into account a defendant’s substantial
assistance . . . .”343 Setting base offense levels at or just above the mandatory minimum penalty
also fulfills the Commission’s statutory mandate to consider “the community view of the gravity
of the offense,”344 in that mandatory minimum penalties reflect Congress’s expression of the
community view of the gravity of the offense.
In 2007, the Commission amended the Drug Quantity Table for offenses involving crack
cocaine so that base offense levels 24 and 30, rather than 26 and 32, corresponded with the five
and 10-year mandatory minimum penalties.345 For offenders in Criminal History Category I,
those base offense levels produced ranges with low ends that were below the mandatory
minimum term of imprisonment: 51 to 63 months at level 24, corresponding to the five-year
342

See U.S. SENT’G COMM’N, SPECIAL REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING POLICY 148
(1995).

343

28 U.S.C. § 994(n).

344

See 28 U.S.C. § 994(c)(4).

345

See USSG App. C, amend. 706 (effective Nov. 1, 2007) & amend. 711 (effective Nov. 1, 2007). The
Commission amended the Drug Quantity Table for crack cocaine offenses as “an interim solution to some of the
problems associated with the 100-to-1 drug quantity ratio. It is neither a permanent nor complete solution to those
problems.” USSG App. C., Amendment 711.

54

mandatory minimum, and 97 to 121 months at level 30, corresponding to the ten-year mandatory
minimum following this amendment. The Commission observed that the lower base offense
levels did not appear to affect crack cocaine offenders’ guilty plea and cooperation rates–the
rates were the same before and after the 2007 amendment.346 The Commission has subsequently
moved the levels corresponding to the crack cocaine mandatory minimum penalties back to 26
and 32, in light of the Fair Sentencing Act of 2010’s changes to the mandatory minimum drug
quantity thresholds.347
As Congress has enacted new mandatory minimum penalties, the Commission has drawn
on its experience with particular offenses and related guidelines to incorporate the new penalties.
For example, in the PROTECT Act, Congress established a new mandatory minimum of five
years of imprisonment for existing child pornography trafficking and receipt offenses committed
in violation of 18 U.S.C. §§ 2252 and 2252A.348 In light of the new mandatory minimum
penalty, the Commission established a base offense level of 22 for those offenses, even though it
produced a guideline range entirely below the mandatory minimum penalty for offenders in
Criminal History Category I. The Commission modified its general approach for this mandatory
minimum penalty because experience and data showed that several existing enhancements (e.g.,
use of a computer, material involving children under 12 years of age, number of images) in the
applicable guideline, §2G2.2, apply in almost every case.349 Thus, the Commission set the base
offense level at 22 with knowledge that the Chapter Two calculations would lead to a range
slightly above the mandatory minimum penalty for nearly all offenders thereby maintaining a
consistent approach for determining sentencing ranges.350
Some commonly applied mandatory minimum penalties require consecutive terms of
imprisonment in addition to the sentence imposed on an underlying offense. To ensure the
guidelines’ consistency with federal law, the Commission has incorporated those penalties by
specifying that the guideline sentence for that count is the minimum term required by the statute.
For example, under 18 U.S.C. § 924(c)(1), an offender is subject to consecutive mandatory
minimum terms of imprisonment varying from five years to life for conduct involving a firearm
during and in relation to a crime of violence or drug trafficking crime. USSG §2K2.4(b)
provides that for an offender convicted of violating section 924(c), “the guideline sentence [for
346

In the fiscal year before the 2007 amendment took effect, the plea rate for crack cocaine offenders was 93.1%.
In the two fiscal years after the 2007 amendment took effect, the plea rates for such offenders were 95.2% and
94.0%, respectively. In addition, the substantial assistance rate for crack cocaine offenders was 27.8% in the fiscal
year before the 2007 amendment took effect and 25.3% and 25.6% in the two fiscal years after the 2007 amendment
took effect.
347

In 2010, Congress enacted the Fair Sentencing Act, which reduced the ratio between crack and powder cocaine
from 100-to 1 to 18-to-1. The Commission’s emergency amendment implementing the Fair Sentencing Act
“conform[ed] the guideline penalty structure for crack cocaine offense to the approach followed for other drugs, i.e.,
the base offense levels for crack cocaine are set on the Drug Quantity Table so that the statutory minimum penalties
correspond to levels 26 and 32.” Commission, Supplement to the 2010 Guidelines Manual 43 (2010).

348

See PROTECT Act, § 103.

349

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

350

See id.

55

that count] is the minimum term of imprisonment required by statute.”351 Guidelines applicable
to other offenses carrying a consecutive mandatory penalty, such as aggravated failure to register
as a sex offender352 and aggravated identity theft353 operate similarly.354
For some offenses carrying a mandatory minimum penalty the Commission does not
reference those offenses to any particular guideline in Appendix A of the Guidelines Manual,
often because the mandatory minimum penalty is too infrequently applied to warrant a specific
guideline.355 In such cases, and to ensure the guidelines’ consistency with federal law, the
Commission has promulgated guideline provisions to ensure that the guideline range at least
reaches any applicable mandatory minimum penalty. USSG §5G1.1 provides that “[w]here a
statutorily required minimum sentence is greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall be the guideline sentence.”356 Moreover,
the Commission has promulgated guidelines to ensure that no portion of an offender’s guideline
range falls below an applicable mandatory minimum penalty. Thus, where some but not all of
the guideline range falls below the mandatory minimum penalty, the mandatory minimum
penalty becomes the bottom of the guideline range.357
As discussed in Chapter 2, supra, the guidelines also incorporate the two methods for
relief from an applicable mandatory minimum: substantial assistance and the safety valve.
USSG §5K1.1, consistent with the requirements of the Commission’s organic statute,358
authorizes a departure from the guideline range if the offender has provided substantial
assistance to law enforcement, just as 18 U.S.C. § 3553(e) authorizes a sentence below a
statutory mandatory minimum for substantial assistance. The complementary provisions operate
to give the offender the full benefit of substantial assistance cooperation. For defendants who
qualify for relief from the mandatory minimum penalty pursuant to the statutory safety valve, 18
U.S.C. § 3553(f), the guideline at §5C1.2 directs the court to “impose a sentence in accordance

351

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

352

18 U.S.C. § 2250(c).

353

18 U.S.C. § 1028A.

354

See USSG §§2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender) & 2B1.6 (Aggravated
Identity Theft).

355

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

356

USSG §5G1.1(b) (Sentencing on a Single Count of Conviction).

357

See USSG §5G1.1(c)(2) (“In any other case, the sentence may be imposed at any point within the applicable
guideline range, provided that the sentence . . . is not less than any statutorily required minimum sentence.”).
358

See 28 U.S.C. § 994(n) (“The Commission shall assure that the guidelines reflect the general appropriateness of
imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established
by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or
prosecution of another person who has committed an offense.”).

56

with the applicable guidelines without regard to any statutory minimum sentence.”359 USSG
§2D1.1 also provides for a two-level decrease if the defendant meets the safety valve subdivision
criteria listed at §5C1.2.360
D.

COMPARING THE GUIDELINES AND MANDATORY MINIMUM PENALTIES

The guidelines and mandatory minimum penalties both determine sentences by
referencing certain facts in order to measure the severity of the offense and the culpability of the
offender. Often, the guidelines and mandatory minimum penalties consider the same facts to be
aggravating circumstances that warrant lengthier sentences, so that similar conduct produces
higher penalties under both. For the most common offense types, these facts include the type
and quantity of a controlled substance, the use of a firearm in connection with a violent crime or
drug trafficking offense, and an offender’s criminal history. In this regard, the guidelines and
mandatory minimum penalties are broadly consistent with each other.
There are significant structural differences, however, in how the guidelines and
mandatory minimum penalties use these aggravating facts to determine the appropriate sentence.
The guidelines employ a modified real offense approach that considers each aggravating fact in
conjunction with other relevant offense- and offender-specific facts to produce a sentencing
range. The guidelines are designed to be flexible and therefore assign varying weight to
aggravating and mitigating factors in the context of the offense and the guidelines as a whole.
Mandatory minimum penalties, by contrast, rely on the presence of a narrow set of facts,
(or even just a single fact), to establish minimum sentences that may be much longer than they
otherwise would be without the presence of those facts. The application of a mandatory
minimum depends solely on whether the statutorily enumerated factors are proven or agreed to,
without regard to other aggravating or mitigating facts. The structural differences between the
guidelines and mandatory minimum penalties result in different outcomes in terms of both
uniformity and proportionality.
In comparing the guidelines to mandatory minimum penalties, it is useful to keep in mind
that the guideline sentencing table is structured so that a two-level increase to the offense level
represents a 25 percent increase to the otherwise applicable guideline range. A four-level
increase therefore represents a 50 percent increase to the otherwise applicable guideline range,
and a six-level increase roughly doubles the otherwise applicable guideline range.
One illustration of mandatory minimum penalties and the guidelines enhancing sentences
based on similar aggravating facts is the treatment of offenders who illegally possess firearms.
An offender who possesses a firearm after having received three convictions of a violent felony
or a serious drug offense is subject to a mandatory minimum penalty of 15 years of

359

See USSG §5C1.2(a). For offenders whose mandatory minimums were at least five years in length, the new
offense level cannot be lower than 17. See USSG §5C1.2(b).

360

See USSG §2D1.1(b)(16).

57

imprisonment, pursuant to the Armed Career Criminal Act (ACCA).361 Similarly, the applicable
guideline, §2K2.1, assigns a base offense level of 20 if the offender had one prior felony
conviction of either a crime of violence or a controlled substance offense. Section 2K2.1 assigns
a base offense level of 24 if the offender had two prior such convictions, representing a 50
percent increase in the otherwise applicable guideline range. The guideline does not provide any
additional offense level enhancements for a third such prior conviction.362 Even assuming that
an offender with three such prior convictions is in the highest available criminal history category
(VI), a base offense level of 24 yields a guideline range of 100 to 125 months – well below the
15-year mandatory minimum penalty. The guidelines nonetheless account for the 15-year
mandatory minimum penalty at §4B1.4 (Armed Career Criminal), which establishes increased
offense levels and criminal history categories for offenders who qualify as armed career
criminals under ACCA.
The guidelines also provide for incremental sentence increases based on other
aggravating facts that the mandatory minimum penalty does not consider. In addition to
enhancements for prior convictions, the guidelines provide enhancements for felon-in-possession
offenses if the firearm possessed was particularly dangerous (e.g., a machinegun, a firearm
equipped with a silencer, or a short-barrel shotgun), was stolen, had an obliterated serial number,
or was a destructive device. The guidelines provide further enhancements, ranging from two- to
10-levels, depending on the number of firearms involved in the offense.363 These additional
aggravating facts are highly relevant to determining the sentence under the guidelines, but they
are not material to the application of the mandatory minimum penalty.
By drawing a broader range of distinctions among offenders, the guidelines’ flexibility
increases the likelihood that similar offenders will receive similar sentences and that dissimilar
offenders will receive different sentences. The guidelines measure offense severity using a
variety of facts and, as a result, draw more precise distinctions among offenders. Mandatory
minimum penalties are unable to draw these fine distinctions, potentially increasing the
likelihood that dissimilar offenders will receive similar sentences because they apply broadly to
cases that, aside from a few facts, may otherwise involve very different offenders.
These differences are apparent in drug trafficking cases, where both the guidelines and
the applicable mandatory minimum penalties rely on drug type and quantity to determine the
sentence. Unless an offender meets all of the criteria for the statutory safety valve,364 the fiveand 10-year mandatory minimum penalties established at 21 U.S.C. § 841(b) may apply to all
offenses that involve a particular drug type and quantity, without regard to other aggravating or
mitigating circumstances.365 The guidelines, however, use multiple offense- and offender361

See 18 U.S.C. § 924(e)(1).

362

See USSG §2K2.1(a)(2), (a)(4) (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition;
Prohibited Transactions Involving Firearms or Ammunition).

363

See generally USSG §2K2.1(a) & (b).

364

For a discussion of the statutory safety valve, see supra Chapter 2.

365

See 21 U.S.C. §§ 841(b)(1)(A) – (B).

58

specific characteristics in addition to drug type and quantity to determine the sentencing range,
including whether the offense involved death or bodily injury, whether the offender had an
aggravating or mitigating role in the offense; whether the offense involved a dangerous weapon;
whether the offender has accepted responsibility; and the seriousness of the offender’s criminal
history.366
Furthermore, the application of section 841(b) turns primarily on two quantity thresholds
for each drug type, corresponding to the statute’s five- and 10-year mandatory minimum
penalties.367 The guidelines use the type and quantity of drugs involved in the offense to
determine the base offense level according to the Drug Quantity Table at §2D1.1(c), which uses
17 different quantity thresholds.368 Thus, for example, in an offense involving 495 grams of
powder cocaine, the guidelines assign a base offense level of 24, which for an offender in
Criminal History Category I yields a guideline range of 51 to 63 months. At 500 grams, the base
offense level increases to 26, yielding an incrementally higher guideline range of 63 to 78
months. The guidelines’ incremental approach recognizes that an offender whose offense
involved 500 grams is only marginally more culpable than an offender whose offense involved
495 grams. However, under the applicable mandatory minimum penalty, 21 U.S.C. § 841(b),
offenses involving 495 grams of powder cocaine do not carry a mandatory minimum penalty,
while offenses involving at least 500 grams of powder cocaine carry a five-year mandatory
minimum penalty.369 Thus, the mandatory minimum penalty prescribes divergent minimum
sentences for offenders who, but for five grams of powder cocaine, are similarly situated.370
The structural differences between the guidelines and mandatory minimum penalties also
result in different outcomes with respect to the degree to which a particular fact increases an
offender’s sentence. For example, 21 U.S.C. § 841 establishes enhanced mandatory minimum
penalties if an offender commits a drug trafficking offense in violation of section 841(a) after
having previously been convicted of a “felony drug offense.”371 Having only one prior felony
drug offense conviction doubles the mandatory minimum penalty: the otherwise applicable fiveyear mandatory minimum penalty becomes a 10-year mandatory minimum penalty, and the 10-

366

See USSG §2D1.1(b); USSG Ch. 3, Pt. B (Role in the Offense); USSG §3E1.1 (Acceptance of Responsibility);
USSG Ch. 4, Pt. A (Criminal History).

367

See 21 U.S.C. § 841(b)(1)(A)-(B).

368

See USSG §2D1.1(a) & (c). The Commission’s method for calculating the quantity of a drug for purposes of the
guidelines sometimes differs from the statutes. See Appendix E(A)(2) of this Report.
369

See 21 U.S.C. § 841(b)(1)(B)(ii).

370

The 1991 COMMISSION REPORT referred to this effect as a sentencing “cliff.” See 1991 COMMISSION REPORT at
30–31.
371

See 21 U.S.C. §841(b)(1)(A), (b)(1)(B). “The term ‘felony drug offense’ means an offense that is punishable by
imprisonment for more than one year under any law of the United States or of a State or foreign country that
prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant
substances.” 21 U.S.C. § 802(44).

59

year mandatory minimum penalty becomes a 20-year mandatory minimum penalty.372 The drug
trafficking guideline, by contrast, does not contain an enhancement for a single prior felony drug
offense conviction, though such a conviction may incrementally increase the guideline range by
producing a higher criminal history score.373 At no point on the sentencing table, however, does
having only one prior conviction double the otherwise applicable guideline range.
The mandatory minimum penalties established at 18 U.S.C. § 924(c) further illustrate the
structural differences between the guidelines and mandatory minimums penalties. Section
924(c) establishes mandatory minimum penalties for conduct involving a firearm in violent
felonies and drug trafficking offenses. These mandatory minimum penalties require five years of
imprisonment for possessing, using, or carrying a firearm during and in relation to a crime of
violence or drug trafficking crime; seven years of imprisonment if a firearm was brandished; and
ten years of imprisonment if a firearm was discharged. The penalties increase to 10 years of
imprisonment if the firearm was a short-barreled rifle, a short-barreled shotgun, or a
semiautomatic assault weapon; and to 30 years of imprisonment if the firearm was a
machinegun, a destructive device, or was equipped with a silencer or muffler.374 The mandatory
minimum penalties provided by section 924(c) must be imposed consecutively to each other and
to any term of imprisonment imposed for the underlying offense.375
Several guidelines provide for offense level enhancements if a firearm is involved in a
violent or drug trafficking offense. Unlike section 924(c), the length of the enhancement under
the guidelines increases or decreases in proportion to the severity of the underlying offense (as
represented by the total offense level) and the offender’s criminal history. For example, §2B2.1
provides a base offense level of 17 for burglary of a residence, with a two-level enhancement if
the offense involved the possession of a dangerous weapon (including a firearm).376 Similarly,
§2D1.1 provides for a two-level enhancement in drug trafficking offenses involving a dangerous
weapon (including a firearm).377 By contrast, §2B3.1 establishes a base offense level of 20 for
robbery offenses, with a seven-level enhancement if a firearm was discharged, a six-level

372

See 21 U.S.C. §841(b)(1)(A), (b)(1)(B).

373

See USSG §4A1.1. A prior felony drug offense conviction will increase the offender’s criminal history score if
it meets the recency, age, and other requirements of Chapter Four, Part A of the Guidelines Manual. If the offender
has two or more prior felony convictions of either a crime of violence or a controlled substance offense, he or she
may qualify as a career offender pursuant to §4B1.1 (Career Offender), which may significantly increase the
guideline range.

374

See 18 U.S.C. §§ 924(c)(1)(A) – (B).

375

See 18 U.S.C. § 924(c)(1)(D)(ii) (“Notwithstanding any other provision of law . . . no term of imprisonment
imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on
the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during
which the firearm was used, carried, or possessed.”).

376

USSG §2B2.1(a)(1), (b)(4) (Burglary of a Residence or a Structure Other than a Residence).

377

USSG §2D1.1(b)(1).

60

enhancement if a firearm was otherwise used, and a five-level enhancement if a firearm was
brandished or possessed.378
The structural differences between mandatory minimum penalties and the guidelines are
particularly striking in the case of “stacking” penalties for multiple violations of section 924(c).
A second or subsequent violation of section 924(c) carries a mandatory minimum penalty of 25
years of imprisonment, or life if the firearm involved was a machinegun, a destructive device, or
was equipped with a silencer or muffler.379 These additional penalties must be imposed
consecutively to the sentence for the underlying offense and consecutively to the other section
924(c) penalties, so that an offender convicted of two or more section 924(c) counts faces an
especially severe penalty. By contrast, because the guidelines treat the use of a firearm as an
enhancement to the underlying offense, the guidelines grouping rules generally will apply so that
the offender receives no, or only incremental, sentence increases for using a firearm on multiple
occasions.380 Thus, any increases to the offender’s sentence for conviction of multiple counts
result primarily from the commission of additional underlying offense (e.g., the second offense
increased the total of amount of loss, involved additional quantities of drugs, or was otherwise
more serious), and not from the additional use of the firearm itself—the single fact triggering the
stacking of penalties. In sum, mandatory minimum penalties structurally are unable to draw the
fine distinctions among offenders and offenses that can be made under the guideline system.

378

USSG §2B3.1(a) & (b)(2) (Robbery).

379

18 U.S.C. § 924(c)(1)(C). For a more detailed discussion of the case law concerning stacking mandatory
minimum penalties under section 924(c), see infra Appendix E(B)(1) of this Report.

380

See USSG Ch. 3, Pt. D. (Multiple Counts).

61

62

Chapter 4

CHANGES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM,
MANDATORY MINIMUM PENALTIES, AND THE
FEDERAL PRISON POPULATION
A.

INTRODUCTION

This chapter addresses the requirement in the statutory directive to assess the impact of
mandatory minimum penalties on the federal prison population. Such an assessment requires
consideration, as set forth in Part C, of how mandatory minimum penalties themselves have
changed. Statutes carrying mandatory minimum penalties have increased in number, apply to
more offense conduct, require longer terms, and are used more often than they were 20 years
ago. These changes have occurred amid other systemic changes to the federal criminal justice
system, as described in Part B, that also have had an impact on the size of the federal prison
population. Those include expanded federalization of criminal law, increased size and changes
in the composition of the federal criminal docket, high rates of imposition of sentences of
imprisonment, and increasing average sentence lengths. As described in Part D, the changes to
mandatory minimum penalties and these co-occurring systemic changes have combined to
increase the federal prison population significantly.
B.

SYSTEMIC CHANGES TO THE FEDERAL CRIMINAL JUSTICE SYSTEM
1. Increased Federalization of Criminal Law

Federalization of criminal law refers to the transformation of “traditional state and local
criminal offenses into federal crimes.”381 Starting in the late 1960s, an increased emphasis on
law and order in national politics contributed to the enactment of a “steady stream of [federal]
criminal statutes.”382 “[C]oncern[s] with organized crime, drugs, street violence and other social
ills precipitated a particularly significant rise in federal legislation tending to criminalize activity
involving more local conduct, conduct previously left to state regulation.”383

381

Susan A. Ehrich, The Increasing Federalization of Crime, 32 ARIZ. ST. L.J. 825, 825 (2000); see Michael A.
Simon, Prosecutorial Discretion and Prosecutorial Guidelines: A Case Study in Controlling Federalization, 75
N.Y.U. L. REV. 893, 906 n.8 (2000) (“The term ‘federalization’ usually describes the legislative process of enacting
federal criminal laws that cover conduct that is already criminal under state law.”) (citing Rory K. Little, Myths and
Principles of Federalization, 46 HASTINGS L.J. 1029, 1030 n.2 (1995) (discussing “federalization” as term of art)).
382

Michael M. O’Hear, National Uniformity/Local Uniformity: Reconsidering the Use of Departures to Reduce
Federal-State Sentencing Disparities, 87 IOWA L. REV. 721, 726 (2002) (internal citations omitted). Accord Simon,
supra note 382, at 906 (Law and order became a volatile campaign issue in the late 1960s.).
383

Task Force on Federalization of Crim. Law, A.B.A., The Federalization of Criminal Law 7 (1998) [hereinafter
the ABA Report].

63

While the trend toward federalization of criminal law existed in 1991, “[a]ll signs
indicate that the federalization trend [has been] growing, not slowing”384 since that time. The
continued increased federalization of criminal law has contributed to the increasing size of the
Federal prison population.
In the period from 1992 through 1994, Congress created federal criminal statutes
penalizing failure to pay child support,385 carjacking,386 and domestic violence,387 and expanded
the Hobbs Act to include robbery.388 In 1996, Congress added laws punishing drug-induced
rape389 and church arsons.390 In 1998, Congress enacted new laws punishing sexual abuse of
children,391 identity theft,392 telemarketing fraud,393 and theft of cellular phone services.394 Many
of these federal laws overlap with one another, and cover ground already addressed by state law,
including violent crimes.395 They also provided for concurrent jurisdiction with state courts,

384

ABA Report at 11.

385

See Child Support Recovery Act of 1992 (CSRA), 18 U.S.C. § 228 (Supp. IV 1998).

386

See Anti-Car Theft Act of 1992, 18 U.S.C. § 2119 (1994 & Supp. IV 1998).

387

See Violence Against Women Act, 18 U.S.C. § 2261 (1994 & Supp. IV 1998).

388

See Hobbs Act, 18 U.S.C. § 1951 (1994).

389

See Drug-Induced Rape Prevention and Punishment Act of 1996, Pub. L. No. 104–305, 110 Stat. 3807 (codified
in scattered sections of title 21, United States Code).

390

See Church Arson Prevention Act of 1996, Pub. L. No. 104–155, 110 Stat. 1392 (codified at 18 U.S.C. § 247, 42
U.S.C. § 10602 (Supp. IV 1998)).

391

See Protection of Children From Sexual Predators Act of 1998, Pub. L. No. 105–314, 112 Stat. 2974 (codified at
18 U.S.C. § 2241 (Supp. IV 1998)).

392

See Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105–318, 112 Stat. 3007 (codified at 18
U.S.C. § 1028).

393

See Telemarketing Fraud Prevention Act of 1998, Pub. L. No. 105–184, 112 Stat. 520 (codified in scattered
sections of title 18, United States Code).

394

See Wireless Telephone Protection Act, Pub. L. No. 105–172, 112 Stat. 53 (1998) (codified at 18 U.S.C. § 1029
(Supp. IV 1998)).

395

See Eric Luna & Paul G. Cassell, Mandatory Minimalism, 32 CARDOZO L. REV. 1, 21-23 (discussing possible
causes of federalization of crime); Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts,
543 ANNALS AM. ACAD. POL. & SOC. SCI. 39, 43 (1996) (discussing federalization in 1980s and 1990s). For
example, in 1994, 18 U.S.C. § 924(i) provided the death penalty for murder committed by the use of a firearm
during a crime of violence or a drug-trafficking crime. Though Congress resurrected the federal death penalty in
1988, see 21 U.S.C. §§ 848(e)(1)(A)–(B) (1988), use of capital punishment at the federal level traditionally was
reserved for offenses that occur on federal lands (or on the high seas), murders of a federal official, and killings
involving espionage, hijacking, or kidnapping across state-lines. See Rory Little, The Federal Death Penalty:
History and Some Thoughts About the Department of Justice's Role, 26 FORDHAM URB. L.J. 347 (1999). Congress
has since broadened the federal death penalty to cover deaths occurring during other types of offenses, including
offenses involving aircraft and motor vehicles, terrorist attacks and other violence against railroad carriers and mass

64

rather than exclusive federal jurisdiction.396 This congressional activity prompted then Chief
Justice Rehnquist to assert that:
[t]he trend to federalize crimes that traditionally have been handled in
state courts not only is taxing the Judiciary’s resources and affecting its
budget needs, but it also threatens to change entirely the nature of our
federal system . . . Federal courts were not created to adjudicate local
crimes, no matter how sensational or heinous the crimes may be. State
courts do, can, and should handle such problems.397
The trend toward federalization of criminal law did not abate with the turn of the century.
The “number of criminal offenses in the United States Code increased from 3,000 in the early
1980s to 4,000 by 2000 to over 4,450 by 2008.”398 From 2000 through 2007, Congress enacted
an average of 56.5 crimes per year.399 This “number [of criminal statutes] does not take into
account the thousands of criminal offenses dispersed throughout federal regulations”400 created
by federal agencies and departments, of which there are so many that “the Congressional
Research Service itself admitted that it was unable to even count all of the offenses,” but
estimates that the regulatory criminal offenses number in the “tens of thousands.”401
Congressional action alone, however, is not the only contributing factor to the increased
federalization of criminal law. Prosecutorial charging decisions have also factored into the trend.
For example, in 1991, the Department of Justice announced Project Triggerlock, an initiative
with the “stated goal [of] reduc[ing] violent crime by imposing severe sentences on unlawful gun
possessors.”402 The initiative relied primarily on the enforcement of the federal felon-intransportation systems, bank robbery, and carjacking, among others. See, e.g., 18 U.S.C. §§ 34, 1992(b), 2113(e),
2119(3).
396

Sam J. Ervin, III, The Federalization of State Crimes: Some Observations and Reflections, 98 W. VA. L. REV.
761, 762 (1996); Robert Heller, Selective Prosecution and the Federalization of Criminal Law: The Need for
Meaningful Judicial Review of Prosecutorial Discretion, 145 U. PA. L. Rev. 1309, 1312 (1997).
397

CHIEF JUSTICE WILLIAM H. REHNQUIST, FED. JUDICIARY, THE 1998-YEAR END REPORT OF THE FEDERAL
JUDICIARY (1998), available at https://www.uscourts.gov/News/TheThird Branch/99-01-01/The_1998_YearEnd_Report_of_the_Federal_Judiciary.aspx.

398

Overcriminalization: An Explosion of Federal Criminal Law, Heritage Foundation Fact Sheet No. 86 (Apr. 27,
2011).

399

John S. Baker, Jr., Revisiting the Explosive Growth of Federal Crimes, Heritage Foundation Memo No. 26 at 1
(June 16, 2008).

400

Id. at 4.

401

Overcriminalization: An Explosion of Federal Criminal Law, Heritage Foundation Fact Sheet No. 86 (Apr. 27,
2011).

402

David E. Patton, Guns, Crime Control, and a Systemic Approach to Federal Sentencing, 32 CARDOZO L. REV.
1427, 1440-41(2011) (internal citations omitted). See also U.S. DEP’T OF JUSTICE, EXEC. OFFICE FOR U.S. ATT’YS,
United States Attorneys’ Bulletin, Vol. 40, No. 8, at 248 (Aug. 1992), available at

65

possession statute.403 “The systematic involvement of the federal government in prosecuting gun
cases that were the result of local police arrests and that would have been otherwise prosecuted
in state court, is considered by many to be ‘[t]he most important change in federal-local
interaction during the 1990s.’”404 The Department of Justice has undertaken several other
similar initiatives in recent years.405
2. Changes In the Size and Composition of the Federal Criminal Docket
Changes in both the size and composition of the federal criminal docket406 also have
contributed to the increasing federal prison population. The size of the federal criminal docket
has changed significantly in the last 20 years. The total number of federal cases has almost
tripled from 29,011 in fiscal year 1990407 to 83,946 in fiscal year 2010.408 Similarly, the number
of federal offenders convicted of violating a statute carrying a mandatory minimum penalty has
more than tripled since fiscal year 1990, from 6,685 cases to 19,896 in fiscal year 2010.409
The composition of the federal criminal docket has also changed. In fiscal year 1990,
cases involving drug offenses made up 44.5 percent of the docket.410 Fraud offenses constituted
another 10.5 percent of the docket, followed by firearms (7.5%), larceny (7.4%), and
http://www.justice.gov/usao/eousa/foia_reading_room/usab4008.pdf (“This initiative targets repeat offenders who
use or carry guns . . . and put[s] chronic offenders behind bars under stiff federal mandatory sentences.”).
403

18 U.S.C. § 922(g).

404

Patton, supra note 403, at 1441 (citing Daniel Richman, The Past, Present and Future of Violent Crime
Federalization, 34 CRIME & JUST. 377, 397 (2006)).

405

See, e.g., U.S. DEP’T OF JUSTICE, EXEC. OFFICE FOR U.S. ATT’YS, Project Safe Neighborhoods – An Overview of
the Strategy, United States Attorneys’ Bulletin, Vol. 50, No. 1 at 1 (Jan. 2002), available at
http://www.justice.gov/usao/eousa/foia_reading_room/usab5001.pdf (“Project Safe Neighborhoods is a
comprehensive, strategic approach to reducing gun violence in America.”); Press Release, Justice Program Shows
Success in Crime-Ridden Areas (July 15, 1999), available at
http://www.ojp.usdoj.gov/archives/pressreleases/1999/eows99151.htm (“Operation Weed and Seed . . . is a multiagency strategy, including partners from law enforcement, health, education and social services, that ‘weeds out’
violent crime, gang activity, drug use, and drug trafficking in targeted neighborhoods and then ‘seeds’ the
designated area by restoring these neighborhoods through social and economic revitalization.”).
406
The federal criminal docket referred to throughout this report consists of felonies, which are punishable by more
than one year of imprisonment, and Class A misdemeanors, which are punishable by not more than one year’s
imprisonment. See 18 U.S.C. § 3559(a). The guidelines do not apply to any count of conviction that is a Class B or
C misdemeanor or an infraction. See §1B1.9 (Class B or C Misdemeanors and Infractions).
407

See 1991 COMMISSION REPORT at 51 (Table 4).

408

U.S. SENT’G COMM’N, 2010 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, Table 1. By comparison, the
size of the population has increased from 248,709,873, to 308,745,538 during the same time period. See
http://www.census.gov/main/www/cen1990.html, reporting census data as of April 1, 1990 and
http://2010.census.gov/2010census/data/, reporting census data as of April 1, 2010.
409

Cf. 1991 COMMISSION REPORT at 51 (Table 4) and Table D-1 (Mandatory Minimum Status of Cases in Circuit
and District (Fiscal Year 2010)) in Appendix D of this report.
410

U.S. SENT’G COMM’N, ANNUAL REPORT (1991) at 52 (Figure E).

66

immigration (7.0%).411 Combined, these types of offenses accounted for 76.9 percent of the
federal criminal docket.
In fiscal year 2010, cases involving immigration, drugs, firearms, or fraud made up the
vast majority of the federal docket, accounting for more than 80 percent of all cases reported to
the Commission.412 The portion of the annual caseload attributable to each type of offense,
however, has changed significantly. Immigration cases were the most common federal crime in
fiscal year 2010,413 accounting for 34.3 percent of the federal criminal docket. Drug offenses
constituted another 28.9 percent of the docket, followed by fraud (9.7%) and firearms (9.6%)
offenses. 414
The percentage of all federal cases involving a conviction for violating a statute carrying
a mandatory minimum penalty has remained relatively constant during the last 20 years.
Convictions carrying a mandatory minimum penalty accounted for 26.6 percent in fiscal year
1991 compared to 27.2 percent in fiscal year 2010. See Figure 4-1.415 The percentage of federal
offenders subject to a mandatory minimum penalty, however, has declined from 20.5 percent in
fiscal year 1991 to 14.5 percent in fiscal year 2010. This decline is largely attributable to the
enactment in 1994 of the “safety valve” at 18 U.S.C. § 3553(f),416 which, as discussed in Chapter
2, allows the court to sentence certain drug trafficking offenders below otherwise applicable
mandatory minimum penalties.417

411

Id.

412

Commission, 2010 Sourcebook of Federal Sentencing Statistics, Table 3.

413

Id.

414

Commission, 2010 Sourcebook of Federal Sentencing Statistics, Figure A.

415

The figures in this chapter were created from the dataset discussed in Chapter 7, infra. The percentages
reflected in the figures may differ slightly from percentages based upon numbers reported in the Commission’s
Sourcebooks for the referenced fiscal years. The possible discrepancy is the result of cases having been excluded
from analyses in this Report as a result of missing documentation.

416

The rates of relief attributable to substantial assistance have remained relatively constant over time.

417

The impact of the “safety valve” is discussed in Chapter 8, infra.

67

Pl"lTl"llt~gl"

Figul'l" 4-1
of OUl"ndHS COll1'ktl"d or all Offl"nsl" C~l'ryillg ~ :\I~ndaror~' :\Iinimum Pl"nalrr
and SUbjl"rf 10 a :\Ialld~IO"r :\linimum Pl"nal~':H Sl"n1l"llrillg
Fiscal Yl"ars 1991 - 2010

-ComirlM _SUbjKI ro
100,0

T'·'"'""""['------------------------,

'" + - - - - - - - - - - - - - - - - - - - - - j
'" + - - - - - - - - - - - - - - - - - - - - - j

"""""". u " , , _ e - - r"l_",rODo<>SK,""""""'l_""""""lO

Although immigration offenses constitute a large percentage of the federal caseload, only
a small percentage of immigration offenders are convicted of offenses carrying a mandatory
minimum penalty.418 Thus, their inclusion masks the increased use of mandatory minimum
penalties for the remaining federal criminal docket over the same time period.
In fiscal year 1991, drug offenses constituted 44.5 percent of the overall federal criminal
docket419 compared to 28.9 percent in fiscal year 2010.420 As already noted, immigration
offenses now constitute the largest percentage of the federal criminal docket, 34.4 percent in
fiscal year 2010,421 compared to only 7.0 percent in fiscal year 1991.422 When immigration
offenses are excluded from the analysis, the percentage of offenders convicted of violating a
statute carrying a mandatory minimum penalty has increased over time, from 27.8 percent in
fiscal year 1991 to 39.9 percent in fiscal year 2010. See Figure 4-2.

418

In fiscal year 2010, 0.6 percent of immigration cases involved mandatory minimum sentencing provisions. See
Table D-2 (Mandatory Minimum Status in Each Primary Offense Category (Fiscal Year 2010)) in Appendix D of
this Report.
419

Commission 1991 Datafile OPAFY91.

420

See U.S. SENT’G COMM’N, 2010 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, Figure A.

421

Id.

422

U.S. SENT’G COMM’N, ANNUAL REPORT (1991) at 50.

68

Figul'l" 4-2
Pl"ITl"ntagl" of OUl"ndHS COll\"ktl"d of all Offl"lIsl" CaI'rying a :\lalldator~" :\Iinimum Pl"naltr
alld SUbjl"rt 10 a :\landalorr :\linimum Prnal~" at Srnll"llrillg
Immigration Casrs Exrludrd
Fisral Yl"ars 1991 - 2010
-eno,in'"

100.0

-Subj.<IIO

,','.',".""'------------------------,

.... t---------------------1
.... t---------------------1

"""""'. u.s._e--'''l_''''ODoodtM,'''''''''''''l_""""","lO

When immigration offenses are excluded from the analysis, the percentage of offenders subject
to a mandatory minimum penalty decreased from 20.5 percent in fiscal year 1990 to 15 percent
in fiscal year 2003, before gradually increasing to 21.2 percent in fiscal year 2010.
3. Increased Imposition of Sentences of Imprisonment
The increased use of sentences of imprisonment over the last 20 years has also affected
the size of the federal prison population. As illustrated in Figure 4-3, in fiscal year 1991, 77.1
percent of sentences imposed included a term of imprisonment. In fiscal year 2009, 90.7 percent
of sentences imposed included a term of imprisonment, which represents an increase of 13.6
percent.

69

......
,...

Figurr 4-3
ImposllioD orTum of Imprisonmtnl
Fiscal Yun 1991_ 2010

....
....

. . .

~9.0

20.0

In cases in which a term of imprisonment is imposed, the average sentence imposed has
decreased from 62 months of imprisonment in fiscal year 1991 to 54 months of imprisonment in
fiscal year 2010.423 See Figure 4-4. The nine-month decline in the average sentence of
imprisonment imposed has not resulted in a decrease in the federal prison population, however,
because the size of the federal docket has tripled over the same time period, and the proportion of
offenders sentenced to prison has increased.
Figure 4-4 also shows the relationship over time between the average term of
imprisonment imposed and the average minimum of the guideline range for offenders sentenced
to a term of imprisonment. There is a fairly consistent relationship over time between the
average term of imprisonment imposed and the minimum of the guideline range, which is often
referred to as the “presumptive sentence.”424 This ongoing trend shows how changes in offense
severity and offender culpability, as measured by the guidelines, affect sentencing decisions over
time and demonstrates that the guidelines continue to have a strong gravitational pull on federal
sentencing practices. Presumptive sentences increase or decrease for a variety of reasons,

423

These figures are the average sentences for cases in which a sentence of imprisonment was imposed. Cases in
which no sentence of imprisonment was imposed are not reflected in these average sentences. Note that the average
sentences reported herein differ from those reported in the Commission’s Sourcebook for the referenced fiscal years
because cases lacking certain documentation were excluded from the analyses conducted for this Report. See infra
Chapter 7(B).

424

For a more detailed discussion of this relationship, see U.S. SENT’G COMM’N , FINAL REPORT ON THE IMPACT OF
UNITED STATES V. BOOKER ON FEDERAL SENTENCING, 72-73 (Mar. 2006) [hereinafter COMMISSION 2006 BOOKER
REPORT].

70

including guideline amendments,425 statutory changes, and prosecutorial charging decisions. For
example, as discussed above, immigration offenses now account for the largest portion of the
federal caseload. Immigration offenses received an average sentence of 18 months of
imprisonment in fiscal year 2010, which is less than the average of 54 months of imprisonment
for the overall criminal caseload. Accordingly, the increase in the portion of the federal caseload
comprised of immigration offenses has contributed to the decrease in average sentence length
shown in Figure 4-4.426
Figul"t" 4-4
Anrage St"n1ence Wbell Offelldl."r Selltl."llcl."d to Pri.~oll and Guidelint" :\'1inimum
Fiscal Yl."ars 1991 - 2010
_Guidf'line Minimum

100 Month'

. /\

,,+---------------------1
,,+---------------------1

SOURCIl' U S _ e - l.. l _ " ' l O _ ~ l
..l _ = I " '

C.

CHANGES IN MANDATORY MINIMUM PENALTIES

At the same time that systemic changes to the federal criminal justice system described in
Part B were occurring, so too were changes occurring in mandatory minimum penalties.
1.

Expansion of Mandatory Minimum Penalties

A proliferation of mandatory minimum penalties has occurred over the past 20 years.
Since 1991, the number of mandatory minimum penalties has more than doubled, from 98427 to

425

Congress has issued to the Commission at least 85 specific and general directives regarding the guidelines in 45
different Acts since 1991. All but two of those 45 Acts resulted in amendments to the guidelines that increased the
applicable guideline sentencing ranges. See USSG App. B (2010).

426

See U.S. SENT’G COMM’N, 2010 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, Figure E.

427

See 1991 COMMISSION REPORT, Appendix A.

71

195 today. Table A-1 in Appendix A of this report lists those statutory provisions carrying
mandatory minimum penalties.428
2.

Changes in Types of Offenses Subject to Mandatory Minimums

New types of offenses have become subject to mandatory minimum penalties. See Figure
4-5. For example, in fiscal year 1991, the percentage of child pornography offenders convicted
of violating a statute carrying a mandatory minimum penalty was 2.8 percent.429 By fiscal year
2010, six years after the enactment of mandatory minimum penalties for certain child
pornography offenses,430 more than half (50.1%) of child pornography offenders were convicted
of violating a statute carrying a mandatory minimum penalty. Similarly, in fiscal year 1991, the
percentage of sexual abuse offenders convicted of violating a statute carrying a mandatory
minimum penalty was 3.8 percent. By fiscal year 2010, 52.5 percent of sexual abuse offenders
were convicted of an offense carrying a mandatory minimum penalty. See Figure 4-5.
Figul'p 4-5
OffPlldpl's ill S(')pct OffplIsP Typps COllvictpd of all OffPllSP
CalTying a Mandatory Minimum Pt'nalty
Fiscal Ypal's 1991 - 2010
~exuaIAbu.,..

~Fi .... arm.,

100.0 P.,·reu,

so.o
60.0

SOUJlC"E,

+-------------------------i

....

b~

" !'.......:-~::..."!'.............,..................:::~~=t

u.s. s......... c......,""" 1991_"'1010D... liJo" USSCTY91_ USSCTYIO.

Although Congress has broadened the types of offenses that carry mandatory minimum
penalties, drug trafficking and firearms offenses continue to make up the greatest portion of
428

See Table A-1 in Appendix A of this Report.

429

In fiscal year 1991, only two of the 95 pornography cases involved a conviction for violating a statute carrying a
mandatory minimum penalty. Both cases were convictions for violating 18 U.S.C. § 2252, which carries a
mandatory minimum penalty of five years of imprisonment.

430

In 2003, Congress enacted the PROTECT Act, which created mandatory minimum penalties for trafficking in
and receipt of child pornography, among other offenses.

72

convictions carrying mandatory minimum penalties.431 In fiscal year 1990, 91.1 percent of
defendants convicted of violating a statute carrying a mandatory minimum penalty were
convicted of a drug trafficking offense, and 4.5 percent were convicted of a firearms offense.432
See Figure 4-6. In fiscal year 2010, 77.2 percent (n=15,356) of defendants convicted of violating
a statute carrying a mandatory minimum penalty were convicted of a drug trafficking offense,
and 11.9 percent (n=2,365) were convicted of a firearms offense.433 In fiscal year 1990, 3.6
percent of defendants convicted of violating a statute carrying a mandatory minimum penalty
were convicted of a violent offense434 compared to 6.1 percent in fiscal year 2010.435
Figurt" 4-6
Primary Offeme of Corniction fol' Offenders COll\icled of all
Cal'l'ring a Mandatol')'l\1inimum Penalty
Fiscal Years 1990 and 2010
19901

201n:

n.I.."

Fh......
:'i-18J

Fh.1"lDII

:'i-11~

1'-:,l6,

l.6~

U~

U.

c..trou..l
SIb".....
:'i-I'..llI1

SIb,.....
!'-,.7,l

7U~

~l.l~

'~"RO:,

\'iolno'
l'-I,:l.l

Il.lI~

c..trou..l

'Soo,,,,,,-,

Offen.~e

,,

u.s- ~C_1010_

UsscrY10

Similar trends are observed when examining sentencing data by statute of conviction.
The 1991 Commission Report found that four statutes covering drug trafficking and firearms
431

See Table D-3 (Number of Convictions and Mean Sentence for Mandatory Minimum Statutes (Fiscal Year
2010)) in Appendix D of this Report.

432

1991 COMMISSION REPORT at 51 (Table 4).

433

See Table D-2 in Appendix D of this Report.

434

A violent offense was defined as “homicide, kidnapping, sex offenses, robbery, assault, and burglary/breaking
and entering” in the 1991 COMMISSION REPORT at 51, n. 3.

435

See Table D-2 in Appendix D of this Report. In order to draw accurate comparisons to the findings in the 1991
Commission Report, violent offenses are defined as murder, kidnapping/hostage taking, sexual abuse, pornography,
assault, robbery, and burglary/breaking and entering for purposes of this chapter.

73

offenses436 constituted the overwhelming majority (94.3%) of all convictions of violating statutes
carrying a mandatory minimum penalty during the period from 1984 through August 1990.437
Today the same four statutes still constitute the majority of such convictions, but they constitute
a smaller majority (71.6%)438 as other newer statutes carrying mandatory minimum penalties,
such as child pornography and aggravated identity theft statutes, are used with increased
frequency.
Table 4-1 lists the five statutes carrying mandatory minimum penalties most frequently
used in fiscal year 2010. Two subsections of 21 U.S.C. § 841 and one subsection of 18 U.S.C.
§ 924439 remain in the top five most frequently used statutes of conviction carrying a mandatory
minimum penalty. There are, however, two notable differences in the five most common
statutes. First, the most frequently reported conviction of an offense carrying a mandatory
minimum penalty in fiscal year 2010 was 21 U.S.C. § 846 (Attempt and Conspiracy [to Commit
a Drug Trafficking Offense]).440 Violations of section 846 accounted for almost one third
(32.8%) of the convictions of statutes carrying a mandatory minimum penalty. By contrast, in
1991, the Commission reported no convictions under that statute.441 Second, 18 U.S.C. § 1028A,
the aggravated identity theft statute that was enacted in 2004,442 was added to the list of most
frequently used statutes carrying a mandatory minimum penalty in fiscal year 2010.

436

21 U.S.C. §§ 841, 844, 960, 18 U.S.C. § 924(c).

437

1991 COMMISSION REPORT at 39-40 (Table 1).

438

See Table D-3 in Appendix D of this Report.

439

The 1991 Commission Report did not report separate percentages for the subsections of these statutes because
the Commission did not code subsections of each statute separately at that time. As a result, this report does not
provide a comparison between the top five statutes carrying mandatory minimum penalties as noted in the 1991
Commission Report and the top five statutes carrying mandatory minimum penalties most frequently reported in
fiscal year 2010.
440

The statutory penalties for violating 21 U.S.C. § 846 are the “same penalties as those prescribed for the offense,
the commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 846.

441

See 1991 COMMISSION REPORT at 39-40. Section 846 convictions were not punishable by a mandatory minimum
term of imprisonment until enactment of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100–690, 102 Stat. 4181
(1988).
442

Identity Theft Penalty Enhancement Act, Pub. L. No. 108–275, 118 Stat. 831 (2004).

74

Table 4-1
Number of Convictions for Most Frequently Used Statutes
Carrying Mandatory Minimum Penalties443
FY 2010
TOTAL NUMBER OF
COUNTS OF CONVICTION

PERCENTAGE OF COUNTS
OF CONVICTION

28,261

100.0

21 USC § 846

9,258

32.8

21 USC § 841(b)(1)(B)

3,203

11.3

21 USC § 841(b)(1)(A)

2,685

9.5

18 USC § 924(c)(1)(A)(i)

1,547

5.5

18 USC § 1028A(a)(1)

1,008

3.6

STATUTE
Total

3.

Increases in the Severity of Penalties for Mandatory Minimum Offenses

Since fiscal year 1990, not only has there been an increased reliance on statutes carrying
mandatory minimum penalties (excluding immigration offenses), but defendants now are
convicted of violating statutes that carry longer mandatory minimum penalties. See Figure 4-7.
In fiscal year 1990, slightly more than half (51.8%) of offenders convicted of an offense carrying
a mandatory minimum penalty were convicted for violating a statute carrying a mandatory
minimum penalty of five years of imprisonment. That percentage declined to 39.9 percent in
fiscal year 2010. In contrast, the percentage of offenders convicted of violating a statute carrying
a mandatory minimum penalty of ten years of imprisonment increased from 34.4 percent to 40.7
percent between fiscal years 1990 and 2010. There also has been a slight increase in the
percentage of offenders convicted of violating a statute carrying a mandatory minimum penalty
greater than ten years of imprisonment, from 9.0 percent in fiscal year 1990 to 11.9 percent in
fiscal year in 2010.

443

For additional information concerning convictions for violating statutes carrying mandatory minimum penalties,
see Table D-3 and Table D-4 (Specific Guideline Applied and Average Sentence by Guideline for Each Mandatory
Minimum Statute (Fiscal Year 2010)) in Appendix D of this Report.

75

Figlll't" 4-7
Length of i\'landatol'~' Minimnm Penalt~y fOI" Offenders COll"kted of an Offense
CanTing a Mandatol'~' Minimum Penal!")'
Fiscal Years 1990 and 2010

16 .. <;:(1
1'. ....

161'. ....
l'-lH
3.1%

261'. .",
N-n~

,.261'. ....
1'-16J

3.6%

,.161'. ....

N_ug
1J%

·d1'.....
]"-UU
5.1%

1,;%

,,.

N-28,

,.,
16
1' ...
N-l81

>5 '0 ..<16

1'. ...,

N-,

1.~%

e.l%

'...,..,e-_--.........
'""""Rae us _ ~ lO'O_'JsscrY'O

D.

CHANGES IN THE SIZE AND COMPOSITION OF THE FEDERAL PRISON POPULATION

The changes to the federal criminal justice system discussed in Parts B and C, supra,
have had a significant impact on the federal prison population. The number of inmates housed
by the Federal Bureau of Prisons (BOP) has almost tripled from 71,608 on December 31,
1991,444 to 208,188 on December 31, 2009. 445 See Figure 4-8.

444

Allen J. Beck & Darrell K. Gilliard, Prisoners in 1994, Bureau of Justice Statistics Bulletin, 1 (1995).

445

Heather C. West, et al., Prisoners in 2009, Bureau of Justice Statistics Bulletin, 2 (2010).

76

Figlll't" 4-8
"'umbel' of Offellders ill Prison on De('embel' 31
1991 - 2009

:"'umbtr
200,000
130,000
160,000
HO,OOO
120,000
100,000

" ...
.....
~O,OOO

20,000

"

~k~~~~~~~~~~~~~~~~~
~'~'~.~'~.~'~.~. ~ ~~~w~~~ ~~~~w

SO""C•. Alloa ,. """' . . o.nlIJ:. GiD'-~ ~ .. ,
~_.,

Jom<. _

, "'00'). .... . - c.

_

_"k"'."""'" _ ..,

(''''~..woo

'.Bod'" _ "-

v.- """"--,............ SKU J. " ' - ""''''''''' .. 101».

_.,~=-

""'-=.. }
_"",-...

JO/)/).

r-<"Oj.

The racial composition of the federal prison population has changed over time. See
Figure 4-9. In 1995, Black inmates (n=25,106) outnumbered other racial groups in the federal
prison population, followed by White (n=24,900), Hispanic (n=19,913), and Other Race
offenders (n=1,895). By 1997, however, the number of Hispanic inmates (n=26,681) exceeded
the number of White inmates (n=26,388), but Black inmates continue to outnumber all other
racial groups.

~ umbel'

,

Figlll't" 4-9
of Offenders in Plison Oil September 30
b~' Ra('e of Offendel'
1995 - 2010

..

;0.000' urn""r

.....
50.000
~O.OOO

30.000
20.000

77

The proportion of Black inmates in the federal prison population has, however, remained
relatively constant. As shown in Figure 4-10, Black inmates constituted 35.0 percent of the
prison population in 1995 and 35.2 percent in 2010.446 The proportion of Other Race offenders
has also remained relatively constant (2.6% in 1995 and 3.4% in 2010). By contrast, the
proportion of Hispanic inmates increased from 27.7 percent in 1995 to 33.5 percent in 2010,
coupled with a corresponding decrease in the proportion of White inmates during that period
(from 34.7% in 1995 to 27.9% in 2010).

Pt"I'rt"nl~gt" of

Figul't" 4-10
OfTt"ndt"I'S ill Prison on St"plt"mbt"1' 30
by R~ ...t" of OfTt"lIdt"1'
1995 ~lId 2010

1995

Hi>p..k

It,913

Hi'p..k
64,108

17.7~

ll.!'~

2010

6,no

\\lDtt
53,166

l,~~

17.l1~

0 ••

Throughout this period, the overwhelming majority of inmates in the federal prison
population each year were male with 66,237 male inmates in 1995 and 179,967 male inmates in
2010. See Figure 4-11.

446

The Commission received information from the BOP on the start and release date for each offender in prison
from October 1, 1990, through September 30, 2010. Commission data files were combined with a BOP data file to
determine how many offenders were in prison, what percentage of prisoners were convicted of violating a statute
containing a mandatory minimum penalty, and what percentage of prisoners were subject to a mandatory minimum
penalty at sentencing. The Commission used September 30, 1995, as the relevant date from which to draw the
prison population comparisons presented throughout this report because of data limitations prior to that date. The
Commission can only identify offenders convicted of violating a statute carrying a mandatory minimum penalty who
were sentenced after nationwide implementation of the federal sentencing guidelines in January 1989, and for whom
the Commission received the necessary sentencing documentation from the sentencing court to perform this
analysis. Therefore, this analysis cannot account for offenders in BOP custody who were convicted of violating a
statute carrying a mandatory minimum and sentenced prior to January 1989. For example, only 27.8% of offenders
in the custody of BOP as of September 30, 1991, were sentenced after January 1989. Therefore, an analysis of the
offenders in BOP custody as of that date could not account for the remaining 72.2% of offenders in the BOP custody
at that time. As of September 30, 1995, 71.8% of offenders in BOP custody were sentenced after January 1989, and
that figure increased to 90.5% as of September 30, 2009.

78

~lImbl"l' of

Figlll'l" 4-11
Offl"llIll"l'S iu Plisou 011 Sl"(ltembl"l' 30
b~' Gl"llIll"l' of Offl"lldl"l'
1995 - 2010

100,000
180,000
160,000
140,000
110,000
100,000
80,000

...

..,

40,000
10,000

"

...~'" ...rfo'" ,rfo" ...~'t,
SO""C•.

t!.•. _ ~.....

<1' ." ...*....~"'... ",*'" . .. # .",'" ...# ...*" .'l . .# .~...",

...

"_"_C_l"'_"lO""_"'SCROP

As shown in Figure 4-12, the proportion of male inmates in the federal prison population has
remained relatively constant over time. In 1995, male inmates constituted 92.0 percent in 1995,
increasing slightly to 93.7 percent in 2010. See Figure 4-12.
Figm'l" 4-12
Pl"l'Cflltagl" of Offelldl"l's ill PriSOIl 011 Sl"pll"mbl"l' 30
b" Gl"udl"l' of Offl"lldl"l'
199511lld 2010

2010

1995

SOOIlCE, u...

_e-... . .

_ "_c-...l..'_1010-.lJSSCBOP.

In 1995, United States citizen inmates (n=54,716) outnumbered non-citizen inmates
(n=16,533). See Figure 4-13. The number of United States citizen and non-citizen inmates has
increased annually. Nevertheless, United States citizen inmates continue to outnumber noncitizen inmates.

79

~lImbl"l'

Figure 4-13
of Offl"llIll"l'S ill Plisoll 011 Sl"ptl"mbl"l' 30
b~' Citizl"llsilip of Offl"lIdl"l'
1995 - 2010

_u.s,

_:'ion_U,S,

Cili1~n

Cili1~n

220,000
200,000
180,000
160,000
140,000
120,000
100,000

.....
.....
~O.OOO

20,000

•

,t$' ,# ,<fI" ,<f''t, ,$' ...#
so,mc•. u.•.

_~

......

.'1" . ~. ' . .<1'' .'" ,'l' . .#

.,<1'' .'!' t, ...#

..."",, ,

"_C-....1..'_2010","_"'S(!IOP

The proportion of United States citizen inmates in the federal prison population has also
remained stable over time, notwithstanding the change in the composition of the federal docket
noted in Part A, supra.447 As shown in Figure 4-14, in 1995 more than three quarters of inmates
(76.8%) in the federal prison population were United States citizens. By 2010, that percentage
decreased only slightly to 74.2 percent. See Figure 4-14.
Figure 4-14
Pl"l'fflltagl" of Offelldl"rs ill PriSOIl on Sl"ptl"mbl"l' 30
b~' Citizl"lIsilip of Offl"lIdl"l'
1995 - 2010

1!W5

~, \l."_~

447

2010

"_~1"'_2010_lJS5CBOP

Immigration cases were the most common federal crime in fiscal year 2010.

80

Combined Commission and BOP data demonstrate that an increasing number of inmates
in the federal prison population were convicted of violating statutes carrying mandatory
minimum penalties.448 As of September 30, 1995,449 combined Commission and BOP data
identify 40,104 offenders in BOP custody who were convicted of violating a statute carrying a
mandatory minimum penalty. See Figure 4-15. As of September 30, 2010, combined
Commission and BOP data identify 111,545 offenders in BOP custody who were convicted of an
offense carrying a mandatory minimum penalty, a 178.1 percent increase. Similarly, the number
of offenders in BOP custody who were subject to a mandatory minimum penalty at sentencing
increased from 29,603 as of September 30, 1995, to 75,579 as of September 30, 2010, an
increase of 155.3 percent.450
Figure 4-15
i"umbel' of OlTeuders iu Prisou Not Com'ktl'd of au OlTl'use CaIT)"iug a Maudator)'
l\Iiuimum, Com'ktl'd of au OlTeuse Carry"iug a Maudatory"l\Iiuimum Pl'ualty aud
Subjl'ct to a l\Iaudatol1' Miuimum Peual~' at Sl'uteudug
Fiscal Y"ars 1995 - 2010
• COD\iClfd

MlllSubjKI

l"umll<'r

no.ooo , , - - - - - - - - - - - - - - - - - - - - - ,

200.000
180.000

-IIJt:::=============:;;::;;::;;:.:j~

".-'".

j~~~~~~~~~li

'".000

I-=-

1~0.000

160.000
100.000

~O.OOO

20.000

•

SOO1lC1l'

1995

1997

1m

2001

2003

2005

2007

2009

u.s._~"'_ol_e..-Il"'_'OlO-'~

The increase in the federal prison population, however, is not solely attributable to
mandatory minimum penalties. Figure 4-15 demonstrates that the number of offenders in BOP
448

Commission data files were combined with a BOP data file to determine how many offenders were in prison,
what percentage of prisoners who were convicted of violating a statute containing a mandatory minimum penalty,
and what percentage of prisoners were subject to a mandatory minimum penalty at sentencing. The Commission
received information from the BOP on the start and release date for each offender in prison from October 1, 1990,
through September 30, 2010. These offenders were then matched with the Commission’s information on these
offenders.

449

See supra note 447 for the reason the Commission used September 30, 1995, as the relevant date from which to
draw this comparison because of data limitations prior to that date.

450

For a discussion of the demographic composition of offenders convicted of violating a statute carrying a
mandatory minimum penalty and offenders who were subject to a mandatory minimum penalty at sentencing, see
infra Chapter 7.

81

custody who were convicted of violating a statute with no mandatory minimum penalty also
increased significantly since 1995. The number of offenders in BOP custody who were
convicted of violating a statute with no mandatory minimum penalty increased from 31,868 as of
September 30, 1995, to 80,303 as of September 30, 2010, an increase of 152.0 percent.
Because the number of offenders in the federal prison population who were convicted of
violating statutes with and without mandatory minimum penalties both increased at similar rates,
the percentage of offenders in the custody of BOP who were convicted of violating a statute
carrying a mandatory minimum penalty has varied little. See Figure 4-16. Offenders convicted
of violating statutes carrying mandatory minimum penalties increased slightly from 55.7 percent
as of September 30, 1995, to 58.1 percent as of September 30, 2010, an increase of 4.3 percent,
but the proportion of offenders in the custody of BOP who were subject to a mandatory
minimum penalty decreased similarly. The percentage of offenders in BOP custody subject to a
mandatory minimum penalty at sentencing decreased from 41.1 percent as of September 30,
1995, to 39.4 percent as of September 30, 2010, a decrease of 4.1 percent.
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The resulting increase in the size of the federal prison population has caused other
changes to the federal prison system. The number of federal prisons has increased from 72451 to

451

See Federal Bureau of Prisons, State of the Bureau (1991), available at
http://www.bop.gov/news/PDFs/sob91.pdf. These facilities included any Federal Correctional Complex, Federal
Correctional Institution, Federal Detention Center, Federal Medical Center, Federal Prison Camp, Intensive
Confinement Center, Metropolitan Correctional Center, and U.S. Penitentiary.

82

116.452 The federal prison appropriations have increased from $1.36 billion for fiscal year
1991453 to $6.09 billion for fiscal year 2010.454
Notwithstanding the increases in number of facilities and budget, the BOP is currently
operating at 35 percent over its rated capacity.455 “Crowding is of special concern at higher
security facilities with 50 percent crowding at high security facilities and 39 percent at medium
security facilities. This severe crowding has resulted in double and triple bunking inmates.”456
This overcrowding is expected to continue because, although BOP releases about 61,000 inmates
per year, it receives approximately 67,000 new inmates annually.457
Statutes carrying mandatory minimum penalties have increased in number, apply to more
offense conduct, require longer terms, and are used more often than they were 20 years ago.
These changes have occurred amid other systemic changes to the federal criminal justice system,
including expanded federalization of criminal law, increased size and changes in the composition
of the federal criminal docket, high rates of imposition of sentences of imprisonment, and
increasing average sentence lengths. The changes to mandatory minimum penalties and these
co-occurring systemic changes have combined to increase the federal prison population
significantly.

452

See Testimony of Harley Lappin, Director, Fed. Bureau of Prisons, to the Commission, at 9 (Mar. 17, 2011),
available at http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/
20110317/Hearing_Transcript.pdf. As the federal prison population grew, the BOP’s main response for
accommodating the increased prison population was to build or acquire more prison facilities. BOP is currently
pursuing alternative measures to reduce overcrowding. See Prepared Statement of Harley G. Lappin, Director, Fed.
Bureau of Prisons, to the Commission, at 3–4 (Mar. 17, 2011), available at http://www.ussc.gov/
Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20110317/Testimony_BOP_Lappin.pdf.

453

Pub L. No. 101–515, 104 Stat. 2101, 2114 (1990).

454

Pub L. No. 111–117, 123 Stat. 3034, 3129 (2009).

455

See Prepared Statement of Harley G. Lappin, Director, Fed. Bureau of Prisons, to the Commission, at 2 (Mar. 17,
2011), available at http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/
20110317/Testimony_BOP_Lappin.pdf.

456

Id. at 2-3. Accord Fiscal Year 2011 Appropriations: Hearing Before the Subcomm. on Commerce, Justice,
Science and Related Agencies of the H. Comm. on Appropriations (Mar.18, 2010) (statement of Harley G. Lappin,
Dir. of the Fed. Bureau of Prisons (“Crowding is of special concern at higher security facilities including
penitentiaries (operating at 52 percent over capacity) and medium security institutions (operating at 46 percent over
capacity).”)); Housing D.C. Code Felons Far Away From Home: Effects on Crime, Recidivism and Reentry:
Hearing Before the Subcomm. on Federal Workforce, Postal Service and the District of Columbia of the H.
Oversight and Government Reform Comm.111th Cong. 17 (May 5, 2010) (Testimony of Harley Lappin, Director,
Bureau of Prisons (“The Bureau of Prisons is operating at 37 percent over rated the capacity system wide, with high
security institutions operating at 51 percent over capacity and medium security institutions operating at 46 percent
over capacity.”).).

457

See Testimony of Harley Lappin, Director, Fed. Bureau of Prisons, to the Commission, at 9 (Mar. 17, 2011),
available at http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/
20110317/Hearing_Transcript.pdf.

83

84

Chapter 5

POLICY VIEWS ABOUT MANDATORY MINIMUM PENALTIES
A.

INTRODUCTION

This chapter presents an overview of the policy views of stakeholders in the federal
criminal justice system about mandatory minimum penalties.458 This chapter first presents a
discussion of the policy views favoring mandatory minimum penalties, followed by a discussion
of policy views disfavoring mandatory minimum penalties.
B.

POLICY VIEWS

IN FAVOR OF MANDATORY MINIMUM PENALTIES

1. Promotion of Uniformity in Sentencing and Avoidance of Unwarranted Disparity
Some view mandatory minimum penalties as promoting uniformity and reducing
unwarranted disparities because such penalties require courts to impose similar sentences for
similar offenses.459 For example, according to Dr. David B. Mulhausen of the Heritage
Foundation, “[i]f judges tend to impose sentences at the minimum required by the mandatory
statutes, then similar offenders convicted of the same offense should receive the same
sentences.”460 Indeed, Congress enacted many mandatory minimum penalties, together with the
then-mandatory guidelines system, as part of its effort in the 1980s to narrow judicial sentencing
discretion and curb what it viewed as unduly disparate and lenient sentences.461
According to some, the importance of mandatory minimum penalties in ensuring
uniformity has increased after Booker. The Department of Justice has observed that sentencing
458

See Chapter 1 for a discussion of the methodology the Commission used to obtain the views of various
stakeholders regarding mandatory minimum penalties. By presenting an overview of contemporary perspectives on
mandatory minimum penalties, this chapter complements the discussion in Chapter 2 of the historical development
of mandatory minimum penalties and the various views of stakeholders over time regarding their efficacy.

459

See Prepared Statement of Sally Quillian Yates, U.S. Attorney, Northern District of Georgia, to the Commission,
at 8 (May 27, 2010) (on behalf of the U.S. Department of Justice); Prepared Statement of David Hiller, National
Vice President, National Fraternal Order of Police, to the Commission, at 4 (May 27, 2010).

460

Prepared Statement of David B. Mulhausen, Senior Policy Analyst, Heritage Foundation, to the Commission, at
10 (May 27, 2010); see Stanley Sporkin & Asa Hutchinson, Debate, Mandatory Minimums in Drug Sentencing: A
Valuable Weapon in the War on Drugs or a Handcuff on Judicial Discretion?, 36 AM. CRIM. L. REV. 1279, 1295
(1999) (statement of Rep. Hutchinson) (“[Y]ou have to have a sentencing pattern that has uniformity across it, that
sends the right signals . . . .”).
461

See Yates, supra note 459, at 8; Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative
History of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV. 223 (1993) (recounting the history of the
Federal indeterminate sentencing system and the legislative history of the Sentencing Reform Act); see also William
Austin & Thomas A. Williams, III, A Survey of Judges’ Responses to Simulated Legal Cases: Research Note on
Sentencing Disparity, 68 J. CRIM. L. & CRIMINOLOGY 306 (1977) (finding judges imposed different sentences under
pre-guidelines sentencing system based upon identical case information); Judge Marvin E. Frankel, Lawlessness in
Sentencing, 41 CINN. L. REV. 1 (1972) (discussing problems with the pre-guidelines sentencing system, especially
the wide-range of discretion granted sentencing judges that the author argued resulted in disparate sentences).

85

disparities have increased under the advisory guidelines system because for “offenses for which
there are no mandatory minimums, sentencing decisions have become largely unconstrained as a
matter of law.”462 According to the Department of Justice, “this has led to greater variation in
sentencing,” which “in turn undermines the goals of sentencing to treat like offenders alike,
eliminate unwarranted disparities in sentencing, and promote deterrence through predictability in
sentence.”463 After Booker, some prosecutors have charged offenses carrying mandatory
minimum penalties in order to narrow the sentencing court’s discretion.464 One judge testified
that, even if mandatory minimum penalties presented problems under the pre-Booker sentencing
scheme, they now serve to ensure needed sentencing uniformity.465
2. Protection of the Public through Certainty in Punishment, Deterrence, and
Incapacitation
Another policy rationale in favor of mandatory minimum penalties is that they protect the
public. For example, the Department of Justice believes that, working hand-in-hand with the
advisory guideline system, “mandatory minimum statutes remain important to promote the goals
of sentencing and public safety.”466 Indeed, law enforcement officials have historically urged the
enactment of mandatory minimum penalties.467
462

Yates, supra note 459, at 7. In 2003, the last full fiscal year before the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296 (2004), which held that a sentence imposed under Washington State guidelines violated
Sixth Amendment right to jury trial, 69.4% of all sentences were within the applicable guideline range, 22.2% were
government-sponsored below range sentences, 7.5% were non-government-sponsored below range sentences, and
0.8% were above the guideline range sentences. See U.S. SENT’G COMM’N, ANNUAL REPORT 37 (2003). In 2010,
five years after the Supreme Court’s Booker decision, 55.0% of all sentences were within the applicable guideline
range, 25.4% were government sponsored below range sentences, 17.8% were non-government sponsored below
range sentences, and 1.8% were above range sentences. See U.S. SENT’G COMM’N, ANNUAL REPORT 33 (2010); see
also U.S. SENT’G COMM’N, DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING PRACTICES: AN UPDATE OF THE
BOOKER REPORT’S MULTIVARIATE REGRESSION ANALYSIS (March 2010).
463

Yates, supra note 459, at 7; see also 155 CONG. REC. S10,704 (daily ed. Oct. 22, 2009) (statement of Sen.
Specter) (“Since [Booker], sentencing judges have wide discretion to impose sentences on criminal defendants
unless mandatory minimum sentences are applicable . . . . [Without mandatory minimums], there will be no
certainty of punishment nor effective deterrence for serious [] crimes.”).

464

See Testimony of Patrick J. Fitzgerald, U.S. Attorney, Northern District of Illinois, to the Commission, at 252
(Sept. 2009) (“[A] prosecutor is far less willing to forego charging a mandatory minimum sentence when prior
experience shows that the defendant will ultimately be sentenced to a mere fraction of what the guidelines range
is.”).

465

See Testimony of Judge Dennis W. Shedd, U.S. Court of Appeals for the Fourth Circuit, to the Commission, at
27 (Feb. 2009) (“I do understand how people saw mandatory minimums as a problem for the guideline sentencing
scheme as it existed pre-Booker. I’m not sure it’s a problem now. I think it may be one way to get some uniform
sentencing in some dire cases . . . . I think maybe the world has flipped on mandatory minimums.”).
466

Yates, supra note 459, at 8.

467

See, e.g., U.S. Department of Justice, Attorney General’s Task Force on Violent Crime: Final Report 30 (Aug.
17, 1981) (recommending “legislation to require a mandatory sentence for those convicted of the use of a firearm in
the commission of a federal felony . . . [that is] severe enough to have the necessary deterrent force.”); Armed
Career Criminal Act of 1983: Hearing on S. 52 Before S. Comm. on the Judiciary, 98th Cong. 22 (1983) (statement
of William Cahalan, Prosecuting Attorney, Wayne County, Michigan) (“I’m particularly impressed with the

86

According to those who hold this view, mandatory minimum penalties deter crime by
imposing certain, predictable, and generally severe punishment.468 Because mandatory
minimum penalties require a certain term of incarceration, they are viewed as “an effective
means of alerting would-be offenders to the consequences of certain illegal conduct.”469
According to the Department of Justice, sentencing reforms in the 1980s, including the
enactment and enhancement of many mandatory minimum penalties, helped reduce crime
rates.470 Some prosecutors and police officers report that the certainty of punishment provided
by mandatory minimum penalties is “critical” to law enforcement efforts.471 Furthermore, some
scholars believe that the severity of mandatory minimum penalties increases their deterrent effect
by raising the “cost” of committing crime to would-be offenders.472
In addition to their deterrent effect, some policymakers assert that mandatory minimum
penalties reduce crime by incapacitating criminals and protecting the public from their potential
future offenses.473 For example, law enforcement officers have reported to the Commission that
mandatory minimum sentence . . . because I think that puts real teeth in [the proposed law].”); Comprehensive Drug
Penalty Act: Hearing on H.R. 3272, H.R. 3299, and H.R. 3725, Before the Subcomm. on Crime of the H. Comm. on
the Judiciary, 98th Cong. 155 (1983) (statement of Jeffrey Hochman, Special Counsel, Fort Lauderdale Police
Department) (“I am glad to see that the Federal Government . . . realiz[es] that the only thing that people that [traffic
in drugs] understand is . . . minimum mandatory jail sentences, which in Florida . . . are pretty tough these days.”).
468

See, e.g., Hiller, supra note 459, at 3 (“The effectiveness of deterrence is difficult to quantify, but the
establishment of specific and hopefully harsh penalties for serious crimes is to deter individuals from engaging in
these crimes in the future, leading – in theory – to a reduction in crime.”); Sporkin & Hutchinson, supra note 460, at
1286 (statement of Rep. Hutchinson) (“[A] five-year mandatory minimum for someone who has 5.1 grams of crack
cocaine [has] a positive impact on the deterrence of crime and that is good for society . . . .”); Charles R. Tittle &
Alan R. Rowe, Certainty of Arrest and Crime Rates: A Further Test of the Deterrence Hypothesis, 52 SOC. FORCES
455 (June 1974) (finding that certainty of imprisonment deters the commission of offenses); Greg Pogarsky,
Identifying “Deterrable” Offenders: Implications for Research on Deterrence, 19 JUST. Q. 431, 445 (2002) (“[T]he
present study found that among deterrable offenders, sanction severity provided a greater deterrent than sanction
certainty.”); David McDowall, Colin Loftin, & Brian Wiersema, A Comparative Study of the Preventive Effects of
Mandatory Sentencing Laws for Gun Crimes, 83 J. CRIM. L. & CRIMINOLOGY 378, 379 (1992) (suggesting
mandatory sentencing enhancements for firearms deterred homicides but had an inconclusive effect on assaults and
robberies); Donald E. Lewis, The General Deterrent Effect of Longer Sentences, 26 BRIT. J. CRIMINOLOGY 47, 60
(1986) (finding evidence of deterrent effect from longer sentences).
469

Robert S. Mueller, III, Mandatory Minimum Sentencing, 4 FED. SENT’G REP. 230, 230 (1992).

470

See Yates, supra note 459, at 5-6 (noting that the “experience of law enforcement reinforces this research
[showing that sentencing and correction policies reduced crime] and shows that there are tangible benefits to law
enforcement and public safety from mandatory sentencing laws”).

471

See id. at 8; Hiller, supra note 460, at 155; see also Steven N. Durlauf & Daniel S. Nagin, Imprisonment and
Crime: Can Both Be Reduced?, 10 CRIMINOLOGY & PUB. POL’Y. 13, 37-38 (2011) (finding strong evidence that
certainty of punishment has a large deterrent effect); Tittle & Rowe, supra note 468, at 455.

472

See Mulhausen, supra note 460, at 9-10 (“Incentives matter; Raising the costs of crime will deter a significant
number of crimes and protect potential victims.”); Gary S. Becker, Crime and Punishment: An Economic Approach,
76 J. POL. ECON. 169, 180 (1968) (“The cost to each offender would be greater the longer the prison sentence, since
both foregone earnings and foregone consumption are positively related to the length of sentences.”).
473
Mandatory Minimum Sentencing Laws – The Issues: Hearing Before the Subcomm. on Crime, Terrorism, and
Homeland Sec. of the H. Comm. on the Judiciary, 110th Cong. 4 (2007) (statement of Rep. Forbes); Mueller, supra
note 469, at 230 (“Furthermore, the imposition of prescribed minimum prison terms enhances public safety by

87

incapacitation through mandatory minimum penalties has reduced methamphetamine- and
firearm-related crime.474 Chief Maxwell Jackson of Harrisville, Utah, who testified before the
Commission on behalf of the nation’s rural law enforcement officers, explained that federal
charges in rural communities are brought only against the “worst of the worst” drug offenders
and the mandatory minimum penalties “remove these most extreme offenders from society for
long periods of time.”475
3. Retribution
Some view mandatory minimum penalties as an important means of expressing society’s
disdain for an offense. Congressman Asa Hutchinson argued that the “strongest justification” for
mandatory minimum penalties is that they give society the “means of expressing its outrage
toward certain offenses that are so harmful to the public.”476 Dr. Mulhausen similarly testified
that some mandatory minimum penalties can be justified solely by reference to retributive goals:
“While utilitarian principles of deterrence and incapacitation can add additional support, some
crimes are so heinous that legislatures have a moral responsibility to establish sentencing floors
that do not involve probation or fines.”477
incapacitating dangerous offenders for substantial periods, thus preventing numerous instances of death, injury, and
loss of property.”); see also Sporkin & Hutchinson, supra note 460, at 1283 (statement of Rep. Hutchinson)
(“[M]andatory minimum penalties appear to be effective. Violent crime has declined seven years in a row. Murder
is down thirty-one percent since 1991. Robbery is down thirty-two percent. . . . [M]andatory minimum sentences
and tough penalties has [sic] had the effect of a lower crime rate in the United States.”); Joan Petersilia & Peter W.
Greenwood, Mandatory Prison Sentences: Their Projected Effects on Crime and Prison Populations, RAND Corp.
(Oct. 1977) (demonstrating that the mandatory incarceration of offenders to minimum prison terms of various
durations prevent additional crimes committed by the offenders); Shlomo Shinnar & Reuel Shinnar, The Effects of
the Criminal Justice System on the Control of Crime: A Quantitative Approach, 9 LAW & SOC’Y REV. 581 (1975)
(suggesting violent crime can be significantly reduced by mandatory incarceration due to the incapacitation of
offenders).
474

See Prepared Statement of Maxwell Jackson, Chief of Police, Harrisville, Utah, to the Commission, at 2 (May
27, 2010); Hiller, supra note 459, at 4; see also Testimony Before the Subcomm. on Crime of the H. Comm. on the
Judiciary, 106th Cong. at 3 (July 1999) (statement of Peter Reuter & Susan Everingham, RAND Drug Policy
Research Center) (suggesting that mandatory minimum penalties applied only to high-level drug dealers might be
more cost-effective than conventional enforcement).

475

Jackson, supra note 474, at 2; see Jonathan P. Caulkins, C. Peter Rydell, William L. Schwabe, & James Chiesa,
Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers’ Money, RAND Drug Research
Policy Center, at 77 (1997) (noting that federal law enforcement is better at targeting high-level drug dealers, while
local law enforcement is better able to respond to problems caused by street-level dealers).

476

Sporkin & Hutchinson, supra note 460, at 1282 (Statement of Rep. Hutchinson) (“It is fundamentally
appropriate for the people, through their elected representatives, to express outrage toward certain conduct that is
harmful to the public generally.”); see also Mueller, supra note 469, at 230 (“[Mandatory minimum penalties] are
important as expressions of Congressional concerns and, ultimately, as benchmarks for the base offense levels
specified by the Commission in the guidelines.”). Mr. Hutchinson recently testified before the Commission that he
has “no problem with the concept of mandatory minimums. [F]or the Congress of the United States . . . to express
outrage at a particular societal problem through a mandatory minimum, I think can be appropriate.” Testimony of
Asa Hutchinson to the Commission, at 170 (June 1, 2011).

477

Mulhausen, supra note 460, at 9 (noting also that “mandatory minimum sentences that establish long
incarceration or death sentences for very serious and violent crimes can be justified based solely on the doctrine of

88

4. Effective Law Enforcement Tool that Induces Pleas and Cooperation
Many in the law enforcement community view mandatory minimum penalties as an
important investigative tool. The threat of a mandatory minimum penalty gives law enforcement
leverage over defendants, who may be encouraged to cooperate in exchange for lesser charges or
safety valve and substantial-assistance benefits.478 Commissioner Raymond Kelly of the New
York Police Department testified that the potential application of more severe penalties in federal
court “has convinced a number of suspects to give up information.”479 Similarly, the Department
of Justice views mandatory minimum penalties as an “essential” and “critical tool” in obtaining
“cooperation from members of violent street gangs and drug distribution networks.”480
5. Assistance to State and Local Law Enforcement
Another justification for federal mandatory minimum penalties relates to the relationship
between state and federal law enforcement. Then-Assistant Attorney General Mueller stated that
because of the substantial concurrent state and federal jurisdiction in many drug and firearm
cases, if “a state sentence for one of these crimes is inappropriately low, the existence of a
substantially higher, federal mandatory minimum ensures a sentence that protects the public.”481
In their testimony to the Commission, Commissioner Kelly and Chief Jackson made the related

just deserts”); see also The Constitution Project, Principles for Design and Reform of Sentencing Systems: A
Background Report 26 (May 13, 2010) (“[T]here are indisputably some offenses, such as forcible rape or
premeditated murder, for which, by any standard, the minimum legally allowable punishment should include a term
of imprisonment.”), available at http://www.constitutionproject.org/pdf/34.pdf.
478

See Stephanos Bibas, Plea-Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2464, 2485 (2004) (“In
exchange for substantially assisting the investigation or prosecution of others, defendants may earn sentences far
lower than the [Sentencing] Guidelines and even mandatory minima would otherwise provide.”); Fitzgerald, supra
note 464, at 248 (“Mandatory minimum sentences have been a very effective tool in prosecuting particularly violent
offenders. The threat of a mandatory minimum sentence has caused many persons charged with these offenses to
become cooperative witnesses, often testifying against persons with greater responsibility in the drug or gang
organization.”); John C. Jeffries, Jr., & John Gleeson, The Federalization of Organized Crime: Advantages of
Federal Prosecution, 46 HASTINGS L.J. 1095, 1119-21 (1995) (concluding that “onerous mandatory minimum
sentences,” along with the sentencing guidelines, “has produced far more cooperation and accomplice testimony in
organized crime cases than occurred in the pre-Guidelines era . . . especially when [the cases] involve murder or
large amounts of narcotics.”); see also Implications of the Booker/Fanfan Decision for the Federal Sentencing
Guidelines: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the
Judiciary, 109th Cong. 31 (2005) (statement of Christopher A. Wray, Assistant Attorney General) (“Cooperation
agreements are an essential component of law enforcement and are necessary to penetrate criminal organizations and
to obtain convictions in court.”).
479

Prepared Statement of Raymond W. Kelly, Commissioner, New York Police Department, to the Commission, at
4 (July 10, 2009).

480

Yates, supra note 459, at 9; See also Fitzgerald, supra note 464, at 248.

481

Mueller, supra note 469, at 230.

89

point that the prospect of being convicted of a federal statute carrying a mandatory minimum
penalty induces defendants to plead to state charges. 482
C.

POLICY VIEWS AGAINST MANDATORY MINIMUM PENALTIES
1. Contribution to Excessive Uniformity and Unwarranted Disparity

One of the policy views advanced against mandatory minimum penalties is that they
result in excessive uniformity by requiring similar sentences for dissimilar offenders. For
example, “one of the [principal] flaws of mandatory minimums is that they apply one-size-fits-all
sentences to defendants who are not equally culpable.”483 As one scholar explained:
Ensuring equal treatment of offenders who fall within the terms of a
mandatory minimum prevents an important sort of unfairness –
unwarranted disparities in the punishment of similarly situated offenders.
But when the offenders subject to a mandatory minimum are not similarly
situated, the elimination of disparity creates a form of unfairness that often
is even more troubling – excessive uniformity.484
In the American Bar Association’s view, “[t]reating unlike offenders identically is as much a
blow to rational sentencing policy as is treating similar offenders differently.”485
Many believe that mandatory minimum penalties result in arbitrary and disparate
sentences because they rely on certain specified triggering facts to the exclusion of all others.486
482

Kelly, supra note 479, at 4; Jackson, supra note 473, at 2; see also Armed Career Criminal Act of 1983, supra
note 468, at 26 (statement of William Cahalan, Prosecuting Attorney, Wayne County, Michigan.) (“[B]ut if there
was the thought that they were going over to the Federal system and face a mandatory 15 years, that would be an
inducement to plead guilty in our [state] system.”).
483

Prepared Statement of Jay Rorty, American Civil Liberties Union, to the Commission at 5 (May 27, 2010); see
149 Cong. Rec. H 3072 (daily ed. Apr. 10, 2003) (statement of Rep. Kilpatrick) (“I am not a proponent of
mandatory minimums . . . [t]here should not be a one-size-fits-all sentencing structure when judges are determining
incarceration of a human being.”).
484

Prepared Statement of Steven J. Schulhofer, NYU School of Law, to the Commission at 10 (May 27, 2010);
Rorty, supra note 483, at 5.
485

Prepared Statement of James E. Felman, American Bar Association, to the Commission,, at 10 (May 27, 2010);
see also Bureau of Justice Assistance, U.S. Department of Justice, National Assessment of Structured Sentencing
127 (1996) (“It is clear from the experiences of many States that the increased use of mandatory minimum penalties
is interfering with achievement of the dual goals of reducing disparity and controlling correctional population
growth.”).

486

Testimony of Chief Judge Robert J. Conrad, Jr., U.S. District Court for the Western District of North Carolina,
to the Commission, at 129 (Feb. 11, 2009) (“Statutory mandatory minimum punishments and the guidelines written
to implement them achieve the goals of uniformity at the cost of sometimes unjust sentences. This is so because the
most common mandatory minimums are triggered solely by drug type and quantity and/or criminal history. Such a
myopic focus excludes other important sentencing factors normally taken into view by the guidelines and deemed
relevant by the Commission, such as role in the offense, use of violence, and use of special skill.”). See also Eric L.
Sevigny, Excessive Uniformity in Federal Drug Sentencing, 25 J. QUANT. CRIMINOLOGY 155 (2009) (finding that

90

“[W]henever a mandatory minimum penalty based on a single fact requires a sentence above the
otherwise applicable guideline range, or limits a judge’s use of that range, or prevents a
departure or variance in a case warranting a below-range sentence, unwarranted disparity has
been created.”487 For example, so-called “sentencing cliffs” occur when an offender’s “conduct
just barely brings him within the terms of the mandatory minimum.”488 In such a case, the
offender is subject to a significantly higher sentence than an offender whose conduct fell just
outside the scope of the mandatory minimum penalty, even though his or her conduct was only
marginally different.489 For example, a defendant convicted of trafficking 100 grams of heroin
would be subject to the five-year mandatory minimum penalty while one who sold only 99
grams of the drug would not, meaning that these defendants are subject to substantially different
sentences despite nearly identical conduct.490
A majority of judges believe that mandatory minimum penalties contribute to sentencing
disparity. In a 2010 Commission survey of United States District Judges on a range of
sentencing issues, 52 percent of judges ranked mandatory minimum penalties among the top
three factors contributing to sentencing disparity.491 In contrast, 78 percent believed that the
sentencing guidelines have reduced unwarranted sentencing disparities among similarly situated
defendants.492

overreliance on drug quantity, without adequate adjustments for offender culpability, results in excessive uniformity
where major, mid-level, and minor offenders receive similar sentences).
487

Prepared Statement of Michael Nachmanoff, Federal Public Defender, Eastern District of Virginia, to the
Commission, at 25 (May 27, 2010).

488

Schulhofer, supra note 484, at 9-10; See Steven A. Schulhofer, Rethinking Mandatory Minimums, 28 WAKE
FOREST L. REV. 199, 209 (1993).
489

See Prepared Statement of Erik Luna, Cato Institute, to the Commission at 2 (May 27, 2010) (describing
sentencing cliffs as the by-product of “seemingly trivial lines that carry huge consequences” in statutes with
mandatory minimum penalties); Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing
Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28
WAKE FOREST L. REV. 185, 194-95 (1993) (noting that mandatory minimum penalties create “cliff effects” because
they do not “provide for graduated increases in sentence severity” and instead provide for “sharp variations in
sentences based on what are often only minimal differences in criminal conduct or prior record”).
490

Schulhofer, supra note 484, at 9-10; Prepared Statement of Steven Saltzburg, George Washington University
School of Law, to the Commission, at 6 (May 27, 2010). A person convicted of a drug trafficking offense that
involved 100 grams or more of a mixture containing heroin is subject to a penalty of not less than five years and not
more than 40 years imprisonment. See 21 U.S.C. § 841(b)(1)(B). If the offense involved 99 grams or less of the
same heroin mixture, the person is subject to a penalty of not more than 20 years imprisonment. See 21 U.S.C. §
841(b)(1)(C).

491

U.S. SENT’G COMM’N, RESULTS OF SURVEY OF UNITED STATES DISTRICT JUDGES: JANUARY 2010 THROUGH
MARCH 2010 tbl. 16 (June 2010) [hereinafter 2010 Survey Results].
492

Id. at tbl. 17.

91

2. Excessive Severity and Disproportionality
Many view current federal mandatory minimum penalties as producing sentences that are
excessively harsh relative to the gravity of the offense committed, in part because “all sentences
for a mandatory minimum offense must be at the floor or above regardless of the circumstances
of the crime.”493 According to the Judicial Conference of the United States, mandatory
minimum penalties end up sweeping broadly because
a severe penalty that might be appropriate for the most egregious of
offenders will likewise be required for the least culpable violator . . . . The
ramification for this less culpable offender can be quite stark, as such an
offender will often be serving a sentence that is greatly disproportionate to
his or her conduct.494
One scholar explains that many sentences seem disproportionate to the offense because
“Congress did not link the minimum [sentence] to its picture of the least serious version of an
offense,” but rather to “an especially serious offender, and chooses as the ‘minimum’ [a]
sentence that it considers appropriate for him. As a result, Congress sets ‘minimum’ sentences
that are far too severe.”495
Some critics, including the late Chief Justice William H. Rehnquist, cite Congress’s
political concerns as a reason why mandatory minimum statutes are excessively severe.496
493

Saltzburg, supra note 490, at 5; See Mandatory Minimums and Unintended Consequences: Hearing on H.R.
2934, H.R. 834, and H.R. 1466 Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm.
on the Judiciary, 111th Cong. 42 (2009) (statement of Chief Judge Julie E. Carnes, U.S. District Court for the
Northern District of Georgia, on behalf of the Judicial Conference of the United States) (although there may be some
offenses “that are so unambiguous or heinous in nature that no examination of any fact other than the commission of
the crime itself” is required to determine the appropriate sentence, “[m]ost criminal conduct . . . does not lend itself
to such narrow scrutiny”); Felman, supra note 485, at 8.
494

Carnes, supra note 493, at 38 (arguing that mandatory minimum penalties also produce unfair and irrational
sentences that undermine public confidence in the judicial system and waste public resources by incarcerating
offenders for longer than necessary); see Bibas, supra note 478, at 2487 (“All too often . . . sentencing guidelines
and statutes act as sledgehammers rather than scalpels. This is particularly true of statutory minima and maxima,
which are packaged in large, discrete chunks.”); see also The Constitution Project, supra note 477, at 36 (“[O]nce a
mandatory minimum sentence has been enacted for a crime type, repeated increases in the minimum sentence for the
same crime are even more problematic than increases in statutory maximum sentences since mandatory sentences
necessarily affect all defendants convicted of an offense, while increases in statutory maximum sentences need have
no impact on any particular defendant.”).

495

Schulhofer, supra note 484, at 11. See also Prepared Statement of Julie Stewart, President, Families Against
Mandatory Minimums, to the Commission, at 1-2 (May 27, 2010); Nachmanoff, supra note 487, at 2 (concluding
that mandatory minimum statutes require excessive sentences for “tens of thousands of less serious offenders who
are not dangerous”); Testimony of C. Warren Maxwell, Deputy Chief U.S. Probation Officer, District of
Connecticut, to the Commission, at 187 (July 9, 2009) (“Sentencing length in mandatory minimums seems to have
been chosen arbitrarily without much regard to research in what is most effective in deterring crime and reducing
recidivism.”).
496

See William H. Rehnquist, Chief Justice of the United States, Luncheon Address (June 18, 1993), in
Commission, Proceedings of the Inaugural Symposium on Crime and Punishment in the United States 287 (1993)

92

Some scholars argue that mandatory minimum penalties produce disproportionately high
sentences even for offenders not subject to such penalties “because all [federal offenders] are
subject to guidelines that have been set to incorporate the mandatory minimums.”497 These
observers believe increasingly severe mandatory minimum penalties have “impelled the
[Commission] to increase many sentences to maintain some consistency in the Guidelines” and
have caused higher sentences “virtually across the board.”498 For example, some believe that the
linkage between the drug guidelines and mandatory minimum penalties “maintains
proportionality only with mandatory punishment levels that are overly severe―in effect
spreading the disproportionality inherent in mandatory minimums to every offender at every
quantity level.”499 In the Commission’s 2010 survey of judges, 58 percent of the respondents
were in favor of de-linking the guidelines from the mandatory minimum penalties, 22 percent
were against doing so, and 19 percent had no opinion.500
The Department of Justice has stated that “there are real and significant excesses in terms
of the imprisonment meted out for some offenders under existing mandatory sentencing laws,
especially for some non-violent offenders.”501 The Department of Justice explained that
“[m]andatory minimum sentencing statutes in the federal system now apply to a significant array
of serious crimes; and they also, by and large, mandate very severe imprisonment terms.”502
(“Mandatory minimums . . . are frequently the result of floor amendments to demonstrate emphatically that
legislators want to ‘get tough on crime.’”). See also Erik Luna & Paul G. Cassell, Mandatory Minimalism, 32
CARDOZO L. REV. 1, 24 (2010) (“[F]ederal lawmakers have explicitly used phrases like ‘tough on crime’ in their
support for mandatory minimums, with some of the most notorious sentencing laws originating from symbolic
politics.”); Testimony of Chief Judge Vaughn R. Walker, U.S. District Court for the Northern District of California,
to the Commission, at 43 (May 28, 2009) (“The minimum mandatories in drug cases, child pornography cases, and
so forth were enacted in reaction to a perceived political need at the time. Over time . . . the political need
diminishes.”); Sporkin & Hutchinson, supra note 460, at 1286 (statement of Judge Sporkin) (“Mandatory minimum
sentencing was clearly an effort to be tough on crime. Congress was frustrated. They wanted to get rid of the drug
scourge and Congress thought that putting violators of the drug laws in jail for long terms would cure the
problem.”).
497

Barbara S. Vincent & Paul J. Hofer, Federal Judicial Center, The Consequences of Mandatory Minimum Prison
Terms: A Summary of Recent Findings 3 (1994).

498

Felman, supra note 485, at 9.

499

Rorty, supra note 483, at 5-6.

500

See 2010 SURVEY RESULTS, supra note 491, at tbl. 3.

501

Yates, supra note 459, at 6-7. In the Sentencing Project’s Downscaling Prisons: Lessons from Four States
(2010), Judith Greene and Marc Mauer recount the rise in the prison populations of New York, Michigan, and New
Jersey resulting in part from the institution of mandatory minimum penalties for drug offenses, including low-level
offenders. For example, in 1973, New York Governor Nelson Rockefeller supported legislation imposing a fifteenyear mandatory minimum penalty for the sale of two ounces or possession of four ounces of a narcotic drug.
Enactment of the “Rockefeller Drug Laws” increased the proportion of drug offenders in the state’s prison
population from 11% to 34%. Id. at 6. The report also recounts recent sentencing reforms, including the reduction
or elimination of mandatory minimum penalties, in New York, Michigan, New Jersey, and Kansas, that reduced
those states’ prison expenditures. Id. at 60.
502

Yates, supra note 459, at 6.

93

This, in turn, has produced exponential growth in the federal prison population since the 1980s,
and the federal Bureau of Prison’s overcapacity “has real and detrimental consequences for the
safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety.”503 For
this reason, the Department of Justice suggests “some reforms of existing mandatory minimum
sentencing statutes are needed . . . to eliminate excess severity in current statutory sentencing
laws and to help address the unsustainable growth in the federal prison population.”504
Many judges also believe mandatory minimum penalties are too severe overall, with
about 62 percent of judges responding to the 2010 Commission survey stating that such penalties
across all offenses were “too high.”505 The judges’ opinions were more nuanced, however, with
regard to specific offenses. More than 50 percent of judges surveyed believed that the
mandatory minimum penalties were appropriate in drug trafficking offenses involving heroin
(55%), powder cocaine (52%), and methamphetamine (53%), while most of the surveyed judges
described the penalties for crack cocaine (76%) and marijuana (54%) offenses as “too high.”506
In firearms cases, approximately 60 percent of judges who responded in the 2010 Commission
survey believed that the mandatory minimum sentences were appropriate for firearm offenders
convicted of 18 U.S.C. § 924(c) and (e). Two percent stated that those sentences were too low,
while approximately 40 percent responded that they were too high.507 With regard to child
pornography offenses, most judges felt that the applicable mandatory minimum penalties were
appropriate for production and distribution offenses (67% and 57%, respectively), with far fewer
responding that these penalties were too high (37% and 23%, respectively). In contrast, 71
percent of respondents stated that the mandatory minimum penalty for receipt of child
pornography was too high, with only 26 percent believing it to be appropriate. For all other child
exploitation offenses, 68 percent of respondents believed the sentences were appropriate, 26
percent believed they were too high, and 6 percent believed they were too low. 508

503

Id. at 7; see Pew Center on the States, One in 100: Behind Bars in America 5, 11 (Feb. 2008) (“With 1,596,127
in state or federal prison custody, and another 723,131 in local jails, the total adult inmate count at the beginning of
2008 stood at 2,319,258. With the number of adults [in the United States] just shy of 230 million, the actual
incarceration rate is 1 in every 99.1 adults.”); Sporkin & Hutchinson, supra note 460, at 1286 (statement of Judge
Sporkin) (“[I]t’s a terrible thing that we’re doing with mandatory minimums. . . . [W]e’re putting more people in
prisons, we’re building more prisons, it’s costing us tremendous amounts of money.”).

504

Yates, supra note 459, at 8, 9-10.

505

See 2010 SURVEY RESULTS, supra note 491, at tbl. 1.

506

Id. Note that this survey was conducted prior to enactment of the Fair Sentencing Act of 2010, Pub. L. 111–220,
which among other things increased the quantity of crack cocaine required to trigger the 5-year and 10-year
mandatory minimum penalties from 5 and 50 to 28 and 280 grams, respectively. Chapter 8 of this Report reviews
current sentencing data about offenders convicted of drug offense statutes carrying mandatory minimum penalties.

507

Id. Chapter 9 of this Report reviews current sentencing data about offenders convicted of firearms offense
statutes carrying mandatory minimum penalties.

508

Id. Chapter 10 of this Report reviews current sentencing data about offenders convicted of sex offense statutes
carrying mandatory minimum penalties.

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3. Lack of Individualized Sentencing
Critics often argue that mandatory minimum penalties conflict with the goal of
individualized sentencing.509 For instance, the Judicial Conference has long urged Congress “to
reconsider the wisdom”510 of mandatory minimum penalties because they “block judges from
considering the individual circumstances of particular cases.”511 Because mandatory minimum
penalties may prevent a judge from considering all (or even most) of the pertinent facts and
circumstances of the case (such as offender characteristics512), the resulting sentence may be
unfair or irrational.513 Likewise, the American Bar Association has also called for the repeal of
federal mandatory minimum penalties after concluding that they are “inconsistent with the notion
of individualized sentencing within a guided discretion regime.”514 Moreover, there is
significant agreement with the Judicial Conference and the ABA among judges, lawmakers,
practitioners, scholars, and advocacy groups.515
509

See Justice Kennedy Commission, American Bar Association, Reports with Recommendations to the ABA House
of Delegates 27 (August 2004) available at
http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_kennedy_Jus
ticeKennedyCommissionReportsFinal.authcheckdam.pdf.; See also Chief Judge Walker, supra note 495, at 42
(“[T]he minimum mandatory sentences of course are troubling for all of us in many cases because they don’t
necessarily adequately reflect the tremendous variations in the particular facts and circumstances of the case.”).

510

See Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United
States 16 (1990), available at http://www.uscourts.gov/judconf/90-Mar.pdf.
511

Mandatory Minimum Sentencing Laws – The Issues: Hearing Before the Subcomm. on Crime, Terrorism, and
Homeland Security of the H. Comm. on the Judiciary, 110th Cong. 43 (2007) (statement of Judge Paul G. Cassell on
behalf of the Judicial Conference of the United States).

512

Saltzburg, supra note 490, at 5.

513

Judge Carnes, supra note 493, at 38 (arguing that mandatory penalties also produce unfair and irrational
sentences that undermine public confidence in the judicial system and waste public resources by incarcerating
offenders for longer than necessary).

514

Justice Kennedy Commission, supra note 509, at 26-27.

515

See, e.g., Letter from Sen. Patrick J. Leahy, Chairman, Senate Judiciary Committee, to Judge William K.
Sessions, Chair, U.S. Sentencing Commission (Aug. 30, 2010), available at
http://www.ussc.gov/Meetings_and_Rulemaking/Public_Comment/20100825/SenLeahy_2011PolicyPriorities.pdf
(“I am concerned that the creation of mandatory minimum penalties too often ties the hands of judges and
prosecutors and can result in unjust sentences. I also worry that mandatory minimum penalties undermine the
integrity and consistency of the sentencing guidelines system.”); Mandatory Minimums and Unintended
Consequences: Hearing on H.R. 2934, H.R. 834, and H.R. 1466 Before the Subcomm. on Crime, Terrorism, and
Homeland Security of the H. Comm. on the Judiciary, 111th Cong. 38 (2009) (statement of Grover G. Norquist,
President, Americans for Tax Reform) (“The benefits, if any, of mandatory minimum sentences do not justify the
burden to taxpayers. Illegal drug use rates are relatively stable, not shrinking. It appears that mandatory minimums
have become sort of a poor man’s Prohibition: a grossly simplistic and ineffectual government response to a
problem that has been around longer than our government itself.”); 150 CONG. REC. H4809 (daily ed. June 23, 2004)
(statement of Rep. Scott) (speaking in opposition to the mandatory minimums penalties created in the Identity Theft
Penalty Enhancement Act in 2004, on grounds that that “[b]y adding mandatory minimum sentences and denying
probation and concurrent sentences, the bill imposes unnecessary and unproductive restrictions on the ability of the

95

4. Transfer of Sentencing Discretion from Judges to Prosecutors
Mandatory minimum penalties are often viewed as effectively transferring discretion
from judges to prosecutors. 516 This transfer of discretion is of concern to some because it both
constrains judges’ discretion and “shift[s] that discretion to prosecutors, who do not have the
incentive, training, or even the appropriate information to properly consider a defendant’s
mitigating circumstances at the initial charging stage of a case.”517
According to a report of the Constitution Project Sentencing Initiative, co-chaired by
former Attorney General Edwin Meese III and Professor Philip B. Heymann, this transfer of
sentencing discretion through prosecutorial charging and plea bargaining effectively undercuts
the objective of reducing disparity.518 Others have strongly concurred with this view:
“Mandatory minimums effectively transfer sentencing authority from trial judges to federal
Sentencing Commission and judges, in individual cases, to assure a rational and just system of sentencing as a whole
and for individuals”).
516

See, e.g., Justice Kennedy Commission, supra note 509 (recommending repeal of mandatory minimum sentences
because “they tend to shift sentencing discretion away from courts to prosecutors”).See also Jeffrey T. Ulmer,
Megan C. Kurlychek, & John H. Kramer, Prosecutorial Discretion and the Imposition of Mandatory Minimum
Sentences, 44 J. RES. CRIM. & DELINQ. 427, 451 (2007) (“Our findings support the long-suspected notion that
mandatory minimums are not mandatory at all but simply substitute prosecutorial discretion for judicial
discretion.”); Angela Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 IOWA
L. REV. 393, 408 (2001) (“The charging decision is arguably the most important prosecutorial power. . . . In federal
and state jurisdictions governed by sentencing guidelines, these decisions often predetermine the outcome of a case
since the sentencing judge has little, if any, discretion in determining the length, nature, or severity of the
sentence.”); see also David Bjerk, Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion Under
Mandatory Minimum Sentencing, 48 J. LAW & ECON. 591, 622 (Oct. 2005) (“[P]rosecutors generally have the
discretion to prosecute a defendant for a lesser charge than the initial arrest charge, and the use of such discretion
can have dramatic effects on sentencing with respect to mandatory sentencing laws.”).
517

Felman, supra note 485, at 12-13; see also Testimony of Judge Gerald Bard Tjoflat, U.S. Court of Appeals for
the Eleventh Circuit, to the Commission, at 29 (Feb. 10, 2009) (“One of the problems with mandatory minimums is
the prosecutor becomes the sentencer in many cases.”); Testimony of Judge Jay C. Zainey, U.S. District Court for
the Eastern District of Louisiana, to the Commission, at 29-30 (Nov. 19, 2009) (“[I]t should not be the ultimate
responsibility or power of the government to let, to allow us or to enable us to go below the statutory minimum.”);
Sporkin & Hutchinson, supra note 460, at 1286 (statement of Judge Sporkin) (“And yet we’re giving that twentyfive or thirty-year-old [Assistant United States Attorney] more discretion than you’re giving a fifty-five-year-old
judge who’s had a lot of jobs and has been through the system and thoroughly vetted.”); Mandatory Minimum
Sentences – Are They Being Imposed and Who is Receiving Them?: Hearing Before the Subcomm. on Crime and
Criminal Justice of the H. Comm. on the Judiciary, 103rd Cong. 4 (1993) (statement of Henry R. Wray, Director of
Administration of Justice Issues, U.S. Government Accounting Office) (“[The General Accounting Office
identified] several [Department of Justice] district charging policies and practices that influenced decisions whether
to pursue mandatory minimum convictions against certain categories of defendants.”); Paul Hofer, Federal
Sentencing for Violent and Drug Trafficking Crimes Involving Firearms: Recent Changes and Prospects for
Improvement, 37 AM. CRIM. L. REV. 41, 58 (2000) (“It seems likely that use of [firearm sentencing enhancements]
as bargaining chips is a major reason for circumvention [of the specified mandatory minimum penalty].”); Judge
Cassell, supra note 510, at 152; Nachmanoff, supra note 487, at 12.
518

The Constitution Project, supra note 477, at 27 (“[T]he existence of mandatory minimum sentences tied to
conviction of particular offenses permits manipulation of sentences through differential prosecutorial charging and
plea bargaining policies . . . [that] undercuts the objective of reducing disparity.”).

96

prosecutors, who may pre-set punishment through creative investigative and charging practices,
producing troubling punishment differentials among offenders with similar culpability.” 519 This
shift in discretion is especially problematic, according to some, because prosecutorial decisions
are made outside of public view and in an “uncertain and inconsistent” manner.”520 Justice
Anthony Kennedy has observed that even though a prosecutor may act in good faith, the “trial
judge is the one actor in the system most experienced with exercising discretion in a transparent,
open, and reasoned way.”521 In the Commission’s 2010 survey of judges, 66 percent of
respondents ranked charging decisions among the top three factors contributing to sentencing
disparities.522
Moreover, some argue that mandatory minimum penalties can also be used to coerce
defendants to plead guilty and waive constitutional rights: “Under this system, defendants who
choose not to capitulate and go to trial are ultimately sentenced not only for their misconduct, but
for declining to plead guilty on the prosecutor’s terms.”523 Finally, some believe that the threat
of mandatory minimum penalties might cause offenders to give false information,524 to plead
guilty to charges of which they may actually be innocent,525 or to forfeit a strong defense.526
519

Luna, supra note 489, at 4; see also id. at 4-5 (noting that “Prosecutors are influenced by ordinary human
motivations that may at times cause a loss of perspective . . . [potentially] leading to the misapplication of
mandatory minimums. . . . A sentencing judge is the one neutral actor in the courtroom who benefits from neither
harsh punishment nor lenient treatment.”).

520

Felman, supra note 485, at 11-12; see also Mandatory Minimum Sentences – Are They Being Imposed and Who
is Receiving Them?, supra note 517 (“Prosecutors consider many factors in making charging decisions. On the basis
of the information in the case files, [the General Accounting Office was] unable to determine for individual cases
why a mandatory minimum charge was dropped, reduced, or never brought.”); National Assessment of Structured
Sentencing, supra note 485, at 100 (“By radically constricting judicial discretion, mandatory minimum penalties
severely constrain the sentencing process and move the locus of disparity to the charging stage, where it is less
visible.”).

521

Justice Anthony M. Kennedy, U.S. Supreme Court, Speech at the American Bar Association Annual Meeting
(Aug. 9, 2003), available at http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?
Filename=sp_08-09-03.html.
522

See 2010 SURVEY RESULTS, supra note 491, at tbl. 16.

523

Nachmanoff, supra note 487, at 12; see Rorty, supra note 483, at 2 (“Then prosecutors used that threat [of
mandatory minimum penalties] to force defendants to bargain away their constitutional rights to request bail, remain
silent, move to suppress illegally acquired evidence, discover the evidence against them, and receive a trial by jury –
all as the price for not being exposed to the higher minimum.”); Luna, supra note 489, at 2 (suggesting such
practices impose a “trial tax” on defendants who exercise their constitutional right to a jury trial).

524

See Nachmanoff, supra note 487, at 13 (“The problem with mandatory minimums is that they have a coercive
effect. . . . This extraordinary pressure can result in false cooperation and guilty pleas by innocent people.”); Ellen
Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68
FORDHAM L. REV. 917, 931 (1999) (“[F]ormer [Assistant United States Attorneys] . . . readily admit that, in some
instances, they simply could not determine if the cooperator had told the truth.”); Prepared Statement of Thomas W.
Hillier, II, Constitution Project, to the Commission, at 6-7 (May 27, 2010) (explaining that mandatory minimum
penalties “create a powerful incentive for informants and cooperators to provide exaggerated or false information [to
prosecutors] . . . [that] is not subjected to the crucible of trial”).
525

Nachmanoff, supra note 487, at 13.

97

5. Ineffectiveness as a Deterrent or as a Law Enforcement Tool to Induce Pleas and
Cooperation
Some scholars counter the claims made by proponents of mandatory minimum penalties
that these penalties serve as an effective deterrent to crime.527 They note that the research
conducted by social scientists and public policy analysts has found little evidence to support the
argument that mandatory minimums prevent crime. 528 In fact, many assert it is an increase in
the certainty of punishment through the prosecution of more offenders that is the more costeffective deterrent compared to the severity of punishment that mandatory minimum penalties or
longer sentences provide.529
526

Prepared Statement of Cynthia Hujar Orr, National Association of Criminal Defense Lawyers, to the
Commission, at 8 (May 27, 2010) (“The risk of being sentenced under mandatory minimums effectively precludes
defendants from exercising their Sixth Amendment right to a trial. . . . [E]ven if a defendant has minimal culpability
or a strong defense, faced with a mandatory minimum sentence of ten years or more, a defendant will almost always
forego his right to a trial.”).

527

Some research, in fact, questions the effectiveness of deterrence on crime prevention. See e.g., Dieter Dolling,
Horst Entorf, Dieter Hermann, & Thomas Rupp, Is Deterrence Effective? Results of a Meta-Analysis of
Punishment, 15 EUR. J. CRIM. POL’Y RES. 201, 216 (2009) (finding a only a slight relationship between punishment
and crime deterrence); Gary Kleck, Brion Sever, Spencer Li, & Marc Gertz, The Missing Link in General
Deterrence Research, 43 CRIMINOLOGY 623, 653-655 (2005) (implying that a weak relationship exists between
general deterrence and the certainty, severity or swiftness of punishment); Raymond Paternoster, How Much Do We
Really Know About Criminal Deterrence?, 100 J. CRIM. L. & CRIMINOLOGY 765, 818 (2010) (surveying extensively
the history and scholarly literature on criminal deterrence and concluding that the perceived severity and certainty of
punishment do not appear to be an effective deterrent to crime); National Institute of Justice, U.S. Department of
Justice, Relations between Increases in Certainty, Severity, and Celerity of Punishment for Drug Crimes and
Reduction of Crime, Drug Crime, and the Effects of Drug Abuse 46 (1993) (“Research on the effects of increased
certainty, severity, and/or celerity of punishment upon levels of crime is inconclusive.”).

528

Durlauf & Nagin, supra note 471, at 37-38 (finding relatively little reliable evidence that severity of punishment
results in a substantial deterrent effect, while strong evidence indicates that certainty of punishment has a large
deterrent effect and concluding that lengthy prison sentences, particularly mandatory minimum sentences, are
difficult to justify on a deterrence-based, crime-prevention basis); Anthony N. Doob & Cheryl Marie Webster,
Sentence Severity and Crime: Accepting the Null Hypothesis, 30 CRIME & JUST 143, 187 (2003) (“We could find no
conclusive evidence that supports the hypothesis that harsher sentences reduce crime through the mechanism of
general deterrence.”).

529

Valerie Wright, The Sentencing Project, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of
Punishment (2010) (“Research to date generally indicates that increases in the certainty of punishment, as opposed
to the severity of punishment, are more likely to produce deterrent benefits.”); Testimony Before the Subcomm. on
Crime of the H. Comm. on the Judiciary, 106th Cong. 2 (July 1999) (statement of Peter Reuter & Susan
Everingham, RAND Drug Policy Research Center) (“[Our] principal finding is that spending [a fixed sum of]
money on bringing more dealers to justice is superior in terms of the consequent reduction in cocaine consumption .
. . [than sentencing fewer dealers to mandatory minimum sentences].”); Andrew von Hirsch, Anthony E. Bottoms,
Elizabeth Burney, & P.O. Wikstrom, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research
45-48, 51-52 (1999) (finding that certainty of punishment has a greater deterrent effect than did severity of
punishment and noting little evidence exists suggesting mandatory penalties exert a deterrent effect). Some
researchers, however, argue that a balanced approach of both certainty and severity may achieve the best overall
result of crime deterrence. Silvia M. Mendes, Certainty, Severity, and Their Relative Deterrent Effects:
Questioning the Implications of the Role in Criminal Deterrence Policy, 32 POL. STUD. J. 59, 70 (2004) (concluding
that neither certainty nor severity should be more important than the other and the best overall result for deterrence
policy is produced by a balancing of both components). See also Harold G. Grasmick & George J. Bryjak, The

98

Some also dispute the claims that mandatory minimum penalties are a useful law
enforcement tool for the investigation and prosecution of criminals by inducing pleas and
cooperation. The American Bar Association has raised a threshold question of whether inducing
cooperation is a legitimate sentencing goal.530 Beyond that threshold question, many observe
that the exchange of reduced sentences for information results in “inverted sentencing,” in which
offenders with valuable information – kingpins, organizers, and other highly culpable defendants
– can avoid mandatory minimum penalties through charge-bargaining and substantial assistance
motions while low-level offenders cannot because they lack such valuable information.531
Others have also argued that mandatory minimum penalties are inefficient investigative tools.532
Some further believe that mandatory minimum penalties cause a “cooperation backlash”
that occurs “when sentencing practices are viewed as overly severe” and “many citizens become
reluctant to assist the law enforcement effort.”533 Thus, while mandatory minimum penalties can
increase cooperation by offenders who face those punishments, they “can chill the willingness of
citizens to cooperate with law enforcement at the early stages of investigation and arrest.”534
One witness viewed mandatory minimum penalties as superfluous because many defendants will
assist authorities in exchange for a less severe sentence, regardless of whether a mandatory
minimum penalty applies.535

Deterrent Effect of Perceived Severity of Punishment, 59 SOC. FORCES 471, 486 (finding that severity of punishment
has a deterrent effect when coupled with the certainty of punishment).
530

Felman, supra note 485, at 13 (“[T]he ABA rejects the very premise that the inducement of cooperation is a
legitimate aim of sentencing policy.”).

531

Orr, supra note 526, at 3; Schulhofer, supra note 484, at 16; Felman, supra note 485, at 10; Schulhofer, supra
note 488, at 211-12; See also Bibas, supra note 478, at 2491 (“Many offenders, however, have no information to
trade. They may have committed their crimes alone, may be too low-level to know much of value, or may be
innocent. Moreover, even if defendants have information, their codefendants may preempt them by trading
information first. The race to cooperate leaves some behind, and this effect may correlate poorly with offenders’
culpability”).

532

Ian Weinstein, Fifteen Years after the Federal Sentencing Revolution: How Mandatory Minimums Have
Undermined Effective and Just Narcotics Sentencing, 40 AM. CRIM. L. REV. 87, 129-30 (2003) (“Unfortunately, of
all the ways prosecutors can control sentences, the mandatory minimum statutes force them to use the least efficient
mechanism. Cooperation requires many prosecutorial and investigative resources. Unlike a dropping a count in the
indictment, cooperation requires meetings with both prosecutors and agents. If cooperation is successful, the
information gained often gives rise to a new investigation. While it is desirable to prosecute new cases, it is not at
all clear that the best way to allocate investigative resources is to order them according to how sentences should be
imposed in already-prosecuted cases.”).
533

Schulhofer, supra note 484, at 16; See Nachmanoff, supra note 487, at 6-7 (“Extreme federal punishments are
not necessary to deter, and create destructive community backlash . . . .”).

534

Schulhofer, supra note 484, at 17.

535

See Testimony of Julia L. O’Connell, Federal Public Defender, Northern & Eastern Oklahoma, to the
Commission, at 182 (Nov. 19, 2009) (“[A] defendant who is facing a term of imprisonment, if that person wants to
reduce their term of imprisonment and feels comfortable cooperating, they are going to do so, no matter how small
the potential sentence is.”).

99

6. Interference with State Law Enforcement
Some view federal mandatory minimum penalties as indicative of the “overfederalization” of criminal justice policy and as upsetting the proper allocation of responsibility
between the states and federal government.536 The late Chief Justice Rehnquist noted that
mandatory minimum penalties “fueled the trend toward federalizing crimes” because law
enforcement elects to pursue charges in federal rather than state courts because of the severe
mandatory minimum penalties available under federal law.537 Professor Erik Luna testified that
536

See Chapter Four of this Report for a discussion about the increase in the number of federal criminal laws since
the 1980s. See also Task Force on Federalization of Criminal Law, American Bar Association, The Federalization
of Criminal Law 5 (1998) (“Congressional activity making essentially local conduct a federal crime has accelerated
greatly, notably in areas in which existing state law already criminalizes the same conduct. This troubling
federalization trend has contributed to a patchwork of federal crimes often lacking a principled basis.”); Rachel E.
Barkow, Federalism and Criminal Law: What the Feds Can Learn from the States, 109 MICH. L. REV. 519, 523-24
(2011) (“Over the last several decades, federal criminal law has mushroomed beyond recognition. . . . Many of these
laws are written in sweepingly broad terms, overlap with one another, and cover ground already addressed by state
law, including violent crimes.”); Susan A. Ehrlich, The Increasing Federalization of Crime, 32 ARIZ. ST. L.J. 825,
826 (2000) (“Without doubt, criminal conduct ought to be prosecuted, but, while this increasing federalization of
crime might bring votes to politicians at election time, the rush to make federal every social affront is at the expense
of our constitutional division of governmental authority and of the justice system.”).
A related phenomena sometimes used interchangeably with “over-federalization” is “over-criminalization,”
which generally means the expansion of federal and state criminal law to punish types of conduct not traditionally
criminalized. A wide-range of observers has expressed concern over those related trends. See, e.g., Brian W. Walsh
& Tiffany M. Joslyn, The Heritage Foundation and the National Association of Criminal Defense Lawyers, Without
Intent: How Congress is Eroding the Criminal Intent Requirement in the Federal Law 6-10 (2010) (discussing the
erosion of the mens rea requirement under federal law); John Hasnas, Washington Legal Foundation, Mens Rea
Requirement: A Critical Casualty of Overcriminalization 1 (2008) (“Traditionally, the criminal law required a
showing of mens rea (which is Latin for a guilty mind) . . . . [which] renders the criminal law a very poor
mechanism for economic regulation. . . . Unfortunately, at an ever-accelerating rate over the course of the 20th and
21st centuries, federal and state governments have elected to employ the criminal law as a means of achieving
regulatory ends.”); William R. Maurer & David Malmstrom, Federalist Society, The Explosion of the Criminal Law
and Its Cost to Individuals, Economic Opportunity, and Society 4 (2010) (“Today’s legislatures use the criminal
code not just to prevent or punish wrongdoing, but to regulate a wide range of personal, economic, and social
conduct.”); and Kimberly Humphrey, American Civil Liberties Union, Criminal Codes Gone Wild (Oct. 20, 2010)
(“Overcriminalization describes the trend in our justice system of attaching criminal penalties to conduct that should
not be categorized as criminal.”), available at http://www.aclu.org/blog/drug-law-reform-racial-justice/criminalcodes-gone-wild.
537

Rehnquist, supra note 496, at 286; cf. 149 CONG. REC. H. 3067 (daily ed. Apr. 10, 2003) (statement of Rep.
Scott) (“The [proposed] bill [the PROTECT Act] adds a 5-year mandatory minimum for first offense crimes that are
Federal crimes only because a person crosses State lines, such as when an 18-year-old and a 17-year-old conspire to
cross state lines from Washington, D.C., to Virginia to have consensual sex . . . [but if they] cross from Virginia to
Washington, D.C., to have sex, it would not be a child sex offense, and that is because consensual sex outside of
marriage is not a crime in Washington, D.C., while it is in Virginia.”). See also Testimony of Jacqueline Johnson,
First Assistant Federal Public Defender, Northern District of Ohio, to the Commission, at 328-29 (Sept. 10, 2009)
(“In Ohio, the average time served for possessing a weapon in the state system under disability is 1.15 months. . . .
[My] client . . . has a Criminal History Category of IV. . . . He has two misdemeanors for which he received two
points, one conviction for public gambling, three convictions for driving while under suspension . . . and then he has
one conviction for drug trafficking, which he received no time in prison at the state level. . . . If he were to proceed
to trial and be convicted of [§ 924(c)], he’s looking at a guideline range of 51 to 63 months [with a mandatory
minimum sentence of 60 months].”).

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federal mandatory minimum penalties can “overwhelm” state and local choice on criminal
justice issues, thereby “effectively and powerfully nullifying state and local judgments.” 538 He
further testified that he was concerned “that law enforcement considers vast sentencing
differentials between state and federal systems as some type of unmitigated good, essentially
treating the states as the junior varsity.” 539
7. Impact Across Demographic Groups
Some express concerns that mandatory minimum penalties unfairly impact racial
minorities and the economically disadvantaged.540 This may be attributed in part to the fact that
the most frequently applied mandatory minimum penalties are for drug offenses, which
according to some disproportionately impacts certain racial or ethnic groups.541 While
acknowledging that this disproportionate impact may be more a function of law enforcement
priorities rather than sentencing policy, some assert that mandatory minimum penalties
nevertheless are being applied most frequently to a population that is not necessarily
representative of all persons violating such laws.542 They argue that this perceived uneven
538

Luna, supra note 489, at 7.

539

Testimony of Erik Luna, Cato Institute, to the Commission, at 271 (May 27, 2010); See also Michael M.
O’Hear, National Uniformity/Local Uniformity: Reconsidering the Use of Departures to Reduce Federal-State
Sentencing Disparities, 87 IOWA L. REV. 721, 730 (2002) (“Ironically, federal reforms that were intended to combat
sentencing disparities likely exacerbated disparities between state and federal sentences. . . . Thus, federal
mandatory minimum penalties exceed state maximum penalties for some offenses in some states.”).
540

See 1991 COMMISSION REPORT, at 51. Justice Kennedy Commission, supra note 509, at 27 (finding that that
mandatory minimum penalties disproportionately affect racial minorities); Brennan Center For Justice, Racial
Disparities in Federal Prosecutions (2010) (recounting instances of racial disparities in federal prosecutions and
making recommendations to eliminate the same), available at http://www.brennancenter.org/page//Justice/ProsecutorialDiscretion_report.pdf?nocdn=1; David B. Mustard, Racial, Ethnic, and Gender Disparities in
Sentencing: Evidence from the U.S. Federal Courts, 44 J. L. & ECON. 285, 311 (2001) (concluding that in spite of
explicit statements in the federal sentencing guidelines, “large differences in the length of sentence exist on the basis
of race, gender, education, income, and citizenship.”).
541

Prepared Statement of Marc Mauer, Executive Director, Sentencing Project, to the Commission, at 7 (May 27,
2010). See also Bureau of Justice Assistance, supra note 485, at 89 (“Collectively, results of all the studies in this
chapter suggest that the USSC guidelines have reduced disparity but that more research is needed to better
understand the overall impact on sentencing disparity reduction. The extent of racial disparity in the use of
incarceration has worsened under the mandatory minimum-driven drug guidelines, with dramatically increased
penalties for which African-Americans are disproportionately arrested and convicted.”); Prepared Statement of
Laurie L. Levenson, Professor, Loyola Law School, to the Commission, at 5 (May 27, 2010) (“[M]andatory
minimum sentences have created two systems of justice --- one for white defendants and another for inmates of
color. . . . More than 71% of the inmates in federal prison are inmates of color . . . [and sentenced for federal drug
offenses] which, not coincidentally, are the crimes most affected by mandatory minimum sentences.”); Orr, supra
note 526, at 5 (“Mandatory minimums are primarily imposed for drug offenses and statistics demonstrate that people
of color are disproportionately prosecuted for drug offenses. These two facts create an environment ripe for racial
disparity in mandatory minimum sentencing.”).
542

Mauer, supra note 541, at 7. See also Ngozi Caleb Kamalu, Margery Coulson-Clark, & Nkechi Margaret
Kamalu, Racial Disparities in Sentencing: Implications for the Criminal Justice System and the African American
Community, 4 AFR. J. OF CRIMINOLOGY & JUST. STUD. 1 (2010) (reviewing literature on racial disparities in
sentencing and noting the impact of the penal system on the African American community); Johnson, supra note

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application creates perceptions of unfairness that undermine the public’s acceptance of the
criminal justice system.543
Some also view legally relevant factors, such as criminal history and prosecutorial
discretion in charging decisions or plea agreements, as contributors to the demographically
disparate impact of mandatory minimum penalties. Studies show that racial minorities are more
likely than whites to have a prior record, which may result from disproportionate processing by
the criminal justice system.544 Research likewise indicates that offenders in certain racial groups
may be less likely to get the benefit of prosecutorial discretion in charging decisions or plea
agreements.545
Some have also expressed the view that disparate results may occur based on an
individual’s socio-economic status. For example, one public policy group that has conducted
several studies on the impact of the criminal justice system on discrete communities observed a
disproportionate impact of the justice system on economically-disadvantaged defendants.546
535, at 328 (“I have a case now where ATF agents and local police were conducting surveillance at a gun show in a
semi-rural community [in Ohio] where few African-Americans live. They observed a black woman and a black man
buy two guns and simply assumed that one or both of them were straw purchasers or convicted felons.”).
543

Justice Kennedy Commission, supra note 509, at 52 (“It is nonetheless true that there is a perception among
substantial numbers of minorities that the criminal justice system is discriminatory, and the perception frequently is
based upon reality. That perception itself may lead to crime, disrespect for the law, and even a willingness to nullify
or subvert the law. Accordingly, we must recognize how racial disparities may undermine confidence in our
criminal justice system and its ability to prevent crime.”).
544

See Mauer, supra note 541, at 8; MARC MAUER, RACE TO INCARCERATE 126–40 (2006) (describing disparities in
incarceration rates, explaining that those disparities are the product of myriad criminal justice policies, and
concluding that the “sentencing policies of recent years, whether motivated by a desire to ‘get tough’ or to reduce
disparities, have in fact unfairly affected low-income people and minorities.”). See also Office of Hawaiian Affairs,
The Disparate Treatment of Native Hawaiians In the Criminal Justice System 28 (2010) (“[D]ata from Hawai ‘ i’s
Attorney General show that Native Hawaiians are arrested at a greater frequency than Hawai ‘ i’s other ethnic
groups, often second only to Whites in specific offense categories.”); Vincent Schiraldi & Jason Ziedenberg, Justice
Policy Institute, Race and Incarceration in Maryland (2003) (finding that racial and ethnic minorities in Maryland
are overrepresented in the states incarcerated population).
545

Nachmanoff, supra note 487, at 10 (“Most troubling, because it largely reflects a discretionary choice by
prosecutors, are differences in the rate different groups receive an enhancement under § 924(c) instead of the less
severe two-level gun bump under the guidelines. [In FY2008], about 35% of black defendants [received a § 924(c)
enhancement] but only 26% of white defendants received the § 924(c) [enhancement].”); Lauren O’Neill Shermer &
Brian D. Johnson, Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S.
Federal District Courts, 27 JUST. Q. 394, 417 (2010) (finding that black and Hispanic offenders are less likely to
have their initial charges reduced in weapons offenses); Cassia Spohn, John Gruhl, & Susan Welch, The Impact of
the Ethnicity and Gender of Defendants on the Decision to Reject or Dismiss Felony Charges, 25 CRIMINOLOGY
175, 183 (1987) (finding evidence that black and Hispanic offenders are less likely to have felony charges against
them dropped compared to white or female offenders in Los Angeles, CA).
546

Justice Policy Institute, A Capitol Concern: The Disproportionate Impact of the Justice System on Low-Income
Communities in D.C., at 4-5 (July 2010) (finding that communities of color and low-income are disproportionately
represented in D.C.’s criminal justice system), available at http://www.justicepolicy.org/uploads/justicepolicy/
documents/10-07_exs_capitolconcern_ac-ps-rd-dc.pdf. See also Tracy Nobiling, Cassia Spohn, and Miriam
DeLone, A Tale of Two Counties: Unemployment and Sentence Severity, 15 JUST. Q. 459, 479-484 (1998) (finding

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D.

CONCLUSION

Mandatory minimum penalties have long drawn the attention of various stakeholders in
federal criminal justice policy, and these stakeholders have taken a range of policy positions
supporting and opposing mandatory minimum sentencing provisions. In particular,
disagreements concerning mandatory minimum penalties center on their ability to establish
appropriate sentences, their ability to reduce unwarranted sentencing disparities, and their
efficacy as investigative and resource-preserving tools.

evidence that a defendant’s employment status has an effect on sentence severity and/or the decision to incarcerate);
Justice Policy Institute, The Vortex: The Concentrated Racial Impact of Drug Imprisonment and the Characteristics
of Punitive Counties, at 16 (2007) (“Prisons in the U.S. are disproportionately populated by individuals who were
living in poverty prior to their imprisonment.”), available at http://www.justicepolicy.org/images/upload/0712_REP_Vortex_AC-DP.pdf.

103

104

Chapter 6

THE USE OF MANDATORY MINIMUM PENALTIES
IN SELECTED DISTRICTS
A.

INTRODUCTION

This chapter summarizes the results of the Commission staff visits to 13 judicial districts
during the period from June through August, 2011. In each of the districts, Commission staff
conducted interviews with designated representatives of the United States Attorney [hereinafter
prosecutors] and Federal Public Defender (FPD), as well as with the private defense bar member
designated as the district’s Criminal Justice Act (CJA) panel representative.547 The district
interviews were undertaken to aid the Commission in responding to those provisions of the
statutory directive requiring “an assessment of the effect of mandatory minimum sentencing
provisions under Federal law on the goal of eliminating unwarranted sentencing disparity and
other goals of sentencing,” and “a description of the interaction between mandatory minimum
sentencing provisions under Federal law and plea agreements.”
The chapter provides a summary of the responses about general practices in each district
concerning charging decisions, plea negotiations, and substantial assistance practices. Next, the
chapter describes differences in those practices identified by offense type. Finally, the chapter
summarizes the respondents’ answers to questions about how the actual practices in each district
provide support for policy views about mandatory minimum penalties.
B.

METHODOLOGY

The Commission selected the 13 districts using criteria informed by the data presented in
this report.548 The districts selected varied in geographic location, the size of the criminal
docket, the types of cases sentenced in the district, and the percentage of the criminal docket
involving convictions of offenses carrying mandatory minimum penalties. The selection criteria
ensured that each district visited had sufficient relevant experience with the use of mandatory
minimum penalties to inform the Commission’s study of the topic.
In general, each interview was conducted by a two-member team of Commission staff.
The respondents were permitted to designate the persons to be interviewed.549 The respondents
547

The FPD and CJA representatives will be collectively referred to hereinafter as defense attorneys.

548

The districts chosen for the interviews were neither randomly selected, nor meant to be representative of the
federal system with regard to mandatory minimum penalties. The districts were identified because of their
differences in the application of mandatory minimum penalties. Therefore, the results summarized in this chapter
are not necessarily representative of sentencing practices nationwide.
549

The respondents designated to meet with Commission staff varied by district. Commission staff met with the
United States Attorney and designated members of the United States Attorney’s senior management in some
districts. In others, the United States Attorney did not participate in the interviews, but instead designated one or
more members of senior management to meet with Commission staff. Similarly, the FPD personally participated in

105

were informed of the general topics to be discussed but were not given the specific questions to
be asked. The structured interview lasted approximately two hours and consisted of questions
appropriate to the respondent’s practice as either a prosecutor or defense attorney.550 The
Commission asked specific questions about practices for charging decisions, plea negotiations,
and substantial assistance, in addition to questions about whether any of these practices had
changed following Booker. Respondents were given an opportunity to state general views
regarding the use of mandatory minimum penalties in the federal criminal justice system. All
respondents were assured of confidentiality and anonymity at the outset of the interview. As a
result, no individual respondents or districts are identified in this report. This interview process
was similar to the process used by the Commission in 1990 and 1991 when compiling
information used in the 1991 Commission Report.
C.

OVERVIEW OF THE USE OF OFFENSES CARRYING MANDATORY MINIMUM PENALTIES

The overwhelming majority of the prosecutors interviewed opined that mandatory
minimum penalties are effective law enforcement tools because they encourage guilty pleas and
cooperation.551 Many also believed that long sentences triggered by mandatory minimum
penalties are a significant benefit to law enforcement because they incapacitate dangerous
offenders. Other reasons cited by some prosecutors to explain why mandatory minimum
penalties are effective law enforcement tools include deterrence, safety of the community, and
the elimination of sentencing disparity.
The majority of the defense attorneys disputed the value of mandatory minimum
penalties as a law enforcement tool. Some said that mandatory minimum penalties do not
effectuate rational sentencing policy because they undermine the judicial function and shift too
much power from the judge to the prosecutor. Others believed that mandatory minimum
penalties create disparity in sentencing because of differences in prosecutorial charging
decisions. A few thought that mandatory minimum penalties might lead to guilty pleas and
cooperation. Others acknowledged that mandatory minimum penalties might have value because
they incapacitate certain offenders.
Prosecutors were divided in their opinion on whether specific mandatory minimum
penalties were too harsh. In some districts, prosecutors did not identify any mandatory minimum
penalties as too harsh. In several others, prosecutors expressed opinions about the harshness of
the enhanced penalties for prior felony drug convictions available under 21 U.S.C. § 851. In one
district, prosecutors identified drug penalties as harsh for certain low-level offenders involved in
a large scale conspiracy. Some prosecutors mentioned multiple section 924(c) counts and one
mentioned child pornography, particularly the offense carrying a 30-year mandatory minimum
the interviews in some districts, either alone or in conjunction with other attorneys from the office. In others, one or
more supervisory attorneys served as the FPD’s designee.
550

The Commission developed two sets of questions: one for prosecutors and one for defense attorneys. The
questionnaires are provided in Appendix F of this Report.

551

A few prosecutors suggested the need for additional mandatory minimum penalties for certain types of offenses.
Others advised that mandatory minimum penalties are not necessary for all offenses.

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penalty552 as perhaps too severe.553 By contrast, the majority of defense attorneys thought that
all mandatory minimum penalties are too harsh. When they identified specific statutes, they
were typically the same statutes identified by the prosecutors. Many also listed ACCA554 as
particularly harsh.
Notwithstanding their general contrary perceptions about mandatory minimum penalties,
prosecutors and defense attorneys in each district provided very similar accounts of the practices
followed in their district.
1.

Charging Decisions

A fairly consistent theme emerged during the interviews of prosecutors about the overall
role of mandatory minimum penalties in charging decisions. The ability to charge an offense
carrying a mandatory minimum penalty appears to be a threshold consideration in determining
whether to exercise federal jurisdiction over certain types of criminal cases. Prosecutors in four
of the 13 districts told the Commission that mandatory minimum penalties play a “significant
role” in charging decisions. Prosecutors in five other districts related that they charge the “most
serious, readily provable offense,” which is defined as the offense “that generates[s] the most
substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or
count requiring a consecutive sentence would generate a longer sentence.”555 Prosecutors in the
remaining four districts asserted that although the evidence drives their charging decisions, they
file charges carrying a mandatory minimum penalty whenever applicable. All agreed that
Booker had caused few, if any, changes to the charging practices in their districts.
For the most part, defense attorneys in each of the 13 districts concurred with the overall
view that prosecutors charge an offense carrying a mandatory minimum penalty if available.
The defense attorneys in each district also did not see any change in charging decisions
following Booker. In some districts, defense attorneys noted that some changes resulted from a
change in the United State Attorney. In five districts, however, the defense attorneys related that
offenses carrying a mandatory minimum penalty were not charged consistently. Some noted that
the inconsistencies in application arose from decisions made by individual prosecutors; others
noted variations in charging practices within different divisions located in the same district. In
552

The particular statute was not identified during the interview. Buying or selling, or otherwise transferring,
children for the purpose of participating in the production of child pornography under 18 U.S.C. § 2251A(a) & (b) is
subject to a mandatory minimum penalty of 30 years; there is also a mandatory minimum penalty of 30 years for
traveling across state lines with the intent to have sex with a child under 12 years of age or for crossing state lines
and having sex with a child between the ages of 12 and 16 under certain aggravating circumstances under 18 U.S.C.
§ 2241(c).
553

As discussed in Part D of this Chapter, prosecutors may also express these views in practice through their
charging decisions and in plea negotiations.

554

18 U.S.C. § 924(e).

555

See Memorandum from John Ashcroft, Attorney General, to all Federal Prosecutors dated September 22, 2003,
regarding Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing
available at http://www.justice.gov/opa/pr/2003/September/03_ag_516.htm.

107

only one district where such inconsistencies in application were noted by defense attorneys did
the prosecutors also suggest that individual prosecutors might vary in their charging practices.
Notwithstanding the consistent theme concerning the role played by mandatory minimum
penalties in charging decisions, different factors apparently play a role in charging decisions for
different types of offenses. Those factors will be discussed in Part D of this Chapter discussing
each offense type.
2.

Plea Negotiations

Respondents were asked whether dismissing a count carrying a mandatory minimum
penalty, or charge bargaining, was part of their practice in negotiating guilty pleas. Most of the
prosecutors interviewed related that charge bargaining was the exception, rather than the rule, in
their district. Typically, the decision to dismiss a charge carrying a mandatory minimum penalty
was tied to the quality of the evidence underlying that count rather than to any deal negotiated by
the parties. Some prosecutors did identify notable exceptions to this general practice:
cooperation agreements, requests by other agencies involved in an investigation, and plea
agreements with peripheral players in drug conspiracies. However, those exceptions were
described as rare. In most of the districts, prosecutors related that the policy against charge
bargaining was applied consistently office-wide.
Prosecutors in several districts noted possible variations in charge bargaining practices as
a result of decisions made by individual prosecutors. In one of those districts, prosecutors
related that charges carrying a mandatory minimum penalty might be dismissed if that penalty
was not appropriate for the offender or if the offender made some concessions as part of the plea
negotiations. In that district, the practice appears to be tied more closely to the individual case
considerations, rather than a general policy.
Notwithstanding the general prohibition against charge bargaining in most districts,
exceptions for particular offense types were noted. For example, prosecutors reported wide
variations in the practices surrounding the filing of section 851 notices seeking enhanced
mandatory minimum penalties.556 Likewise, prosecutors reported variations in plea negotiation
practices relating to violations of 18 U.S.C. § 924(c).557 Those differing practices will be
discussed in further detail in Part D of this Chapter.
In most districts, defense attorneys also viewed charge bargaining as the exception, rather
than the rule. Most also concurred that the policy was enforced office-wide. In the rare
instances when an offense carrying a mandatory minimum penalty was dropped as part of plea
negotiations, the defense attorneys believed that individual discretion exerted by the prosecutor
556

The relevant statutes penalizing drug trafficking provide increased mandatory minimum penalties for offenders
with one or more prior felony drug convictions. See 21 U.S.C. §§ 841, 960. These enhanced penalties are not
automatically triggered, however. Prosecutors must file a notice seeking the enhanced penalties under 21 U.S.C.
§ 851 and comply with other requirements set forth in that section. See infra, Chapter 8, for further discussion of
section 851.

557

See infra, Chapter 9, for a more detailed discussion of section 924(c).

108

handling the case may have been one of the factors contributing to that decision. Lack of
evidence was identified as another factor.
In one district where the prosecutors discussed individual case factors as playing a part in
the consideration whether to charge bargain, the defense attorneys believed that such plea
agreements resulted when the offender made concessions to the government. Defense attorneys
also reported different experiences relating to charge bargaining practices for violations of 18
U.S.C. § 924(c) and the filing of section 851 notices.558 One other notable exception mentioned
by defense attorneys in another district involved the dismissal of immigration charges carrying a
mandatory minimum penalty in exchange for a plea to another less serious immigration offense.
Respondents also were asked whether appeal waivers were routinely included in written
plea agreements. In the majority of districts, prosecutors advised that an appeal waiver was a
standard provision in the plea agreement and CJA representatives agreed. Many FPD
representatives advised that they would only accept such a provision if the government provides
their client with a particular concession, such as dismissal of a charge or a stipulation to certain
guideline issues. In one district, the practice varied depending on the judge handling the case.
3.

Binding Plea Agreements – Fed. R. Crim. P. 11(c)(1)(C)

Prosecutors in seven of the 13 districts reported the use of binding plea agreements in
their districts. In four of the seven, prosecutors reported that the use of such agreements had
increased after Booker. One prosecutor explained that the practice changed to bring more
“certainty to the process.” Another suggested that the parties negotiated these types of plea
agreements to avoid protracted sentencing hearings and to reach a sentence amenable to both
sides. Conversely, one prosecutor suggested that the practice evolved because defendants
wanted to avoid increased severity.
In only one of these four districts did the defense attorneys agree with prosecutors that
Booker was the driving force for the increased use of binding plea agreements. Defense
attorneys expressed differing views about the reason for the change. In one district, defense
attorneys reported “occasional” use of such agreements and no changes after Booker. In another,
the FPD expressed the view that the judges in the district were the driving force behind the
practice because they wanted to avoid complicated sentencing hearings and appeals. The CJA
representative in that district suggested that the use of binding plea agreements increased after
Booker because the decision “took away the certainty that prosecutors liked.” Finally, in one of
these four districts, representatives from the FPD agreed that such agreements were used in the
district but did not attribute any change in the practice to Booker. The CJA representative in that
district asserted that such agreements were rarely used in the district and that Booker had not
changed the practice.
In the remaining three districts where prosecutors reported use of binding plea
agreements, they reported no change in the practice resulting from Booker. In one district,
prosecutors reported using binding plea agreements for certain types of cases, before and after
558

As noted above, this will be further discussed in Part D, infra.

109

Booker. Defense attorneys in this district generally agreed with this characterization of the
practice. In another, prosecutors reported increased use of binding plea agreements but
attributed the change to preferences expressed by judges in the district. The FPD agreed that the
change was driven by preferences expressed by the judges in their district, but the CJA
representative attributed the change to Booker, asserting that prosecutors were concerned the
judges might be unduly lenient. Finally, in one district, prosecutors reported using binding plea
agreements “judiciously’ to “create a floor for the judge” because “they worried about the judge
going below what is recommended.” Defense attorneys in this district agreed that binding plea
agreements were being used with increased frequency in the district. They viewed the new
United States Attorney, and not Booker, as the reason for this change.
Six other districts reported that binding plea agreements were rarely used in the district
and that Booker caused no change to the practice in those districts.
4.

Substantial Assistance

In all of the 13 districts, prosecutors reported that offenders who provided substantial
assistance to the government typically did so after pleading to all pending charges carrying a
mandatory minimum penalty. This practice was consistent with the charging and plea
negotiation policies already discussed. A few prosecutors reported that, in rare instances, they
might dismiss mandatory minimum penalty counts in return for the offender providing
substantial assistance to the government early in the case. Prosecutors from several other
districts also noted that they might refrain from filing a superseding indictment to add additional
charges carrying mandatory minimum penalties for offenders who had agreed to cooperate with
the government.
Once an offender provides substantial assistance, in ten of the 13 districts the prosecutors
always make a recommendation to the court concerning the extent of the reduction warranted.
Prosecutors in some districts set forth that recommendation in writing, often under seal, while
others made the recommendations orally at the sentencing hearing. In two districts, the
prosecutors make no recommendations concerning the extent of the reduction; rather they simply
describe the cooperation. In one other district, the prosecutors’ practice varies depending on the
sentencing judge; for certain judges, the prosecutors recommend the extent of the reduction and
for others, they simply describe the cooperation.
Prosecutors express their recommendation on the extent of the sentencing reduction in
one of two ways. In five districts, prosecutors express the reduction as a percentage below the
minimum of the applicable guideline range. In three others, prosecutors express the reduction as
a certain number of levels below the final offense level. In two others, prosecutors use both
methods, depending on the sentencing judge’s preference. Finally, in one district, the
prosecutors have moved away from the practice of expressing the extent of the reduction as a
percentage below the minimum of the applicable guideline range, instead recommending a
specific sentence.
In all districts where the prosecutors make a recommendation, the extent of the
recommended reduction was tied to the level of cooperation provided. Although the individual

110

United States Attorney’s offices tried to make uniform recommendations for cases in their
district, there appears to be no nationwide Department of Justice practice concerning the extent
of the reduction that should be recommended for any particular type of cooperation. For
example, in one district, wearing a wire or providing testimony at trial warranted a recommended
reduction of up to 50 percent below the applicable guideline range, while in another district,
similar cooperation warranted no more than a 30 percent recommended reduction.
The defense attorneys’ views of the substantial assistance practice in their districts were
similar to that of the prosecutors. All agreed that charge bargaining was rare. All agreed that the
government expressed recommendations, and all agreed about the manner in which such
recommendations were expressed. The defense attorneys also concurred that the extent of the
reduction was tied to the level of cooperation provided.
The only area in which prosecutors and defense attorneys differed in their answers was
when questioned about whether the court followed the prosecutors’ recommendation on the
extent of the sentence reduction. In only two of the districts visited did prosecutors and defense
attorneys agree that the sentencing judges usually sentenced in accordance with the
government’s recommendation. In two other districts where the prosecutors thought that the
court usually followed their recommendation, either the FPD or the CJA representative agreed
with that statement but not both.
In the remainder of the districts where the government made recommendations to the
court, the perceptions of the rate at which those recommendations were followed differed. In
fact, not only did the FPD and the CJA representatives rarely agree with the government on this
point, they also disagreed with one another. If the prosecutor thought that the court rarely
followed the recommendation, the defense attorney either thought that the court usually followed
the recommendation or sometimes followed the recommendation. The Commission received a
variety of answers on this point. Some indicated that the court frequently gave a greater sentence
reduction than recommended by the prosecutor; others asserted that the court gave less.
According to some, the practice varied by individual judges; others asserted that the practice
varied depending on the type of crime committed by the cooperator.
D.

SPECIFIC OFFENSE TYPES CARRYING MANDATORY MINIMUM PENALTIES

As noted above, prosecutors and defense attorneys provided a similar overall view of the
charging decisions, plea negotiation, and substantial assistance practices in their districts. They
also provided similar descriptions of the exceptions to the general rules noted for particular
offenses types. The interviews did, however, reveal wide differences in these practices between
the districts interviewed.
1.

Drug Offenses

In all 13 of the districts visited, prosecutors and defense attorneys agreed that drug
quantity controlled the decision whether to charge a drug offense carrying a mandatory minimum
penalty. Some defense attorneys expressed the view that law enforcement officers purposely
structured investigations so as to arrive at drug amounts triggering mandatory minimum

111

penalties. One prosecutor agreed that it is possible to “manipulate” a case in that manner. In one
district, prosecutors expressed a preference for prosecuting only those drug offenses with
amounts triggering a ten-year mandatory minimum penalty. In the remaining districts, no such
preference was voiced. In three of the 13 districts, prosecutors noted that they might charge a
drug offense that did not carry a mandatory minimum penalty if a weapon was involved in the
offense. One of those districts further noted that the offender’s criminal history, a request by a
law enforcement agency, or a specific federal initiative (such as Operation Weed and Seed)
might also serve as the impetus for charging the crime in federal court, even in the absence of a
quantity triggering a mandatory minimum penalty.
The 13 districts had widely disparate practices surrounding the filing of notices under
21 U.S.C. § 851 for offenders with prior felony drug convictions. In nine districts, prosecutors
related that they did not file the notice automatically in every applicable case. In each of those
districts, the prosecutors advised that they delayed filing the notice while engaging in plea
negotiations. In eight of the districts, defense attorneys agreed that the prosecutors did not
automatically file the section 851 notice. In many of these districts, defense attorneys described
the delay in filing as a “threat” to “coerce” a plea. In one of these districts, however, the defense
attorneys did not agree that the filing of the notice was delayed during plea negotiations. They
expressed the view that prosecutors in that district filed the section 851 notice in the
overwhelming majority of cases eligible for enhanced penalties.
Prosecutors in the districts where section 851 notices are not automatically filed also
mentioned various other reasons that might cause them to refrain from filing the notices. Some
prosecutors noted that the nature of the prior criminal history might impact the decision whether
to seek enhanced penalties. For example, if the offender’s prior conviction was very old or if
there was only one qualifying prior conviction, prosecutors might refrain from seeking enhanced
penalties. Some prosecutors also mentioned the nature of the prior conviction, suggesting that
even though the prior may qualify as a felony drug conviction under the applicable statute,
prosecutors do not view all qualifying priors as equally serious. Likewise, prosecutors might
decide not to seek a life sentence for having two or more qualifying priors, but rather file a
section 851 notice using only one qualifying prior conviction.
Some prosecutors noted that the notice might not be filed if they encountered difficulties
in securing documentation to prove the prior conviction. The timing of a plea was also noted as
a factor. The longer an offender waited to enter a guilty plea, the more likely the prosecutors
were to file the notice. Others suggested that the notice might not be filed if the offender had
agreed to cooperate.
In two districts, prosecutors advised that they filed the notice triggering the enhanced
penalties in every applicable case and did not withdraw the notice under any circumstances. The
defense attorneys in those districts concurred in that description of the prosecutors’ section 851
practices.
In another district, prosecutors suggested that office policy required section 851 notices
be filed in every applicable case, absent supervisory approval. These prosecutors noted,
however, that the timing of the filing was left to discretion of the individual prosecutor handling

112

the case. These prosecutors also related that they might withdraw the section 851 notice if the
offender agreed to provide substantial assistance. For example, in cases where the offender was
eligible for a life sentence under section 851, the prosecutor might withdraw the notice triggering
the life sentence, and instead file a notice that doubled the applicable mandatory minimum
penalty, in return for a guilty plea and substantial assistance. In this district, the FPD was of the
opinion that the prosecutors rarely failed to file applicable section 851 notices. The CJA
representative thought the practice varied more widely, depending upon the individual prosecutor
handling the case.
In contrast to those districts in which section 851 notices are always filed, in one district,
the prosecutors advised that they rarely filed the notices. The prosecutors in this district
described the enhanced penalties as a “hammer for the worst offenders,” but otherwise too harsh
for low-level drug offenders. Prosecutors did advise, however, that section 851 notices would be
filed in any case where the offender insisted on going to trial. Defense attorneys agreed that the
prosecutors filed section 851 notices infrequently, although the FPD asserted that the possibility
of filing was often used to negotiate a guilty plea.
Any decision not to seek the enhanced penalties based upon any of the aforementioned
factors was a matter of prosecutorial discretion, exercised in no consistent manner. In some
districts, the practices varied from division to division. In others, the identity of the individual
prosecutor handling the matters was central to the decision.
2.

Firearms Offenses – 18 U.S.C. § 924(c) Violations

The Commission’s interviews also revealed divergent practices relating to the filing of
charges under 18 U.S.C. § 924(c), involving the use of a firearm during a crime of violence or
drug trafficking felony.559 In the majority of districts, prosecutors always charge a single
violation of this statute, when provable, and rarely dismiss the charge once it is filed. This was
generally consistent with the charging and plea negotiation practices described in each district.
In one district, however, prosecutors advised that they always file the charge when the
underlying offense is a crime of violence, but often refrain from immediately filing the charge if
the underlying offense is a drug trafficking crime. In another, defense attorneys suggested that
some prosecutors might be amenable to dismissing a section 924(c) count in a drug case, and
account for the firearm through the dangerous weapon enhancement in §2D1.1.
The charging practices in each district concerning multiple violations of section 924(c)
were notably different from the overall charging practices discussed above. Likewise, districts
varied from one another in the practices concerning filing of multiple section 924(c) violations.
In most districts, the prosecutors generally charged multiple section 924(c) violations in violent
offenses. Some noted that they file multiple section 924(c) violations in drug cases when a
particular offender possessed a firearm on separate occasions. Prosecutors in one district said
that the decision depends on the type of case, noting domestic terrorism cases as a type of

559

This offense carries a consecutive penalty of at least five years; second and subsequent violations are subject to a
25-year consecutive penalty. See infra, Chapter 9.

113

offense always warranting the filing of multiple charges. Prosecutors in another district advised
that supervisor approval was required to charge more than two section 924(c) violations.
By contrast, in two districts prosecutors advised that they rarely charge multiple
violations. In one of those districts, prosecutors described the second 924(c) count as a “nuclear
hammer.” Defense attorneys in these districts concurred with this description of the practice
concerning multiple section 924(c) violations.
Defense attorneys in most districts generally agreed that the charging practices for
multiple section 924(c) violations were somewhat different than the districts’ general charging
practices. Many noted that the decision not to charge multiple counts immediately was often tied
to plea negotiations. Some noted that it varied by division and prosecutor.
The charge bargaining practices for multiple section 924(c) counts were inconsistent.
Prosecutors in some districts would dismiss all but one section 924(c) count in exchange for a
guilty plea. Others require a plea to at least two section 924(c) counts. In another, prosecutors
require offenders that they consider especially violent to plead to at least three counts. Not only
did the practices differ among districts, but the respondents interviewed also noted that the
practice sometimes varied within districts, either by division or by individual prosecutor.
3.

Child Pornography Offenses – Possession vs. Receipt

In most of the districts visited, prosecutors report that they typically charged, when
applicable, receipt of child pornography,560 which carries a mandatory minimum penalty, instead
of possession of child pornography,561 which does not. Nevertheless, the Commission’s
interviews identified some inconsistencies in charging practices and plea negotiations relating to
child pornography.
In a few districts, if an offender offers to plead guilty to a child pornography possession
charge early in the case, receipt charges will be either dismissed or never filed. In at least one
other district, if an offender successfully passes a polygraph examination establishing that he had
taken no additional steps beyond viewing child pornography (i.e., he had not touched a child),
that offender would be permitted to plead to possession of child pornography. In yet another,
prosecutors agree to enter into a binding plea agreement allowing the offender to plead guilty to
a possession charge and requiring a specific sentence, if the forensic examination of the
offender’s computer would be considerably delayed if the case were to go to trial. Some defense
attorneys perceived that these charging practices and plea negotiations varied by division and
even by individual prosecutor.

560

18 U.S.C. §§ 2252(a) (1)–(3), 2252A(a)(2).

561

18 U.S.C. §§ 2252(a)(4), 2252A(a)(5).

114

4.

Aggravated Identity Theft – 18 U.S.C. § 1028A Violations

In approximately half of the 13 districts, violations of section 1028A562 were “the
exception to the general rule that the prosecutors charged the most serious, readily provable
offense.” In those districts, prosecutors offered various explanations for their charging practices.
Some thought the offense was more difficult to prove than other types of fraud offenses. Others
used the charge only in identity theft cases involving aggravating factors. By contrast, others
only filed the charge in cases involving small loss amounts, in order to ensure a prison sentence.
Prosecutors in most districts rarely charged multiple counts of section 1028A violations. In
instances where multiple counts were charged, prosecutors expressed a willingness to dismiss
second or subsequent counts in exchange for a guilty plea.
E.

MANDATORY MINIMUM PENALTIES IN PRACTICE

During the interviews, the Commission asked a series of questions designed to obtain
information about whether the practices in the districts concerning mandatory minimum
penalties provided support for any of the policy arguments discussed in Chapter 5 of this report.
This section presents the opinions expressed by respondents during the interviews.
1.

Defendants’ Prior Knowledge about Mandatory Minimum Penalties

The Commission asked defense attorneys whether their clients were aware of mandatory
minimum penalties. 563 Most defense attorneys categorically stated that their clients had no
knowledge of the possible mandatory minimum penalties applicable to their crime prior to its
commission. One defense attorney noted that the occasional client in an urban area might have
some awareness of mandatory minimum penalties, and another mentioned possible awareness of
crack cocaine penalties. Others described their clients’ awareness of penalties as infrequent.
Only recidivist offenders with previous experience in federal court were identified as a category
of offenders who might be aware of mandatory minimum penalties. One defense attorney also
described the public’s general lack of knowledge about these penalties.
2.

Incentive to Plead Guilty

The Commission asked prosecutors and defense attorneys to identify the best incentive
that the government could offer an offender to induce a guilty plea. Most prosecutors did not
identify the mandatory minimum penalty as the best incentive to induce a plea. Rather, the

562

This offense carries a consecutive two-year penalty. See infra, Chapter 11.

563

The precise question asked was “How often are your clients aware of the mandatory minimum penalties
applicable to their criminal conduct before their apprehension or other contact with the criminal justice system?"
See Appendix F of this Report. Prosecutors were not asked this question. Nonetheless, prosecutors in at least four
districts seemed to think that offenders are aware of mandatory minimum penalties before the commission of an
offense. For example, one prosecutor said that a marijuana offender would grow only 98 plants, instead of 100, to
avoid the mandatory minimum penalty. Another suggested that charging a 924(c) count would result in drug
organizations refraining from having firearms in the proximity of drugs.

115

strength of the evidence or a sentence reduction were the two incentives most frequently
identified by prosecutors.
The defense attorneys agreed that the strength of the evidence and a sentence reduction
were among the best incentives offered by the government to induce a guilty plea. Some also
noted that avoiding the application of a mandatory minimum penalty (such as section 924(c),
section 851, or receipt of child pornography) also provided offenders with a strong incentive to
plead guilty.
3.

Trial Rates Driven by Mandatory Minimum Penalties

The Commission asked defense attorneys whether some clients chose to go to trial
because of charges carrying mandatory minimum penalties. The overwhelming majority said
that this was the case, particularly for offenders who are not eligible for safety valve relief or
who were exposed to heightened mandatory minimum penalties.564
4.

Impact on Willingness to Provide Substantial Assistance

The Commission asked prosecutors and defense attorneys whether being charged with a
mandatory minimum penalty influenced an offender’s willingness to cooperate. The majority of
prosecutors thought that being charged with a mandatory minimum penalty did influence an
offender’s willingness to cooperate. Although most agreed that the guidelines also had some
influence, only a few thought that the guidelines had the same impact as a mandatory minimum
penalty for inducing an offender to provide substantial assistance to the government.
The FPD representatives disagreed about the impact of mandatory minimum penalties on
their clients’ willingness to provide substantial assistance. Most thought that other factors drove
the decision and those factors varied for each individual client. Most also thought that a
mandatory minimum penalty and the guidelines factored equally into their clients’ decision to
provide substantial assistance to the government.
Most of the CJA representatives thought that being charged with a mandatory minimum
penalty had an influence on their clients’ willingness to cooperate. Most also agreed that a
mandatory minimum penalty and the guidelines factored equally into their clients’ decision to
provide substantial assistance. Many also related that others factors also drove the decision and
that the weight of any particular factor varied by client.

564

Defense attorneys were asked: “Do some defendants choose to go to trial because of charges carrying
mandatory minimum penalties when they would otherwise have pleaded guilty if a charge not carrying a mandatory
minimum had been brought?” See Appendix F of this Report. Although not asked this specific question,
prosecutors in some districts agreed that they tried cases involving heightened mandatory minimum penalties more
often.

116

5.

False Testimony by Cooperators

The Commission asked prosecutors and defense attorneys whether they had any personal
experience with cooperators providing testimony later found to be false by the court. In 11 of the
13 districts, prosecutors were unable to identify any instance where a cooperator’s testimony was
found to be false.565 In two districts, prosecutors identified one instance each where this had
occurred. Prosecutors attribute the rarity of such an event to the level of corroboration required
when a cooperator testifies.
Prosecutors in three districts identified one instance each where they refused to file a
substantial assistance motion on behalf of a cooperating witness who had testified at trial.566 In
each of the three instances the prosecutors thought that the offender lied under oath, either by
recanting or contradicting earlier statements. Most prosecutors advised that they often did not
call a cooperating witness at trial because they thought the cooperating witness was not being
completely truthful.567
No defense attorney identified an instance where their own client offered testimony at
trial later found to be false by the court.568 Although defense attorneys sometimes believed that
cooperators had offered false testimony against their clients, only one cited an actual case where
the court determined that a cooperator’s testimony was not credible. Another cited an instance
where the client was acquitted but mentioned that the cooperator still received substantial
assistance relief pursuant to §5K1.1. Most defense attorneys related instances where their
clients’ proffered testimony was not accepted because the government attorneys were not
convinced that it was truthful.
6.

Safety Valve

The Commission inquired about prosecutors’ and defense attorneys’ views on whether
the safety valve was working as intended in their district. Most prosecutors thought that the
safety valve worked well. Some did express negative views, however. Prosecutors in one
565

Prosecutors were asked the following: “Critics of mandatory minimum penalties suggest that they lead to false
testimony by cooperators seeking relief from those penalties. Have you had any experiences with cooperators
offering testimony later found to be false? If so, please describe that experience.” See Appendix F of this Report.

566

Prosecutors were asked the following: “Have you ever declined to file a substantial assistance motion because
you determined that the cooperator testified falsely?” See Appendix F of this Report.
567

Prosecutors were asked the following: “Have you ever declined to use testimony offered by a cooperator
because you had concerns about the veracity of the testimony being offered?" See Appendix F of this Report.

568

Defense attorneys were asked three questions about possible false testimony: 1) “Critics of mandatory minimum
penalties suggest that they lead to false testimony by cooperators seeking relief from those penalties. Have you had any
clients who cooperated with the government and provided testimony that was later found to be false? If so, please describe
that experience”; 2) “Have you ever represented a client for whom the government declined to file a substantial assistance
motion because it determined that your client testified falsely? If so, please describe that experience”; and 3) “Have you
ever represented a client who offered to testify as a cooperating witness, and the government has refused to accept that offer?
If so, please describe that experience.” See Appendix F of this Report.

117

district described the safety valve as the “worst thing ever” because it took away offenders’
incentive to cooperate. In another, prosecutors described a “huge flaw” in the operation of the
safety valve: some offenders eligible for enhanced penalties qualified for safety valve because
their prior convictions were too old to be scored under the guidelines’ criminal history rules. In
various districts, prosecutors identified disputes over whether an offender had “truthfully
provided to the Government all information and evidence”569 about the offense, referred to as the
fifth prong of the safety valve. A few prosecutors expressed reservations that low-level
offenders with a minor criminal history were sometimes excluded because of their criminal
history; others thought the bright line rules regarding criminal history were appropriate.
For the most part, defense attorneys thought that the safety valve worked well for
qualifying offenders. In fact, one defense attorney described it as a “godsend.” Many agreed
with prosecutors that the parties frequently litigated the fifth prong and they expressed
dissatisfaction that some prosecutors treat the truthful disclosure requirement as a lesser form of
substantial assistance. Most defense attorneys view this statutory requirement as less onerous
and report that some, but not all, prosecutors share this view.
Disqualification due to criminal history issues was the primary area of concern noted by
defense attorneys. Most opined that the safety valve could be improved by expanding it to
include at least one additional criminal history category. Defense attorneys echoed concerns
expressed by some prosecutors about low-level offenders with a minor criminal history
sometimes being ineligible for relief under the safety valve because of their criminal history. A
number of defense attorneys suggested that the safety valve should not be limited to drug crimes
and should be expanded to include different types of crimes.

569

18 U.S.C. § 3553(f)(5).

118

Chapter 7

STATISTICAL OVERVIEW OF MANDATORY MINIMUM PENALTIES
A.

INTRODUCTION

The statutory directive requires the Commission to provide a detailed empirical research
study of the effect of mandatory minimum penalties under Federal law. As part of that study,
this chapter provides a statistical overview of the application of mandatory minimum penalties
for all offenses. First, this chapter provides a description of the methodology used for the
analyses in this report. Second, this chapter presents general comparisons between offenders in
the overall federal population, offenders convicted of an offense under a statute carrying a
mandatory minimum penalty, offenders who obtained relief from application of a mandatory
minimum penalty, and offenders who remained subject to a mandatory minimum penalty at the
time of sentencing. Third, this chapter presents data about sentencing outcomes involving the
application of mandatory minimum penalties. Discussion of the four types of offenses carrying
mandatory minimum penalties are presented in Chapters 8 through 11 of this report.
The statutory directive also directs the Commission to provide an assessment of the
impact of mandatory minimum sentencing provisions on the federal prison population. Part E of
this chapter provides an overall assessment of the prison impact of statutes carrying mandatory
minimum penalties, while the prison impact of specific types of offenses carrying mandatory
minimum penalties are discussed in Chapters 8 through 11 of this report. Finally, this chapter
sets forth findings with respect to the overall application of mandatory minimum penalties.
B.

METHODOLOGY

The majority of data analyzed in this report is taken from the Commission’s fiscal year
2010 data file.570 In fiscal year 2010, the Commission received sentencing information on
83,946 individual offenders. 571 The Commission received sufficient documentation for analysis
in 72,878 cases.572 These 72,878 cases were used in the analysis. In addition, the Commission,
despite the lack of full documentation, included another 254 cases in which the sole statute of
conviction was 18 U.S.C. § 924(c) and 107 cases in which the only statute of conviction was
570

Some of the analyses in this report also use the Commission’s data files from fiscal years 1991 through 2009.
The same methodology applied to selecting cases for analysis in all years.

571

Sentencing courts are required to send five sentencing documents to the Commission, see supra note 5.

572

The Commission excluded 11,068 cases because those cases lacked the complete documentation needed for all
the analyses performed. In 8,148 of those cases, the majority of which were immigration cases from border districts,
the court waived the presentence investigation report. As a result, those cases lacked the documentation needed for
the analysis, including guideline application and demographic information. The Commission excluded other cases
in which the statement of reasons form and the presentence investigation report contained conflicting information
concerning guideline application because the Commission could not ascertain how the Chapter 2 guideline was
applied. Finally, the Commission excluded other cases lacking documentation concerning the statutes of conviction
because the Commission could not determine whether those cases involved a conviction of an offense carrying a
mandatory minimum penalty.

119

18 U.S.C. § 1028A,573 bringing the total number of cases used in the analysis to 73,239 (which is
87.2% of all cases reported to the Commission in fiscal year 2010). Because the analysis for this
report was limited to these cases, the numbers reported in this report differ from those reported in
the Commission’s 2010 Sourcebook of Federal Sentencing Statistics, which involves a larger
dataset.
For the analyses discussed in this report, an offender was considered to have been
convicted of an offense carrying a mandatory minimum penalty if any statute of conviction in the
case contained a provision requiring imposition of a minimum term of imprisonment. This
determination was made regardless of whether the offender was ultimately sentenced without
regard to the mandatory minimum penalty through operation of the statutory safety valve
provision or through a substantial assistance motion made by the government. In fiscal year
2010, 27.2 percent of all cases (19,896 of 73,239 cases) involved a conviction of an offense
carrying a mandatory minimum penalty.
The Commission also obtained court documentation on the reduction of sentences for
substantial assistance to the government after sentencing pursuant to Federal Rule of Criminal
Procedure 35(b).574 In fiscal year 2010, the Commission received information on 2,006
offenders who received relief under Rule 35(b) from application of a mandatory minimum
penalty. These 2,006 cases were added to the 73,239 cases in which the offender was initially
sentenced in fiscal year 2010 for the purpose of the trend analyses presented in this report575
about rates at which offenders obtained relief from the imposition of a mandatory term of
imprisonment.576

573

The respective guideline provisions applicable to those offenses provide that the guideline sentence is the
mandatory minimum penalty prescribed in the statute, and further provide that Chapters Three and Four of the
Guidelines Manual do not apply to the offense. See USSG §§2B1.6 (Aggravated Identity Theft); 2K2.4 (Use of
Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes). Thus, the
Commission can determine the relevant guideline application information in those cases based solely on the statute
of conviction.
574

Rule 35(b) authorizes the court to reduce a sentence below the applicable mandatory minimum term upon the
government’s motion when the defendant provides substantial assistance post-sentencing. Because a defendant may
be sentenced and subsequently resentenced pursuant to Rule 35(b) in different fiscal years, the Commission
maintains a separate data file to collect resentencing data. This data is contained in the Commission’s 2010
Resentencing data file.

575

See, e.g., Figure 7-9.

576

As noted above, the Commission maintains a separate data file to collect resentencing data because an offender
may be sentenced and subsequently resentenced in different fiscal years. The Commission included the offenders
who received relief under Rule 35(b) during fiscal year 2010 in the analysis performed for this report to provide
more complete information about the number of offenders who received relief from a mandatory minimum penalty
by any provisions, whether at the time of sentencing or afterwards. The Commission recognizes that inclusion of
these offenders in fiscal year 2010 data may be over or under inclusive of the relief that eventually may be obtained
by all offenders sentenced in that fiscal year. The Commission concluded that reporting only on offenders who
received relief from a mandatory minimum penalty pursuant to section 3553(e) would under-represent the number of
offenders who received such relief, because in some districts, the practice is to file substantial assistance motions
after the original sentencing.

120

The analysis of sentencing trends in this report relies exclusively on Commission data.577
Except where otherwise noted, the Commission collected all the data reported in this report.578
For the prison impact analysis presented throughout this report, the Commission obtained
prisoner data from the BOP to compare to Commission data. By merging the two datasets, the
Commission was able to create snapshots of the federal prison population at different points in
time.
C.

STATISTICAL OVERVIEW

In fiscal year 2010, immigration, drugs, firearms, and fraud offenses accounted for 82.9
percent of the 73,239 cases included in this analysis. More than one-quarter of the cases in
which an offender was sentenced in fiscal year 2010 (27.2%, n=19,896) involved a conviction of
an offense carrying a mandatory minimum penalty. See Figure 7-1. More than half (53.4,
n=10,605) of the 19,896 offenders convicted of an offense carrying a mandatory minimum
penalty remained subject to the mandatory minimum penalty at sentencing. See Figure 7-2.
This figure represents 14.5 percent of the 73,239 cases included in this analysis.
Figlll't 7 - 1
Offtlldtl'S COlI\icttd of flll Offtnst Cfll'l')illg fl Mfllldfllol')' i'.Iinimum Ptllflily
Fiscfll Ytfll' 2010
:\hndaro~'

1\1.8\16
nl~

"'0

:\I"ndaro~'

53.237
n.8~

577

The 1991 Commission Report also included data about sentencing trends which relied on alternative sources of
data for much of the trend analysis presented. Those sources included the Federal Probation Sentencing and
Supervision Information System of the Administrative Office of the United States Courts and the Federal Judicial
Center. The Commission relied on these alternate sources in 1991 because portions of the periods reported preceded
the Commission’s existence.
578

The Commission collects sentencing data based on the offenses for which the offender was actually convicted
and the determinations made by the court at sentencing. Accordingly, the Commission cannot determine using
available data whether any charged counts were dismissed without a conviction, nor can it readily determine
whether the government exercised its discretion not to charge an offender with additional offenses that could have
been supported by the facts of the case.

121

Figlll't 7 - 2
Orrtlldtl's Rtlitnl! of llll Orrtnst Clll'l'ying II ;\IlllJ(llllol'Y Minimum Ptllllity
FiSflll Ytlll' 2010
Rollof

\1.261
46.6%

:"'0 Rolief

10.605
53,4%

In fiscal year 2010, more than three-quarters (77.4%) of the 19,896 defendants convicted
of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking
offense, and 11.9 percent were convicted of a firearms offense.579 Convictions under just four
statutes involving drug trafficking and firearms580 accounted for the majority of such convictions
(71.6%).581 Other statutes carrying mandatory minimum sentencing provisions involved child
pornography, aggravated identity theft, and violent offenses.
1.

Demographic Characteristics

Table 7-1 presents the demographic characteristics of all 73,239 offenders included in
this analysis. The table also compares this information to the demographic characteristics of the
19,896 offenders convicted of an offense carrying a mandatory minimum penalty and to the
10,605 offenders who remained subject to a mandatory minimum penalty at sentencing.
As shown in Table 7-1, Hispanic offenders are the largest portion of the federal offender
population, slightly less than half of all offenders (48.3%, n=35,064). White offenders are the
next largest group, at 27.4 percent (n=19,935), followed by Black offenders (20.7%, n=15,041)
and Other Race offenders (3.6%, n=2,581).582 Slightly more than half of all offenders (55.9%,

579

See Table D-2 (Mandatory Minimum Status in Each Primary Offense Category (Fiscal Year 2010)) in Appendix
D of this Report.

580

21 U.S.C. §§ 841, 844, 960; 18 U.S.C. § 924(c).

581

See Table D-3 (Number of Convictions and Mean Sentence for Mandatory Minimum Statutes (Fiscal Year
2010)) in Appendix D.

582

The Commission obtains data on the race and ethnicity of the offender from the presentence report. The “Other
Race” category includes offenders of Native American, Alaskan Native, and Asian or Pacific Islander origin. In
fiscal year 2010, there were 2,581 offenders identified as “Other” race offenders: 1,360 (52.7%) were of
Asian/Pacific Islander origin, 1,050 (40.7%) were Native American/Alaskan Native, and 171 (6.6%) were of other
origin.

122

n=40,893) are United States citizens. The great majority of offenders are men (87.9%,
n=64,377).
Hispanic offenders also account for the largest group of offenders (38.3%, n=7,601)
convicted of an offense carrying a mandatory minimum penalty. Blacks are the next largest
group, at 31.5 percent (n=6,261), followed by White offenders (27.4%, n=5,447) and Other Race
offenders (2.7%, n=543). United States citizens account for 73.6 percent (n=14,639) of those
offenders convicted of an offense carrying a mandatory minimum penalty. More than 90 percent
(90.3%, n=17,975) of the offenders were men.
Hispanic offenders also account for the largest group of offenders (45.7%, n=4,237) who
are convicted of an offense carrying a mandatory minimum penalty but are relieved of the
penalty at sentencing. This is mainly due to the large number of Hispanic offenders who are
relieved due to safety valve, which is discussed in more detail later in this chapter. United States
citizens account for over 60 percent (63.5%, n=5,897) of offenders who are relieved of a
mandatory minimum penalty and males are a large percentage of the same group (86.4%,
n=8,032).
As discussed above, some offenders convicted of an offense carrying a mandatory
minimum penalty are not subject to such a punishment at sentencing because they have received
relief as a result of either substantial assistance or the safety valve. Of all offenders convicted of
an offense carrying a mandatory minimum punishment and who remained subject to that penalty
at sentencing, 38.5 percent were Black (n=4,076), 31.8 percent were Hispanic (n=3,364), and
27.5 percent (n=2,913) were White. In addition, 82.5 percent (n=8,742) of all such offenders
were United States citizens, and 93.8 percent were men (n=9,943).
As seen from this data, although Hispanic offenders comprise the largest proportion of
offenders convicted of an offense carrying a mandatory minimum penalty, Black offenders are
represented more heavily in both the populations of offenders convicted of an offense carrying a
mandatory minimum penalty and offenders subject to a mandatory minimum penalty at
sentencing compared to their proportion in the offender population. Similarly, United States
citizen offenders and male offenders each constitute a greater proportion of the populations of
offenders convicted of an offense carrying a mandatory minimum penalty and those subject to a
mandatory minimum penalty than their respective portions of the overall offender population.
The Commission’s analysis of this data suggests that these outcomes may be associated with the
type of offense associated with certain demographic groups. Additional analysis of these
differences will be discussed in more detail later in this report in the chapters discussing those
offenses.583 These chapters also include additional analysis concerning offenders who obtained
relief from the mandatory minimum penalty.

583

See infra Chapters 8–11.

123

Table 7-1
Demographic Characteristics of Offenders
Fiscal Year 2010

Total (# of offenders)

All Offenders

Convicted of a
Statute Carrying
a Mandatory
Minimum Penalty

Relieved of
Application of
Mandatory
Minimum Penalty

Subject to a
Mandatory
Minimum Penalty
at Sentencing

73,239

19,896

9,291

10,605

Race of Offender (Percent)
White

27.4

27.4

27.3

27.5

Black

20.7

31.5

23.6

38.5

Hispanic

48.3

38.3

45.7

31.8

3.6

2.7

3.4

2.1

Other

Citizenship of Offender (Percent)
United States Citizen

55.9

73.6

63.5

82.5

Non-Citizen

44.1

26.4

36.5

17.5

Gender of Offender (Percent)
Male

87.9

90.3

86.4

93.8

Female

12.1

9.7

13.6

6.2

2.

Criminal History

Table 7-2 provides an overview of the criminal history categories for all offenders,
offenders convicted of an offense carrying a mandatory minimum penalty, offenders relieved
from a mandatory minimum penalty, and offenders subject to a mandatory minimum penalty at
sentencing. As shown in that table, the criminal history of the offenders convicted of an offense
carrying a mandatory minimum penalty closely mirrors that of the overall offender population.
However, the criminal history of those offenders who remained subject to a mandatory minimum
penalty at sentencing has a different composition, with higher percentages of offenders in the
more serious criminal history categories. Thus, offenders in Criminal History Category I were
more likely to be relieved of the mandatory minimum penalty than offenders in higher criminal
history categories, and offenders in higher criminal history categories were less likely to be
relieved.
More offenders were assigned to Criminal History Category I than any other criminal
history category in all three groups. Those offenders appeared at a slightly higher rate in the
population of offenders convicted of an offense carrying a mandatory minimum penalty (49.0%,
n=9,702) as compared to the population of all offenders (43.9%, n=32,141). However, the
portion of offenders in Criminal History Category I dropped to 31.9 percent (n=3,361) of those
124

offenders subject to a mandatory minimum penalty at sentencing,584 most likely because some
Criminal History Category I offenders were drug offenders who obtained relief from application
of the mandatory minimum penalty due to the safety valve. By contrast, offenders in Criminal
History Category VI, the highest category, represented 14.0 percent (n=2,784) of the population
of offenders convicted of an offense carrying a mandatory minimum penalty but 19.1 percent
(n=2,013) of the population of offenders subject to a mandatory minimum penalty at sentencing.
Table 7-2
Criminal History of Offenders
Fiscal Year 2010

All
Offenders
Total (# of offenders)

Convicted of a
Statute
Carrying a
Mandatory
Minimum
Penalty

73,239

Relieved of
Application of
Mandatory
Minimum
Penalty

19,896

Subject to a
Mandatory
Minimum
Penalty at
Sentencing

9,291

10,605

Criminal History Category (Percent)
I

43.9

49.0

68.3

31.9

II

12.4

11.2

7.6

14.4

III

16.6

13.5

8.8

17.7

IV

10.5

7.7

4.4

10.6

V

6.1

4.6

2.6

6.3

VI

10.4

14.0

8.3

19.1

3.

Guilty Pleas and Trials

Offenders convicted of an offense carrying a mandatory minimum penalty plead guilty at
a slightly lower rate than offenders who were not convicted of an offense carrying a mandatory
minimum penalty. Of the 19,896 offenders convicted of an offense carrying a mandatory
minimum penalty in fiscal year 2010, 94.1 percent (n=18,715) pled guilty and 5.9 percent
(n=1,181) were convicted after a trial. By comparison, of the offenders convicted of offenses not
carrying any mandatory minimum penalty, 97.5 percent (n=51,928) pled guilty and 2.5 percent
(n=1,309) were convicted after a trial. See Figure 7-3.

584

Of these 3,361 offenders in Criminal History Category I who remained subject to a mandatory minimum penalty
at the time of sentencing, 56.1% (n=1,885) were drug offenders, 18.3% (n=615) were child pornography offenders,
10.4% (n=350) were firearms offenders convicted of a violation of 18 U.S.C § 924(c), 8.5% (n=286) were identity
theft offenders convicted of a violation of 18 U.S.C § 1028A, and 6.7% (n=225) were sexual abuse offenders.

125

Figure 7-3
Plell llud Trial Rlltes by l\llllldlltory l\Iiuimmn Sllltus
FiSflll Yell!' 2010
With :.\Ialldatorr :.\linimnm
Plu

18.715
9H%

TI'ul
1,181

5.9%

Willlont :.\Iandarol·y :.\Iiuimum

TIi.1
1,3119

2.5%

As illustrated in Figure 7-4, there is a diminishing effect on the guilty plea rate as the term
of imprisonment required by mandatory minimum sentencing provisions increases. That is, the
longer the mandatory minimum penalty an offender faces, the less likely he or she is to plead
guilty. In fiscal year 2010, 96.9 percent (n=7,687) of offenders convicted of an offense carrying
a five-year mandatory minimum penalty pled guilty. This compares to 95.1 percent (n=7,707) of
offenders convicted of an offense carrying a ten-year mandatory minimum penalty, 85.8 percent
(n=166) of offenders convicted of an offense carrying a 15-year mandatory minimum penalty,
86.7 percent (n=628) of offenders convicted of an offense carrying a 20-year mandatory
minimum penalty, and 63.9 percent (n=129) of offenders convicted of an offense carrying a
mandatory minimum penalty of life. See Figure 7-4.

126

Figul'e 7-4
Plea and Tlial Rates of Offeuders by Length of Mandatol')' 1\Iiuilllllln Penal!)'
Fiscal Year 2010
10 Yt"ar :.\Iandatorr :.\linimum

Fin Yt"al' :.\Iandatorr :.\linimnm
Plu
7,687
96.9%

PI..
7.707
95.1%

TI'ial
395

T,.ial
~4!

H%

3.1%

20 Yt"ar :.\Ialldarory :.\linimum

Lift" :.\lalldatory :.\linimllm

PI..

Tt'ial

6~8

"

86,7%

36.1%
PI ..
129
63,9%

Trio'l

"

13.3%

Many of the offenders convicted of an offense carrying a five- or ten-year mandatory
minimum penalty were eligible to be sentenced without regard to the mandatory minimum
penalty by operation of the statutory safety valve.585 Offenders who were eligible for safety
valve relief pled guilty at a higher rate (99.4%, n=5,527) than those offenders who were not
eligible for safety valve relief (94.6%, n=8,561). See Figure 7-5.

585

Drug offenders convicted of an offense carrying a 20-year mandatory minimum penalty are generally ineligible
for the safety valve because they have a prior felony drug conviction, see 21 U.S.C. §§ 841, 960. In those instances
in which a prior felony drug conviction may be too old to be scored under the criminal history rules in Chapter 4 of
the Guidelines Manual, a drug offender convicted of an offense carrying a 20-year mandatory minimum penalty
might qualify for the safety valve.

127

ri~un

7-5
Pl.. and Trnl Raf" for Offelld..., "ilb a fin 01' Tell Year :\lalldalory Uinimum Ptnally
By Softly '-aln Sl'lll'
fi,ul Year !lliO
~.

4.

Geographic Variations

Commission data reveals geographic differences in the rates at which mandatory
minimum penalty provisions apply, much of which is related to differences in caseloads around
the country.586 More than half (55.4%, n=11,015) of the 19,896 cases involving mandatory
minimum penalties were brought in the district courts in four circuits. Of the 19,896 cases in
fiscal year 2010 that involved a conviction of an offense carrying a mandatory minimum penalty,
3,178 (16.0%) were in the Fifth Circuit, 3,066 (15.4%) were in the Ninth Circuit, 2,401 (12.0%)
were in the Fourth Circuit, and 2,370 (11.9%) were from district courts in the Eleventh Circuit.
By way of comparison, 61.2 percent of all federal criminal cases in fiscal year 2010 came from
the district courts in those four circuits.587
When viewed at the district level, only three districts reported more than 750 cases
involving a conviction of an offense carrying a mandatory minimum penalty: Southern Texas
(5.7%, n=1,129), Western Texas (5.3%, n=1,061), and Southern Florida (3.9%, n=776). An
additional four districts reported at least 500 cases involving a conviction of an offense carrying
a mandatory minimum penalty: Southern California (3.6%, n=710), Middle Florida (3.3%,
n=649), Arizona (2.7%, n=540), and South Carolina (2.5%, n=502). Thus, those seven districts
586

See Table D-1 (Mandatory Minimum Status of Cases in Each Circuit and District (Fiscal Year 2010)) in
Appendix D.

587

See id.

128

accounted for 27.0 percent (n=5,367) of the 19,896 cases involving a conviction of an offense
carrying a mandatory minimum penalty in fiscal year 2010. By way of comparison, 38.1 percent
of all federal criminal cases in fiscal year 2010 came from those seven districts. The majority of
the 94 districts (69 or 73.4%) reported fewer than 250 cases involving convictions under a statute
carrying a mandatory minimum penalty.588 See Figure 7-6.
Figul'e 7-6
"'umbel' of Offendel's Comicte(1 of an Offellse CflI'l'~ing a Mandatol.,- Minimnm Penalry"
By Distlict
Fiscal YeaI' 2010

_.t._

="0
_ " . to

••,

85°'°"
5. . to " .

..

"0 ,. "'"

"

Cases involving a conviction of an offense carrying a mandatory minimum penalty
comprised varying percentages of the districts’ criminal case docket. In ten districts, more than
50 percent of the cases involved convictions of an offense carrying a mandatory minimum
penalty. These districts were: Puerto Rico (62.9%, n=491), Southern Indiana (55.8%, n=182),
Minnesota (54.3%, n=261), Southern Iowa (54.2%, n=227), Western Virginia (53.7%, n=191),
Hawaii (51.9%, n=82), Central Illinois (51.9%, n=191), Eastern Tennessee (51.4%, n=420),
Western North Carolina (50.5%, n=251), and Eastern North Carolina (50.1%, n=350).589 In
contrast, in 12 other districts, less than 20 percent of all cases involved convictions under a
statute carrying a mandatory minimum penalty. These districts were: New Mexico (9.1%,
n=333), Arizona (11.0%, n=540), Southern Texas (13.7%, n=1,129), Colorado (14.3%, n=72),
Northern Mariana Islands (14.8%, n=4), Western Texas (16.1%, n=1,061), Middle Pennsylvania
(16.9%, n=82), South Dakota (17.8%, n=71), Utah (17.9%, n=143), Western Arkansas (18.0%,
n=46), Western Oklahoma (18.4%, n=52), and Nevada (19.7%, n=116).590 See Figure 7-7A.
588

See id.

589

Id.

590

Id.

129

Much of the variation in rates of application may be attributed to differences in the
composition of the caseloads in those districts. For example, in the ten districts applying
mandatory minimums at the highest rates, drug and firearms offenses made up a significant
portion of these districts’ caseload (49.4% of the cases involved drugs and 17.4% involved
firearms).591 In the 12 districts reporting the lowest application rates, more than half of the cases
in those courts were immigration offenses (60.5%) and less than one-third were drug or firearms
offenses (23.6% and 4.2%, respectively).592
Figure 7-7B illustrates how immigration offenses affect the proportion of cases involving
a mandatory minimum penalty in certain districts. Immigration offenses comprise a significant
proportion of certain districts’ criminal dockets, but the most common immigration offenses
rarely carry mandatory minimum penalties.593 Excluding immigration offenses from the analysis
can present a better picture of where mandatory minimum penalties are most frequently used.

591

See Commission, 2010 Datafile, USSCFY10.

592

Id.

593

For example, in fiscal year 2010, USSG §2L1.2 (Unlawfully Entering or Remaining in the United States) was
the primary guideline in 26.6% (n=19,910) of all federal criminal cases, making it the second-most commonly
applied primary guideline. See U.S. SENT’G COMM’N, 2010 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS, at
Table 17. Only one, rarely-used statutory offense to which §2L1.2 applies carries a mandatory minimum penalty.
See 8 U.S.C. § 1326(b)(3) (establishing ten-year mandatory minimum penalty for illegal reentry of an alien removed
on national security grounds); see also Table D-3 (Number of Convictions and Mean Sentence for Mandatory
Minimum Statutes) in Appendix D (reporting zero convictions of an offense under section 1326(b)(3) in fiscal year
2010). Immigration offenses referenced to other guidelines carry mandatory minimum penalties, though offenders
are less frequently convicted of them than illegal reentry and other immigration offenses. See 8 U.S.C.
§ 1324(a)(2)(B) (establishing three- and five-year mandatory minimum penalties for bringing in or harboring an
alien with the intent or reason to believe that the alien will commit a felony or for the purpose of commercial
advantage or financial gain). Only 150 offenders were convicted of an offense under section 1324(a)(2)(B) in fiscal
year 2010. Additionally, in fiscal year 2010, a small number (n=86) of immigration offenders also were convicted
of committing aggravated identity theft in violation of 18 U.S.C. § 1028A, which carries a two-year mandatory
penalty. See infra Chapter 11.

130

Figure 7-7A
Distribution of Offenders Convicted of an Offense Carrying a Mandator} Minimum
Penalty By Distlict
Fiscal Year 2010

SOURCE:

u.s. Se:nt-fndD.~, Commiisiol1:- 2010 Dli.mfi3e~ USSCFYIO

Figure 7-7B
Distl'ibution of Offenders Convicted of an Offense Carrying a Mandatol, . lVIinimum
Penalty By Distlict - Immigration Offenders Excluded
Fiscal Year 2010

SOt.JiRCE:

u.s. Sen.tencing Commission,. 2010 Datafile, USSCFYIO

Figure 7-7A shows the mandatory minimum distribution594 in all cases for districts within
the United States. Figure 7-7B shows the same distribution with immigration cases excluded.
Notably, many of the border districts demonstrated higher application rates of mandatory
594

The percentages shown are the percentages of the overall caseload for each district involving offenders
convicted of an offense carrying a mandatory minimum penalty.

131

minimums in the non-immigration caseload. Nevertheless, geographic variation in application
rates is present.
5.

Relief from the Mandatory Minimum Penalty

In fiscal year 2010, almost half (46.7%, n=9,292) of the offenders convicted of an offense
carrying a mandatory minimum penalty were relieved from the application of such a penalty at
sentencing because of substantial assistance or the safety valve. See Figure 7-8. Rates of relief
from the mandatory minimum penalty vary by offense type: 54.4 percent of drug offenders, 4.2
percent of sex offenders, and 15.4 percent of identity theft offenders convicted of an offense
carrying a mandatory minimum received relief from the mandatory minimum penalty. Among
firearm offenders, 24.3 percent of offenders convicted of an offense under 18 U.S.C. § 924(c)
and 17.4 percent of offenders who qualified as armed career criminals pursuant to the Armed
Career Criminal Act, 18 U.S.C. § 924(e), received relief from the mandatory minimum
penalty.595
There were demographic differences in the rates of relief for offenders convicted of an
offense carrying a mandatory minimum penalty, as Figure 7-8 shows. Black offenders received
relief least often, and were therefore subject to the mandatory minimum penalty at the highest
rate (65.1%, n=4,076). This is due, in large part, to Black offenders qualifying for relief under
the safety valve at the lowest rate of any other racial group (11.1%, n=695). Much of this
difference can be attributable to the fact that Black offenders who commit drug offenses often do
not qualify for the safety valve either because of their criminal history596 or the involvement of a
dangerous weapon in connection with the offense.597 The converse is true for Other Race
offenders who received relief from mandatory minimum penalties most often, and so were
subject to such penalties at the lowest rate (41.1%, n=223). These offenders qualified for the
safety valve at the highest rate (36.6%, n=199).

595

See infra Chapters 8–11.

596

In fiscal year 2010, 76.1% (n=4,738) of Black offenders who were convicted of an offense carrying a mandatory
minimum penalty were in Criminal History Categories II – VI, which would disqualify them from consideration for
the safety valve. By contrast, 47.6% (n=2,582) of White offenders, 33.6% (n=2,544) of Hispanic offenders, and
41.8% (n=226) of Other Race offenders were in Criminal History Categories II –VI.

597

In fiscal year 2010, 20.4% (n=1,277) of Black offenders convicted of an offense carrying a mandatory minimum
penalty were convicted of a firearm offense under 18 U.S.C. § 924(c). This compares to 8.4% (n=458) of White
offenders, 6.3% (n=480) of Hispanic offenders, and 12.5% (n=68) of Other Race offenders. In addition, 15.6%
(n=952) of Black offenders convicted of an offense carrying a mandatory minimum penalty received an
enhancement under USSG §2D1.1(b)(1) for weapon involvement. This compares to 8.7% (n=464) of White
offenders, 11.3% (n=845) of Hispanic offenders, and 8.5% (n=45) of Other Race offenders.

132

Figure 7-8
Percellt of Offeuders Comicled of llU Offense ClllT)ing II i'lIlludlllory Minimum Peullily
'VIIO "'ere Reliew(1 of the Pellllity
FiSClll Yellr 1010

."'0 RPlief

100.0

Su b,ra ntial A"hra n r<'

.S.fely\"a1H

Bl<lck HhpanK Qlbtl"

Mall'

.SubA,,,&S\-

Perrone

80.0
60.6
40.0
10.0

0.'

..,

\\"bil~

F.mall'

!'>lm
U.S.
Citiun Citizen

In light of the demographic differences noted in fiscal year 2010 between the rates of
relief for offenders convicted of an offense carrying a mandatory minimum penalty, the
Commission conducted further analysis. The analysis was designed to ascertain how often each
demographic group received relief from applicable mandatory minimum penalties, pursuant to
either a substantial assistance motion or the safety valve provision, from fiscal year 1991 through
fiscal year 2010. As can be seen on Figure 7-9, prior to the enactment of the safety valve (in
1994), Black and Hispanic offenders received relief from the mandatory minimum penalty at
comparable rates. For example, in fiscal year 1994, 34.3 percent of Black offenders and 34.2
percent of Hispanic offenders received relief from the mandatory minimum penalty. White
offenders received relief in 44.2 percent of cases. However, after enactment of the safety valve
provision, the rate at which Hispanic, White, and Other Race offenders obtained relief from a
mandatory minimum penalty increased appreciably while the rate for Black offenders did not.
Hispanic offenders received relief from applicable mandatory minimum penalties at the
highest rates, with rates of 65.9 percent in fiscal year 2000, 57.7 percent in fiscal year 2005, and
55.7 percent in fiscal year 2010. Other Race offenders had the next highest rates (52.8% in fiscal
year 2000, 53.1% in fiscal year 2005 and 58.9% in fiscal year 2010). Black offenders
consistently had the lowest rates (45.7% in fiscal year 2000, 32.8 percent in fiscal year 2005, and
34.9% in fiscal year 2010). White offenders received relief at 60.3 percent in fiscal year 2000,
42.5 percent in fiscal year 2005, and 46.5 percent in fiscal year 2010.

133

Figure 7-9
ReUef From Mandatory ;\Iinimmll Penall")· by Race of Offender
Fiscal Years 1991 -1010
+Uhpanic
100,0 P

u<.nl

80.0

60.0

."..
~o.o

10.0

<f

~

....

~

In fiscal year 2010, slightly less than two-thirds of female offenders (65.5%, n=1,259)
obtained relief from the mandatory minimum penalty at sentencing compared to less than half of
male offenders (44.7%, n=8,032). Not only did female offenders qualify for the safety valve at a
higher rate than male offenders (46.4%, n=892 compared to 26.3%, n=4,723), but female
offenders also received relief by providing substantial assistance to the government at a higher
rate (36.0%, n=692) than male offenders (24.7%, n=4,439). See Figure 7-8.
The Commission also examined the trends for relief from the mandatory minimum by
gender from fiscal years 1991 through 2010. Female offenders consistently received relief from
the mandatory minimum penalty at a higher rate than male offenders, varying from 27.7 percent
in fiscal year 1991 to 65.5 percent in 2010, with the highest rate of relief reported in fiscal year
2000 at 78.6 percent. Male offenders had rates of 22.4 percent in fiscal year 1991 to 44.7 percent
in fiscal year 2010. The highest rate of relief reported for male offenders was 54.4 percent in
fiscal years 2000 and 2001. See Figure 7-10.

134

Figure 7-10
Relief From Mfllldfltory Miuimnm Peual!)· by Gender of Offenders
Fiscal Years 1991 -1010

100.0

P~"""B1
F
=----------------------,

:::tL/..~;;2~2~~~~;;~

10.0

V- - - - - - - - - - - - - - - - - - - - - - - - - - - j
f

In fiscal year 2010, United States citizen offenders convicted of an offense carrying a
mandatory minimum penalty remained subject to the mandatory penalty at sentencing in more
than half of the cases (59.7%, n=8,741) because they did not qualify for substantial assistance or
safety valve relief. Although United States citizen offenders provided substantial assistance to
the government at a higher rate (28.0%, n=4,090) than non-citizen offenders (19.8%, n=1,040),
the majority of non- citizen offenders (54.4%, n=2,858) qualified for relief from the mandatory
minimum penalty under the safety valve. In contrast, only 18.9 percent (n=2,756) of United
States citizen offenders were eligible for relief from the mandatory minimum penalty under the
safety valve. See supra Figure 7-8.
The Commission observed a similar trend after the advent of the safety valve in 1994.
Non-citizen offenders qualified for relief from the mandatory minimum penalty more frequently
than United States citizens. See Figure 7-11. This is largely because non-citizens often have
lower criminal history scores as most do not have prior convictions in the United States. As a
result, non-citizens are eligible to receive relief pursuant to the safety valve at higher rates than
United States citizens.598
598

Non-citizen offenders tend to have less substantial criminal histories, when compared to U.S. citizen offenders,
because criminal history calculations under Chapter 4 of the Guidelines Manual exclude sentences resulting from
foreign convictions. See USSG §4A1.2(h). Foreign convictions are excluded because of uncertainty regarding
whether the offender received adequate due process. Furthermore, it may be uncertain whether the defendant in fact
has any such convictions because “[i]t is often difficult to obtain the foreign defendant’s criminal history from the
foreign jurisdiction.” See Michael Edmond O’Neill et al., Past as Prologue: Reconciling Recidivism and
Culpability, 73 FORDHAM L. REV. 245, 253 n.49 (2004). A court, however, may consider prior foreign convictions
in determining the adequacy of the defendant’s criminal history category, see USSG §4A1.2(h).

135

Figure 7-11
Relief From ;\Illudlllory Minimum Peullll)" by Cilizeusllip of Offenders
FisClll Yelll'S 1991 -1010
-u.S. Citizen,
11111.11

80,0

~!""'!'""'-------------------------------,
t--------------------------1

o~~~

...
~O,O

......

!O,O

D.

SENTENCING OUTCOMES
1.

Average Sentence Length

In considering the effect of mandatory minimum penalties on sentencing outcomes, the
Commission compared the average length of sentences imposed for all offenders, offenders
convicted of an offense carrying a mandatory minimum, offenders relieved from application of a
mandatory minimum because of substantial assistance and/or the safety valve, and offenders who
remained subject to the mandatory minimum at sentencing. In fiscal year 2010, the average
sentence length for all offenders was 48 months of imprisonment.599 Offenders who were
convicted of an offense carrying a mandatory minimum penalty and remained subject to that
penalty received an average sentence of 139 months. Offenders who were convicted of an
offense carrying a mandatory minimum penalty but received relief from the mandatory penalty
because of substantial assistance or the safety valve received an average sentence of 63 months.

599

The average sentence lengths reported here are less than those reported in Chapter 4 because the average
sentence lengths reported here are for all offenders, regardless of the type of sentence imposed. See supra note 423
and accompanying text. Offenders who did not receive a sentence of imprisonment are counted as having received a
sentence of zero months of imprisonment. In contrast, the average sentence lengths reported in Chapter 4 are the
average sentences only for offenders who received a sentence of imprisonment and, therefore, offenders who did not
receive a sentence of imprisonment are excluded from the average sentences reported there. Note that the average
sentence lengths reported here also differ from the average sentences reported in the Commission’s 2010
Sourcebook because cases lacking certain documentation were excluded from the analyses conducted for this report.
See supra note 572 and accompanying text (explaining the data methodology used for this report).

136

The form of statutory relief received by offenders convicted of an offense carrying a
mandatory minimum penalty was correlated with the average sentence imposed. Offenders who
were relieved from application of a mandatory penalty by providing substantial assistance to the
government received longer average sentences, at 91 months, than offenders who received relief
under the safety valve provision (average sentence of 50 months). The offenders who qualified
for relief under both mechanisms had the lowest average sentences, at 33 months. See Figure 712.
Figure 7-12
AW!'llge Sentence Leugth fo!' Offenders Comicted of:Ul Offense
Clll',')"ing 11 ;\IllUdlllo!'y Minimum Peullity
FiSClll Yell!' 2010
.SubjOCfIO:\L\I."·oISubjKllo:\BI

§5Kl.I .Safny"aln .§5Kl.l+ S"

Uonlb'/r--:

U"
I!O

91

'00

"
These differences may be attributable to the fact that offenders who qualify for safety
valve relief are generally less culpable than other offenders and, therefore, would normally
receive lower sentences on average. For example, to qualify for safety valve relief, offenders
must not have possessed a dangerous weapon in connection with the offense and must not have
received an aggravating role adjustment under the guidelines (for being an organizer, leader,
manager, or supervisor in any criminal activity).600 Of the offenders who qualified for relief
from a mandatory penalty in fiscal year 2010 by providing substantial assistance to the
government (n=5,131), 10.9 percent (n=557) were also convicted of a firearms crime, 13.6
percent (n=697) received a sentence enhancement for possessing a weapon, and 9.8 percent
(n=503) received an aggravating role adjustment.
To some extent, the average sentences noted above are also attributable to the length of
the applicable mandatory minimum penalty involved in the case. Of the 19,896 offenders
convicted of an offense carrying a mandatory minimum penalty in fiscal year 2010, 51.2 percent
(n=10,194) were convicted of an offense carrying a mandatory minimum penalty of ten years, 15
years, 20 years, or life imprisonment. Less than 40 percent (39.8%, n=7,929) were offenders
600

See USSG §§5C1.2, 3B1.1.

137

convicted of an offense carrying a mandatory minimum penalty of five years of imprisonment.
The remaining offenders (8.9%, n=1,773) were convicted of an offense that carried a mandatory
minimum penalty of another length. See Figure 7-13.
Figure 7-13
""-umbel' of Offeudel's in Selecled M:lUdlllory i\Iinimum Peuall)· Calegol'ies
Fiscal Year 2010
20Y.u

_Lif.

"'·umb.r
10.000

8.000

6.000

4.000

2.000

"
The Commission compared the average length of sentences imposed for offenders by
race, citizenship, and gender. Table 7-3 shows the results of that comparison. Among all
offenders sentenced in fiscal year 2010, Black offenders received the highest average sentence
(76 months). White offenders (49 months) had the second highest, followed by Other Race
offenders (45 months) and Hispanic offenders (35 months). The same relationship occurs for
offenders who were convicted of a statute carrying a mandatory minimum penalty. Black
offenders had an average sentence of 127 months, followed by White offenders (102 months),
Other Race offenders (93 months) and Hispanic offenders (87 months). For offenders who were
convicted of a statute carrying a mandatory minimum penalty but were relieved of the
application of the penalty at sentencing, Black offenders also had the highest average sentence
(81 months), followed by Hispanic offenders (59 months), White offenders (57 months) and
Other Race offenders (56 months). Finally, for offenders who were subject to a mandatory
minimum penalty at sentencing, Black offenders had the highest average sentence (152 months),
followed by Other Race offenders (147 months), White offenders (141 months) and Hispanic
offenders (123 months).
United States citizens have higher sentences than non-citizens in all four instances (all
offenders, offenders convicted of a statute carrying a mandatory minimum penalty, offenders
relieved of a mandatory minimum penalty, and offenders subject to a mandatory minimum
penalty at sentencing). Male offenders also have higher sentences than female offenders in all
four instances.

138

Table 7-3
Average Sentence by Demographic Characteristics of Offenders
Fiscal Year 2010

Total (# of offenders)

All Offenders

Convicted of a
Statute Carrying
a Mandatory
Minimum Penalty

Relieved of
Application of
Mandatory
Minimum Penalty

Subject to a
Mandatory
Minimum Penalty
at Sentencing

73,239

19,896

9,291

10,605

Race of Offender (Months)
White

49

102

57

141

Black

76

127

81

152

Hispanic

35

87

59

123

Other

45

93

56

147

Citizenship of Offender (Months)
United States Citizen

62

112

68

143

Non-Citizen

30

80

56

125

Gender of Offender (Months)
Male

51

108

66

142

Female

25

62

45

94

More in-depth analyses of the impact of mandatory minimum penalties on average
sentence length are addressed by specific offense type in Chapters 8 through 11 of this report.
2.

Sentences Relative to the Applicable Guideline Range

The Commission compared the position of the sentence relative to the applicable
guideline range for all offenders, offenders convicted of an offense carrying a mandatory
minimum, offenders relieved from application of a mandatory minimum because of substantial
assistance and/or the safety valve, and offenders who remained subject to the mandatory
minimum at sentencing. Table 7-4 compares the position of sentences relative to the guideline
range for these offender groups.
As shown in Table 7-4, approximately one-quarter (24.5%, n=2,595) of offenders601 who
remained subject to a mandatory minimum penalty at sentencing received a non-government
sponsored departure or variance, a higher rate than for offenders generally and for those
offenders convicted of an offense carrying a mandatory minimum penalty. Of offenders who
601

Of these 2,595 offenders, 32.8% (n=850) were sentenced at the applicable mandatory minimum penalty.

139

remained subject to the mandatory minimum penalty at sentencing, 37.0 percent (n=3,924)
received a sentence at the mandatory minimum penalty. Of offenders who were relieved from
the application of the mandatory minimum penalty, no offenders received a sentence at or above
the mandatory minimum penalty. More in-depth analyses of the impact of mandatory minimum
penalties on sentences relative to the applicable guideline range are addressed by specific offense
type in Chapters 8 through 11 of this report.
Table 7-4
Position Relative to the Guideline Range of Offenders
Fiscal Year 2010

Total (# of offenders)

All
Offenders

Convicted of a
Statute
Carrying a
Mandatory
Minimum
Penalty

Relieved of
Application of
Mandatory
Minimum
Penalty

73,239

19,896

9,291

10,605

Subject to a
Mandatory
Minimum
Penalty at
Sentencing

Sentence Relative to the Guideline Range (Percent)

E.

Within Range

52.7

45.8

22.6

66.1

Above Range

2.0

1.4

0.3

2.5

Substantial Assistance '5K1.1

12.5

25.8

55.2

0.0

Other Government Sponsored
(no '5K1.1)

13.9

7.4

8.0

7.0

Other Below Range

18.9

19.5

13.9

24.5

PRISON IMPACT
1.

Introduction

As of the end of fiscal year 2010, there were 191,757 offenders in BOP custody, of whom
111,460 (58.1%) were convicted of an offense carrying a mandatory minimum penalty. Of the
191,757 offenders in BOP custody, 75,579 (39.4%) were subject to that mandatory minimum
penalty at sentencing.
As already noted,602 the federal prison population has grown steadily over the past 20
years although the proportion of those offenders convicted under an offense carrying a
mandatory minimum penalty has remained relatively stable. Similarly, the proportion of
offenders who were subject to a mandatory minimum penalty at sentencing has remained
relatively stable. The Commission conducted additional analysis to study the impact of
602

See supra Chapter 4.

140

mandatory minimum penalties on different demographic groups. This analysis examined male
and female offenders separately and then examined the racial groups for each gender in the
prison population.
2.

Male Offenders

The number of Black male offenders has exceeded the number of any other race in prison
for all years studied. At the end of fiscal year 1995, 34.8 percent (n=22,991) of the male federal
prison population were Black. White male offenders made up 34.5 percent (n=22,804), Hispanic
offenders were 28.1% (n=18,565), and Other Race offenders were 2.6 percent (n=1,728). The
number of Black male offenders in the prison population has grown steadily since fiscal year
1995. At the end of fiscal year 2010, there were 64,295 (35.9%) Black male offenders in the
federal prison population, compared to 48,325 (27.0%) White male offenders, 60,726 (33.9%)
Hispanic male offenders, and 5,810 (3.2%) Other Race male offenders. See Figure 7-14.
Figul'e 7-14
Xumbel' of Offendel's in PI;SOIl by Rllce for Male

Offellder~

1995 -1010

.

"'Whit~~I.k>s

,

70.000 '

_Bl.ck~bk>s

_Hhp.nk~bl",

_OthorI\,.I",

um,,~I'

60.000
50.000

Similar trends can be seen regarding male offenders in prison convicted of an offense
carrying a mandatory minimum penalty. At the end of fiscal year 1995, the number of Black
male offenders (n=15,076, 40.7%) convicted of an offense carrying a mandatory minimum
penalty exceeded those of any other racial group (White (n=10,063, 27.2%), Hispanic (n=11,255,
30.4%), and Other Race (n=642, 1.7%)). This trend continued through 2010, when the number
of Black male offenders convicted of an offense carrying a mandatory minimum penalty grew to
44,587 (42.6%), almost twice the number of White male offenders (n=24,962, 23.9%). See
Figure 7-15. At the end of fiscal year 2010, the number of Hispanic male offenders convicted of
an offense carrying a mandatory minimum penalty increased to 32,738 (31.3%) and the number
of Other Race offenders was 2,337 (2.2%).

141

Figul'e 7-15
""umbel' of Offendel's in Plison Comicted of an Offense Carrying
A Mandatol')· Minimnm Penal!)·
By R..'lce fOI" Male Offender~
1995 -1010
_B1MkMal...

70.000
60.000

cc'"""m"""'"'

...,

r

t-----------------------I

~o.ooo

30.000
20.000
10.000

"

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~ ~ ~

~

~-

~-

~

~

~

~

~

~

~

~

~

~

Finally, similar trends can be seen in the federal prison population for male offenders
who remained subject to a statute carrying a mandatory minimum penalty at sentencing. For
fiscal years 1995 through 2010, the numbers of Black and Hispanic offenders subject to a
mandatory minimum penalty at sentencing exceeded the numbers of White and Other Race male
offenders. At the end of fiscal year 1995, there were 11,408 (41.5%) Black male offenders,
8,522 (31.0%) Hispanic male offenders, 7,107 (25.8%) White male offenders and 472 (1.7%)
Other Race offenders subject to a statute carrying a mandatory minimum penalty. At the end of
fiscal year 2010, the number of male offenders in each group had grown to 17,342 (24.0%)
White, 33,188 (46.0%) Black, 20,126 (27.9%) Hispanic, and 1,511 (2.1%) Other Race offenders.
See Figure 7-16.

142

Figure 7-16
1'\umbel' of Offenders in Prison Subjefllo an Offense Cal'l'~ing
A Mandatol'y Minimnm Penalt)' at Sentencing
By R..'lfe for Male OlTender~
1995 -1010
"'Whil.~hl...

_BI.l<k~hl."

_Hhpallk~hl."

"'OlhorM.Ie,

">umhn

70,000

r==----------------------,

60,000 1 - - - - - - - - - - - - - - - - - - - - - - - 1
50,0001-----------------------1

30,000
10,000
10,000

,
",'"

~

3.

",lo

~

",'\

~

",'b

~

",'"

~

",""

~

",'

~

"'....

~

_,,-..

"'').

~ ~

st-

~

",lo _,,'\

~

",""

~ ~

",""

~

,""

~

Female Offenders

The trends in the prison population for female offenders are different than those for male
offenders. At the end of fiscal year 1995, Black female offenders outnumbered any other racial
group, accounting for 2,115 offenders (36.9% of all female offenders in prison), (compared to
White females (n=2,096, 36.6%), Hispanic females (n=1,348, 23.5%); Other Race females
(n=167, 2.9%)). However, by 2001, White females again became the largest group of female
offenders in the federal prison system, as demonstrated in Figure 7-17. As of fiscal year 2010,
the number of White female offenders had grown to 4,939 (41.0%). Hispanic female offenders
made up the second largest racial group in the prison population at 3,373 (28.0%), followed by
Black female offenders (n=3,069, 25.5%) and Other Race female offenders (n=668, 5.5%). See
Figure 7-17.

143

Figure 7-17
"'umbel' of Offenders in Prison by Race for Femllle Offenders
1995 -1010

_HhpallirF'ill"l",

5.000

. "m

---

4.000
3.000
2.000

_Oth.... F.ill"I'"

,.

~

~

1.000

S""~_

u.s. Soolto<>qe-........ B_ _ .. Pm_c-....l..' _

'OIO~ USSCBOP

Similar trends can be seen with respect to female offenders in prison convicted of an
offense carrying a mandatory minimum penalty. At the end of fiscal year 1995, Black (n=1,218,
41.1%) and Hispanic (n=862, 29.1%) female offenders convicted of an offense carrying a
mandatory minimum penalty outnumbered both White and (n=813, 27.5%) and Other Race
(n=68, 2.3%) female offenders. This trend continued until 2004, when the number of White
females convicted of an offense carrying a mandatory minimum penalty first exceeded the
number of Hispanic females. The following year, the number of White female offenders
(n=1,831, 33.3%) convicted of an offense carrying a mandatory minimum penalty also exceeded
the number of similarly situated Black female offenders (n=1,736, 31.6%).603 By the end of
fiscal year 2006, the number of Hispanic female offenders convicted of an offense carrying a
mandatory minimum penalty surpassed the number of their Black female counterparts. By the
end of 2010, there were 2,657 (40.5%) White female offenders in the federal prison population
convicted of an offense carrying a mandatory minimum penalty, compared to 1,905 (29.0%)
Hispanic, 1,692 (25.8%) Black, and 313 Other Race (4.8%) female offenders convicted of such a
statute. See Figure 7-18.

603

The increase in White female offenders is mainly due to their involvement in methamphetamine offenses. Of the
4,939 White female offenders in prison on September 30, 2010, 1,843 (37.3%) were convicted of a
methamphetamine offense. By comparison, on September 30, 1995, 276 of the 2,096 (13.2%) of White females in
prison were convicted of a methamphetamine offense.

144

Figul'e 7-18
""umbel' of Offeudel's ill PlisOIl Comicted of all Offeuse CalT)illg
A Mandatol')· Miuimnm Penal!)·
By Ran' fol' Femalt' Offt'udt'l"s
1995 -1010
_"lIilpFpmal",

_BlarkFpmal'"

_Hi.<pallirFpmal""

_OlhprF.ma,""

:"lIlllh...

5.000

i"""''''-----------------------,

".000

j----------------------------~

A slightly different trend was observed for female offenders in each racial group who
remained subject to a mandatory minimum penalty at sentencing. At the end of fiscal year 1995,
Black (n=854, 42.5%) and Hispanic (n=622, 31.0%) female offenders subject to a statute
carrying a mandatory minimum penalty exceeded the number of White (n=489, 24.3%) and
Other Race (n=45, 2.2%) female offenders. The Commission observed the same trend through
2003, when the number of White female offenders subject to a statute carrying a mandatory
minimum penalty exceeded the number of similarly situated Hispanic female offenders. By the
end of 2008, White female offenders subject to a statute carrying a mandatory minimum penalty
were the largest racial group of female offenders subject to such a penalty at sentencing. This
trend continued through 2010, when there were 1,171 (36.3%) White, 1,074 (33.3%) Black, 842
(26.1%) Hispanic, and 140 (4.4%) Other Race female offenders subject to a statute carrying a
mandatory minimum penalty in the federal prison population. See Figure 7-19.

145

Figul'e 7-19
"'umbel' or OtTenders ill Prison Subjefllo fln Ofrtnst Cfll'r~ing
A l\'Iflndfltol'Y Minimum Penfllry' fit Sentencing
By Rflft fol' Femfllt OtTtndtrs
1995 -1010
_'''hifeFemah''

_BlackFemal... _Hi,paukFema,"" _Othef'Females

"··cm"""O',,·

--,

i
4,000 t - - - - - - - - - - - - - - - - - - - - - - I
5,000

3,000

t----------------------I

2,000

'OUKE.

F.

u.,. ~c-.. ........ B. . . . . "". . . c---..l..' _ 'OIOo.tmlK, "'SCBO'

SUMMARY

With respect to mandatory minimum penalties generally, the Commission analysis
demonstrate the following:
Offenses and Offenders
•

More than one-quarter of the 73,239 offenders sentenced in the federal courts in fiscal
year 2010 (27.2%, n=19,896) included in this analysis were convicted of an offense
carrying a mandatory minimum penalty.

•

Over three-quarters (77.4%) of convictions of an offense carrying a mandatory minimum
penalty were for drug trafficking offenses.

•

Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an
offense carrying a mandatory minimum penalty, followed by Black offenders at 31.5
percent, White offenders at 27.4 percent, and Other Race offenders at 2.7 percent.

•

More than 90 percent (90.3%) of the offenders convicted of an offense carrying a
mandatory minimum penalty were men.

•

United States citizens accounted for 73.6 percent of all offenders convicted of an offense
carrying a mandatory minimum penalty.

146

•

Seven out of 94 districts accounted for 27.0 percent (n=5,367) of the 19,896 cases
involving a conviction of an offense carrying a mandatory minimum penalty in fiscal
year 2010.

Application and Relief
•

Offenders convicted of an offense carrying a mandatory minimum penalty pled guilty at a
slightly lower rate (94.1%) than offenders who were not convicted of an offense carrying
a mandatory minimum penalty (97.5%). Furthermore, offenders facing longer mandatory
minimum penalties were less likely to plead guilty.

•

Offenders convicted of an offense carrying a mandatory minimum penalty but who were
eligible for the statutory safety valve relief pled guilty at a rate (99.4%) higher than for
both offenders convicted of an offense not carrying a mandatory minimum penalty
(97.5%) and offenders who were not eligible for safety valve relief (94.6%).

•

Almost half (46.7%) of offenders convicted of an offense carrying a mandatory minimum
penalty were relieved from the application of such a penalty at sentencing because they
provided substantial assistance to the government or qualified for the safety valve
provision, or both.
o

Black offenders received relief from a mandatory minimum penalty least often (in
34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other
Race (58.9%) offenders. Black offenders qualified for relief under the safety
valve at the lowest rate of any other racial group (11.1%), compared to White
(26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their
criminal history or the involvement of a dangerous weapon in connection with the
offense.

o

Prior to the enactment of the safety valve (in fiscal year 1994), Black and
Hispanic offenders received relief from the mandatory minimum penalty at
comparable rates (34.3% and 34.2%, respectively), although lower than Other
Race (46.4%) and White (44.2%) offenders. After enactment of the safety valve
provision, the rate at which Hispanic, White, and Other Race offenders obtained
relief from a mandatory minimum penalty increased appreciably, while the rate
for Black offenders did not.

o

Female offenders obtained relief from a mandatory minimum penalty at
sentencing more often than male offenders (65.5% compared to 44.7%). Not only
did female offenders qualify for the safety valve at a higher rate than male
offenders (46.4% compared to 26.3%), but female offenders also received relief
by providing substantial assistance to the government at a higher rate (36.0%)
than male offenders (24.7%).

o

Non-citizens received relief from mandatory minimum penalties at sentencing
more often than United States citizens (64.6% compared to 40.3%). Although

147

United States citizen offenders provided substantial assistance to the government
at a higher rate (28.0%) than non-citizen offenders (19.8%), the majority of noncitizen offenders (54.4%) qualified for relief from the mandatory minimum
penalty under the safety valve, compared to United States citizens at 18.9 percent.
Sentencing
•

•

Only 14.5 percent of all federal offenders were subject to a mandatory minimum penalty
at sentencing.
o

Black offenders convicted of an offense carrying a mandatory minimum penalty
remained subject to a mandatory minimum penalty at sentencing at the highest
rate of any racial group, in 65.1 percent of their cases, followed by White
(53.5%), Hispanic (44.3%), and Other Race (41.1%).

o

Male offenders convicted of an offense carrying a mandatory minimum penalty
remained subject to the mandatory minimum penalty at sentencing more often
than female offenders (55.3% compared to 34.5%).

o

United States citizens convicted of an offense carrying a mandatory minimum
penalty remained subject to the mandatory minimum penalty at sentencing more
often than non-citizens (59.7% compared to 35.4%).

Receiving relief from an applicable mandatory minimum sentence made a significant
difference in the sentence ultimately imposed. Offenders who were convicted of an
offense carrying a mandatory minimum penalty and remained subject to that penalty at
sentencing received an average sentence of 139 months, compared to 63 months for those
offenders who received relief from a mandatory penalty.
o

Offenders who received relief from a mandatory minimum penalty by providing
substantial assistance to the government received longer average sentences than
offenders who received relief under the safety valve provision.

Prison Impact
•

75,579 (39.4%) of the 191,757 offenders in BOP custody as of September 30, 2010, were
subject to a mandatory minimum penalty at sentencing.

•

Although the number of offenders in BOP custody who were subject to a mandatory
minimum penalty at sentencing has grown steadily over the past 20 years, the proportion
of such offenders in BOP custody has remained relatively stable.

148

Chapter 8

MANDATORY MINIMUM PENALTIES FOR
DRUG OFFENSES
A.

INTRODUCTION

This chapter analyzes the application of mandatory minimum penalties in drug offenses.
Initially, it provides an overview of the relevant statutes and the applicable guideline provisions.
Next, this chapter provides a statistical overview of drug offenses and drug offenders, focusing
on drug offenders convicted of an offense carrying a mandatory minimum penalty. Then it
provides a statistical overview of drug offenses and drug offenders by drug type, again focusing
on drug offenders convicted of an offense carrying a mandatory minimum penalty. Finally, the
chapter discusses the Commission’s study of the use of the statutory penalty enhancements for
second and subsequent felony drug offenses.
As used in this chapter, the term “drug offenses” refers to offenses covered by Chapter 2,
Part D (Offenses involving Drugs and Narco-Terrorism) of the Guidelines Manual. The term
“drug offender” means a person who committed a drug offense.604 In the majority (95.1%,
n=22,791) of drug offenses, the applicable guideline is §2D1.1. Additional relevant guidelines
include USSG §§2D1.2 (Drug Offenses Occurring Near Protected Locations or Involving
Underage or Pregnant Individuals; Attempt or Conspiracy) (2.5%, n=603), 2D1.5 (Continuing
Criminal Enterprise: Attempt or Conspiracy), 2D1.8 (Renting or Managing a Drug
Establishment: Attempt or Conspiracy), and 2D1.11 (Unlawfully Distributing, Importing,
Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) (1.0%, n=236).605 When
specified drug types are discussed individually, a person who commits an offense involving that
drug type will be referred to accordingly (e.g., marijuana offender).

604

A drug offender may also have a conviction for violating 18 U.S.C. § 924(c), for possession or use of a firearm
during the commission of the drug offense. Those offenders are included in the analysis in this chapter and also in
Chapter 9 of this Report.

605

The other Chapter 2, Part D guidelines are §§2D1.6 (Use of a Communication Facility in Committing Drug
Offenses; Attempt or Conspiracy), 2D1.7 (Unlawful Sale or Transportation of Drug Paraphernalia; Attempt or
Conspiracy), 2D1.9 (Placing or Maintaining Devices on Federal Property to Protect the Unlawful Production of
Controlled Substances; Attempt or Conspiracy), 2D1.10 (Endangering Human Life While Illegally Manufacturing a
Controlled Substances; Attempt or Conspiracy), 2D1.12 (Unlawful Possession, Manufacture, Distribution,
Transportation, Exportation, or Importation of Prohibited Flask, Equipment, Chemical, Product, or Material;
Attempt or Conspiracy) (n=6), 2D1.13 (Structuring Chemical Transaction or Creating a Chemical Mixture to Evade
Reporting or Recordkeeping Requirements; Presenting False or Fraudulent Identification to Obtain a Listed
Chemical; Attempt or Conspiracy) (n=1), 2D2.1 (Unlawful Possession: Attempt or Conspiracy) (0.8%, n=192),
2D2.2 (Acquiring a Controlled Substance by Forgery, Fraud, Deception, or Subterfuge; Attempt or Conspiracy)
(0.3%, n=77), 2D2.3 (Operating or Directing the Operation of a Common Carrier Under the Influence of Alcohol or
Drugs), 2D3.1 (Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Scheduled
Substances; Attempt or Conspiracy) (n=4), and 2D3.2 (Regulatory Offenses Involving Controlled Substances or
Listed Chemicals; Attempt or Conspiracy).

149

B.

DRUG OFFENSES AND RELATED GUIDELINES

The most commonly prosecuted drug offenses carrying mandatory minimum penalties
are found at 21 U.S.C. §§ 841 and 960. Section 841 makes it unlawful for any person knowingly
or intentionally to “manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute or dispense, a controlled substance.” Section 960 criminalizes the knowing and
intentional importation or exportation of a controlled substance. Controlled substance is defined
as “a drug or other substance, or immediate precursor, included in Schedule I, II, III, IV, or V of
part B of this subchapter,” and includes powder cocaine, crack cocaine,606 marijuana,
methamphetamine, and heroin, among others.607
Sections 841 and 960 have parallel penalty structures that are tied to the quantity and type
of controlled substances in the offense. A ten-year mandatory minimum penalty with a
maximum term of life imprisonment is triggered by offenses involving the following drug
quantities and types, among others:608 one kilogram or more of heroin, five kilograms or more of
powder cocaine, 280 grams or more of crack cocaine,609 1,000 kilograms or more of marijuana,
and 50 grams or more of pure methamphetamine. Offenders convicted under either statute who
were previously convicted of a drug felony are subject to a 20-year mandatory minimum penalty,
and offenders previously convicted of a two or more prior drug felonies are subject to a
mandatory minimum term of life imprisonment.610
The following quantities and types of drugs, among others,611 trigger a five-year
mandatory minimum penalty and a maximum term of 40 years: 100 grams of heroin, 500 grams
606

Crack cocaine is referred to as “cocaine base” in the relevant statutes. For a discussion of case law discussing
the definition of this term, see Appendix E(A)(2) of this Report.

607

See 21 U.S.C. § 802.

608

The other drug quantities and types are: 100 grams of phencyclidine (PCP) or one kilogram or more of a
mixture or substance containing a detectable amount of PCP; 10 grams or more of a mixture and substance
containing a detectable amount of lysergic acid diethylamide (LSD); 400 grams or more of a mixture or substance
containing a detectable amount of N-Phenyl_N-[1-(2-phenylethyl)-4-piperidinyl] propanamide or 100 grams or
more of a mixture or substance containing a detectable amount of any analogue of N-Phenyl_N-[1-(2-phenylethyl)4-piperidinyl] propanamide.
609

For offenses that occurred prior to August 3, 2010, the date of enactment of the Fair Sentencing Act, 50 grams of
crack cocaine triggered the ten-year mandatory minimum penalty. Fiscal year 2010 started on October 1, 2009, and
ended September 30, 2010. The majority of the crack cocaine offenders sentenced in fiscal year 2010 were
sentenced under the pre-FSA quantities. Thus, some degree of caution should be exercised in drawing conclusions
from the crack cocaine data analyzed in this report because sentences for post-FSA offenses will likely be different
than sentences for sentences for pre-FSA offenses.

610

See 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1)(A)-(C),(G), & (H). These mandatory minimum penalties became
effective on November 1, 1987, for all drug types, except crack cocaine and methamphetamine. See Pub. L. No.
99–570, § 1002, 100 Stat. 3207, 3207-2 (1986) (amending 21 U.S.C. § 841(b)(1)). The mandatory minimum
penalties for methamphetamine became effective on November 18, 1988. See Pub. L. No. 100–690, § 6470(g)(3),
102 Stat. 4181, 4370 (1988) (amending 21 U.S.C. § 841(b)(1)).

611

The other drug quantities and types are: 10 grams of PCP or 100 grams of a mixture or substance containing a
detectable amount of PCP; 1 gram of a mixture and substance containing LSD; 40 grams of a mixture or substance

150

of powder cocaine, 28 grams of crack cocaine,612 100 kilograms of marijuana, and five grams of
pure methamphetamine. The mandatory minimum penalty doubles to ten years and the
maximum increases to life for offenders with a prior felony drug conviction.613 For offenses
involving the listed drug types, except marijuana, in smaller quantities than already noted, the
maximum term of imprisonment is 20 years and no mandatory minimum penalty applies.614 For
offenses involving less than 50 kilograms of marijuana, the maximum term of imprisonment is
five years and no mandatory minimum applies.615
The penalties for committing other drug offenses criminalized under title 21, United
States Code, are tied to the above-referenced penalty structure. For example, attempts or
conspiracies to commit any drug offense are subject to the same penalty structure as the
substantive offense.616 Congress also criminalized distributing drugs to persons who are under
the age of 21 or who are pregnant, using persons under the age of 18 in drug operations, and
distributing drugs in or near schools and other colleges.617 A person who commits one of those
offenses is subject to a mandatory minimum penalty of at least one year of imprisonment, unless
a greater mandatory minimum penalty otherwise applies.618
Offenders who engage in a continuing criminal enterprise619 must be sentenced to a term
of imprisonment of not less than 20 years and up to life imprisonment for the first offense, and
not less than 30 years and up to life imprisonment for any second or subsequent offense.620 Any
containing a detectable amount of N-Phenyl_N-[1-(2-phenylethyl)-4-piperidinyl] propanamide or 10 grams of a
mixture or substance containing a detectable amount of any analogue of N-Phenyl_N-[1-(2-phenylethyl)-4piperidinyl] propanamide.
612

For offenses that occurred prior to August 3, 2010, the date of enactment of the Fair Sentencing Act of 2010,
five grams of crack triggered the five-year mandatory minimum penalty. As previously noted, the majority of the
crack offenders sentenced in fiscal year 2010 were sentenced under the pre-FSA quantities. In addition, prior to
enactment of the Fair Sentencing Act, simple possession of more than 5 grams of crack cocaine also carried a fiveyear mandatory minimum penalty.

613

See 21 U.S.C. §§ 841(b)(1)(B), 960(b)(2)(A)-(C),(G), and (H). The enhanced mandatory minimum penalties in
these statutes do not apply automatically. Specific proceedings to establish the prior conviction are required by
statute. See 21 U.S.C. § 851. For additional discussion of these proceedings, see Part I, infra.

614

See 21 U.S.C. § 841(b)(1)(C).

615

See 21 U.S.C. § 841(b)(1)(D).

616

See 21 U.S.C. §§ 846, 963.

617

See 21 U.S.C. §§ 859, 860, and 861.

618

See 21 U.S.C. §§ 859, 860, and 861; see also 21 U.S.C. §§ 841(b)(1), 960(b).

619

A person is engaged in a continuing criminal enterprise if the person commits any felony violation of offense
listed in Chapter 13 of Title 21, United State Code, and such violation is a part of a continuing series of violations
“undertaken by such person in concert with five or more other persons with respect to whom such person occupies a
position of organizer, a supervisory position, or any other position of management,” and “from which such person
obtains substantial income or resources.” 21 U.S.C. § 848(c).

620

See 21 U.S.C. § 848.

151

administrator, organizer, or leader of the enterprise is subject to a mandatory life term of
imprisonment if the offense involved 300 times the quantity of a substance described in section
841(b)(1)(B) or the enterprise received $10 million in gross receipts during any 12-month
period.621
The guideline applicable to most drug offenses is §2D1.1, which has five alternate base
offense levels. Four of the five apply if the defendant is convicted of a specific statute listed in
the guideline and death or serious bodily injury resulted from the offense. The fifth base offense
level, which is the most commonly applied, ties the base offense level to the quantity of drugs
involved in the offense, starting at offense level 6 and continuing through offense level 38. As
discussed more fully in Chapter 3 of this report, quantities of drugs triggering the five-year
mandatory minimum are set at base offense level 26 and quantities triggering the ten-year
mandatory minimum are set at base offense level 32. The Commission then set the proportional
quantities of drugs triggering other offense levels in the Drug Quantity Table.622
The guideline also includes specific offense characteristics designed to address certain
aggravating and mitigating conduct associated with drug offenses. For example, the guideline
establishes a 2-level enhancement for possession of a dangerous weapon.623 The guideline also
includes a 2-level reduction for a defendant who meets the safety valve criteria.624
C.

STATISTICAL OVERVIEW OF DRUG OFFENSES

Drug offenses have historically represented the largest portion of the federal caseload. In
fiscal year 2009, this trend ended when immigration offenses became the most common type of
offense reported to the Commission.625 In fiscal year 2010, drug offenses were 28.0 percent of
the reported cases, with 23,964 offenders convicted of a drug offense. More than one-quarter
(26.0%, n=6,161) of drug offenses involved marijuana, followed by powder cocaine (5,571,
n=23.5%), crack cocaine (20.0%, n=4,751), methamphetamine (17.6%, n=4,169), heroin (6.6%,
n=1,561) and other drugs (6.4%, n=1,514). See Figure 8-1.

621

See 21 U.S.C. § 848(b).

622

The Commission’s method for calculating the quantity of a drug for purposes of the guidelines sometimes differs
from the statutes. See Appendix E(A)(2) of this Report.
623

See §2D1.1(b)(1).

624

See §2D1.1(b)(16).

625

In fiscal year 2009, immigration offenses accounted for 32.2 % of the caseload and drug offenses accounted for
30.3% of the caseload.

152

Figurt' 8-1
Typt' of Drug Inl'oll't'd iu Dl'Ug Offl'ust's
FiSClll Yt'llr 2010
All Drug Offrndrrs

Othr,·

Heroin

1,514....., . _ - - - 6.4~0 •

D"ug Offenders Cou,icled of au Offense CanTing a
Mandaton· Minimum Peualh·

1,561
6.6°/.

Cocaine
4,447

Crack
3,905

28.1°/.

24.7~0

Other
172
l.l%

Meth
4,169
17.6%

••

"

SOURCE,

HeI"oin
1,098
6.9~0

Marijuana

2,725
17.2%

u.s. s - q e-,o-, J0101l>t.filo.USSCTY10.

Approximately two-thirds (66.1%, n=15,831) of the 23,964 drug offenders in fiscal year
2010 were convicted of an offense carrying a mandatory minimum penalty. More than onequarter (28.1%, n=4,447) of drug offenses carrying a mandatory minimum penalty involved
powder cocaine, followed by crack cocaine (24.7%, n=3,905), methamphetamine (21.9%,
n=3,466), marijuana (17.2%, n=2,725), heroin (6.9%, n=1,098) and other drugs (1.1%, n=172).
See Figure 8-1.
The application of mandatory minimum penalties varies greatly by the type of drug
involved in the offense. For example, in fiscal year 2010, a mandatory minimum penalty applied
in 83.1 percent (n=3,466) of drug cases involving methamphetamine. In contrast, such a penalty
applied in less than 45 percent (n=2,725) of marijuana cases. With respect to other drugs (such
as PCP and LSD), such a penalty applied in 11.4 percent (n=172) of cases.
The most frequently reported drug mandatory minimum penalty in fiscal year 2010 was
ten years. In fiscal year 2010, almost half of all drug offenders (48.7%, n=7,716) were convicted
of an offense carrying a ten-year mandatory minimum penalty. The second most frequently
reported drug mandatory minimum penalty was five years (42.4%, n=6,711). Drug offenses
involving a conviction of a statute carrying either a mandatory penalty of 20 years (n=692) or
one of life (n=153) accounted for a small proportion (5.3%) of all drug offenses involving a
conviction of a statute carrying a mandatory minimum penalty.
1.

Demographic Characteristics of Drug Offenders

Table 8-1 presents information on the demographic characteristics of all drug offenders.
This information is then compared to that for drug offenders convicted of an offense carrying a
mandatory minimum penalty, drug offenders convicted of an offense carrying a mandatory
153

minimum penalty and relieved of application of the mandatory minimum penalty, and then to
those drug offenders who remained subject to the mandatory minimum at the time of sentencing
because they did not qualify for any form of statutory relief. Table 8-2 displays information
about offense characteristics and criminal history categories for these groups of offenders.
Table 8-1
Demographic Characteristics of Drug Offenders
Fiscal Year 2010

Demographics
Total (# of offenders)

Convicted of a Statute
Carrying a Mandatory
Minimum Penalty

All
Offenders
23,964

Relieved of
Application of
Mandatory
Minimum
Penalty

15,831

Subject to
Mandatory
Minimum Penalty
at Sentencing

8,619

7,212

Race of Offender (Percent)
White

26.2

23.1

27.0

18.4

Black

27.3

30.3

22.0

40.4

Hispanic

43.3

44.0

47.7

39.6

3.1

2.5

3.3

1.5

Other

Citizenship of Offender (Percent)
United States Citizen

70.4

70.0

61.7

79.9

Non-Citizen

29.6

30.0

38.3

20.1

Gender of Offender (Percent)
Male

87.4

89.8

86.4

94.0

Female

12.6

10.2

13.6

6.0

154

Table 8-2
Guideline Sentencing Characteristics, Role in the Offense and
Criminal History of Drug Offenders
Fiscal Year 2010
Subject to
Mandatory
Minimum
Penalty
at Sentencing

All
Offenders

Convicted of a
Statute Carrying
a Mandatory
Minimum Penalty

Relieved of
Application
of Mandatory
Minimum
Penalty

23,964

15,831

8,619

7,212

Total (# of offenders)

Characteristics (Percent)
Weapon Specific Offense Characteristic

11.6

12.8

8.0

18.9

Firearms Mandatory Minimum Applied

4.8

7.2

3.8

11.3

36.4

35.1

64.5

0.0

5.9

7.7

5.1

10.8

18.4

16.3

25.5

5.4

Safety Valve Reduction

Role in the Offense (Percent)
Aggravating Role
Mitigating Role

Criminal History Category (Percent)
I

51.5

50.1

70.1

26.1

II

11.6

11.6

7.3

16.8

III

13.9

14.1

8.8

20.6

IV

7.1

7.3

3.9

11.3

V

4.1

4.2

2.4

6.4

VI

11.8

12.6

7.5

18.9

These tables do not reflect the fact that the demographic and offense characteristics of
drug offenders vary widely by the type of drug involved in the offense. Therefore, a complete
analysis of the impact of mandatory minimums in drug cases involves an examination of the
application of these penalties for each major drug type. This chapter will present data by major
drug types following this overview.
2.

Guilty Pleas and Trials

Drug offenders convicted of a statute carrying a mandatory minimum penalty went to trial
more than twice as often as drug offenders who were not convicted of an offense carrying a
mandatory minimum penalty. Of the 15,831 offenders convicted of a drug statute carrying a
mandatory minimum penalty in fiscal year 2010, 95.5 percent (n=15,125) pled guilty while 4.5
155

percent (n=706) proceeded to trial. By comparison, 98.4 percent (n=7,966) of offenders
convicted of a drug statute not carrying a mandatory minimum penalty in fiscal year 2010 pled
guilty and 1.6 percent (n=127) proceeded to trial. Drug offenders who were most likely to plead
guilty, however, were those offenders eligible for relief from a mandatory minimum by operation
of the safety valve (99.6%, n=8,622).
On average, the longer the mandatory minimum an offender faced, the less likely the
offender was to plead guilty. In fiscal year 2010, 97.4 percent (n=6,536) of drug offenders
convicted of a drug offense carrying a five-year mandatory minimum provision pled guilty. This
compared to 95.2 percent (n=7,343) of drug offenders convicted of a drug offense carrying a tenyear mandatory minimum penalty, 87.1 percent (n=603) of drug offenders convicted of a drug
offense carrying a 20-year mandatory minimum penalty, and 71.2 percent (n=109) of drug
offenders convicted of a drug offense carrying a mandatory minimum penalty of life.
3.

Geographic Variations

Application of mandatory minimum penalties for drug offenses varied significantly both
by circuit and by district, which is largely attributable to differences in the sizes of the relevant
caseloads.626 The First Circuit reported the highest percentage (42.8%, n=749) of cases
involving a drug mandatory minimum, followed by the D.C. Circuit (34.6%, n=123) and the
Eighth Circuit (30.8%, n=1,463). Conversely, in the Tenth Circuit offenders were convicted of a
drug offense carrying a mandatory minimum penalty in 13.6 percent (n=888) of cases.
The volume of cases in the 94 judicial districts varied, which had an impact on the
percentage of drug cases involving a mandatory minimum penalty.627 Five of the 94 judicial
districts reported more than 500 drug cases involving a mandatory minimum penalty: Southern
Texas (n=1,074), Western Texas (n=962), Southern California (n=666), Southern Florida
(n=536), and Middle Florida (n=504). See Figure 8-2.

626

See Table D-6 (Mandatory Minimum Status for Drug Offenders in each Circuit and District (Fiscal Year 2010))
in Appendix D of this Report.

627

Id.

156

Figurt' 8-2
I'umbt'l' ofOfft'lldt'rs COIn'ktt'd of fill Offt'llst' Carrying
Drug :\falldatol')" Minimum P('nalt:,' b:,' Distrkt
Fiscal Yt'ar 2010

fI

~.....

SOUKCE,

(l

E3 "'0

100 <o?U

u.s. ~ ("""""""", lOIOlhtofilo, USSCFYIO

Districts reporting a high percentage of drug mandatory minimum cases included Puerto
Rico (59.5%, n=464), Minnesota (49.7%, n=239), Southern Iowa (47.5%, n=199), Hawaii
(44.9%, n=71), and Nebraska (43.1%, n=245). See Figure 8-3.628 In contrast, in the District of
New Mexico, offenders were convicted of a drug offense carrying a mandatory minimum penalty
in 8.3 percent (n=303) of all cases.

628

The figure does not include those judicial districts located in territories of the United States.

157

Figurl' 8-3
Pl'I'Cl'ut of Offl'nd('l's Cou\'ktl'd of 1m Offl'usl' Cal'l'ying a Drug Maudatory Minimum
P('I1Jl.lty
By District
Fiscal Yl'Jl.r 1010
All

.

Immi<Jl'atiou

Ca~t's

Ca~t'~

Exdudt'd

-~..•

_

SOUKfE, U.5.

4.

10~
30 to

c:::::J <

39~

E3

10 to 19~
40 to 49"

c::::::J
20 to
_
> SO"

29~

s..-=c e-""", lOIOD>t.~,USSCTY10

Relief from the Mandatory Minimum Penalty

In fiscal year 2010, more than half (54.4%, n=8,619) of drug offenders convicted of an
offense carrying a mandatory minimum penalty received relief from the mandatory minimum
penalty. Approximately one quarter (26.1%, n=4,136) of the drug offenders received relief
through operation of the safety valve alone. Drug offenders who did not qualify for the safety
valve but who provided substantial assistance to the government accounted for 19.3 percent
(n=3,062) of all drug offenders convicted of an offense carrying a mandatory minimum penalty.
An additional 9.0 percent (n=1,421) of drug offenders received relief from the mandatory
minimum penalty by qualifying for application of both the safety valve and substantial assistance
provisions. See Figure 8-4.

158

Figurt' 8-4
P{'I'ft'1l1 of Offt'lId{'l's COIn'ictt'd of llU Offt'llst' Cal'l')'illg a Drug :\falldlltol')' I\1illimum
Pt'llalty "'ho ,\,,,,,1'' ' Rt'Ii('\'{'d of til.. . Pt'II11lty
FiSflll Yt'ar 1010
Subsmntial.-\5si~tallc~

All

Whil~

Black

Hi~pallic Oth~t'

• Sarfl}' \illn

:\lal~

• Sub .-\5sl & S\'

Ffmalf

U,S,

"011-

Citiz~n Citiz~n

SOUKCEc

u.s_~e-"",,'OIOD>t.Mo,USSCTYIO

The rate at which offenders received relief from the mandatory minimum penalty through
these provisions varied by race, gender, and citizenship.629 For example, White offenders
qualified for some form of relief from a mandatory minimum penalty most often, with 63.7
percent (n=2,328) of all White offenders convicted of an offense carrying such a penalty
obtaining relief from the penalty. Black offenders qualified for relief from mandatory minimum
penalties least often, in 39.4 percent (n=1,890) of cases in which they were convicted of an
offense carrying such a penalty.
Almost three-fourths of all female drug offenders (73.0%, n=1,176) received relief from
the mandatory minimum penalty, compared to just over half (52.3%, n=7,443) of male offenders.
Non-citizen offenders received relief from the mandatory minimum penalty more often (69.5%,
n=3,300) than United States citizens (48.0%, n=5,317). See Figure 8-4.
The manner in which relief from a mandatory minimum penalty was obtained also varied
by race and citizenship of the offender. Other Race offenders most often received such relief
through operation of the safety valve provision, alone or in conjunction with providing
substantial assistance (48.4%, n=192). Hispanic offenders convicted of a drug offense carrying a
mandatory minimum penalty received safety valve relief in 46.3 percent (n=3,222) of such cases.
Conversely, Black offenders qualified for safety valve relief in 14.4 percent (n=692) of such
cases, either alone or in conjunction with providing substantial assistance to the government.
This difference is largely attributable to the criminal history of Black drug offenders. More than
629

Figure 8-4 (Percent of Offenders Convicted of an Offense Carrying a Drug Mandatory Minimum Penalty Who
Were Relieved of the Penalty) shows the breakdown by categories. For purposes of this discussion, the rates at
which offenders received safety valve relief reflect both cases in which such relief was given alone and those in
which it was given after the offender’s substantial assistance to the government.

159

75 percent (75.6%, n=3,629) of Black drug offenders convicted of a drug offense carrying a
mandatory minimum penalty have a criminal history score of more than one point under the
sentencing guidelines, which disqualifies them from application of the safety valve.630 More
than half of all female drug offenders (54.7%, n=882) received relief from the mandatory
minimum penalty pursuant to operation of the safety valve, compared to approximately one-third
(32.9%, n=4,675) of male offenders. See Figure 8-4.
Non-citizens most often received relief from a mandatory minimum penalty in drug
offenses through operation of the safety valve provision, alone or in conjunction with providing
substantial assistance. In 59.7 percent (n=2,835) of all drug offenses carrying such a penalty and
in which a non-citizen was the offender, the offender received relief from the mandatory
minimum penalty through application of the safety valve. The rate in drug offenses involving a
United States citizen was 24.6 percent (n=2,720). Some of this difference may be attributable to
the fact that non-citizen offenders tended to have less substantial criminal histories, when
compared to United States citizen offenders, because criminal history calculations under Chapter
4 of the Guidelines Manual exclude sentences resulting from foreign convictions.631
In contrast, United States citizens obtained relief from a mandatory minimum penalty for
providing substantial assistance to the government more often than non-citizens offenders.
United States citizens received relief from a mandatory minimum penalty by providing
substantial assistance, by itself or in conjunction with safety valve relief, in 31.8 percent
(n=3,523) of their cases while non-citizens obtained relief in this manner in only 20.2 percent
(n=959) of their cases. The differences were less pronounced when the race of the offender was
examined.
The rate at which offenders of different races received relief from a mandatory minimum
penalty providing substantial assistance to the government, either alone or in conjunction with
the safety valve provision, also varied. Other Race offenders received relief from the mandatory
minimum penalty most often by providing substantial assistance to the government, in 42.8
percent (n=170) of the cases in which they were the offender. White offenders received relief
through this provision in 36.8 percent (n=1,345) of the cases in which they were the offender,
followed by Black offenders at 29.6 percent (n=1,421) and Hispanic offenders at 22.1 percent
(n=1,541). More than one-third (37.9%, n=612) of female drug offenders received relief from
the mandatory minimum penalty by providing substantial assistance compared to 27.3 percent
(n=3,871) of male drug offenders. See Figure 8-4.
5.

Sentencing Outcomes
a.

Average sentence length

The average sentence for drug offenders convicted of an offense carrying a mandatory
minimum varied, and was largely dependant upon the type of drug involved in the offense and
630

See supra note 596.

631

See supra notes 288 and 598.

160

whether the offender obtained relief from the mandatory minimum penalty. For example, the
average sentence for offenders convicted of an offense carrying a mandatory minimum penalty
was highest in crack cocaine cases at 118 months,632 whereas the average sentence for such
offenders in marijuana cases was less than half of that, at 55 months. The average sentence for
drug offenders who remained subject to the mandatory minimum penalty at the time of
sentencing (i.e., who did not receive some form of statutory relief) was 132 months. In contrast,
the average sentence for drug offenders who obtained relief from the mandatory minimum
penalty was 61 months.
The form of relief from a mandatory minimum penalty affected the average sentence
imposed. Drug offenders who qualified for the safety valve and who also provided the
government with substantial assistance had the lowest sentences, at 33 months on average. The
average sentence for drug offenders who did not qualify for safety valve relief but who provided
substantial assistance to the government was 90 months. Offenders who received relief from a
mandatory minimum penalty through application of the safety valve but who did not also provide
substantial assistance to the government received an average sentence of 49 months.
b.

Position relative to the guideline range

In order to determine whether these differences in sentence length are partially
attributable to departures and variances, the Commission examined the sentence imposed on
drug offenders relative to the applicable guideline range. This analysis can provide some
assessment of the mandatory minimum penalty, to the extent that a departure or variance may
reflect the court’s concern that the mandatory minimum penalty is too severe. Table 8-3
compares the position of sentences relative to the guideline range among drug offenders, drug
offenders convicted of an offense carrying a mandatory minimum penalty, drug offenders
convicted of an offense carrying a mandatory minimum penalty and relieved of application of the
mandatory minimum penalty, and drug offenders who remained subject to the mandatory
minimum penalty at the time of sentencing because they did not qualify for any form of statutory
relief. Approximately one-quarter (24.4%, n=1,756) of drug offenders subject to the mandatory
minimum penalty at sentencing received a non-government sponsored below range sentence.

632

It is important to note that the majority of the crack cocaine offenders sentenced in fiscal year 2010 were
sentenced prior to August 3, 2010, the date of enactment of the Fair Sentencing Act of 2010.

161

Table 8-3
Sentence Relative to the Guideline Range of Drug Offenders
Fiscal Year 2010

All
Offenders
Total (# of offenders)

Relieved of
Application of
Mandatory
Minimum
Penalty

Convicted of a
Statute Carrying
a Mandatory
Minimum Penalty

23,964

15,831

Subject to
Mandatory
Minimum Penalty
at Sentencing

8,619

7,212

Sentence Relative to the Guideline Range (Percent)
Within Range

45.7

43.7

24.2

67.0

Above Range

1.0

0.8

0.3

1.3

Substantial Assistance '5K1.1

23.9

28.3

52.0

0.0

Other Government Sponsored
(no '5K1.1)

9.5

8.0

8.6

7.3

20.0

19.2

14.9

24.4

Other Below Range

Figure 8-5 compares the average sentence imposed in drug cases in which offenders were
convicted of an offense carrying a mandatory minimum penalty to the bottom of the applicable
guideline range for offenders sentenced from fiscal year 1995 to 2010. As can be seen from this
figure, the average sentence imposed has remained above five years of imprisonment.
Figul'(, 8-5
A"('I'ng(' G uid('lin(' :\finimUIIl nnd A"(,I'n g(' S('11t('nc(' fol' 0 ff('n dns Con"ict('d of nn
Off('ns(' Cnrrying n Drug Mnndntory :\finimulIl P('nnlty
All Dl'ugs
Fiscnl Y('nl's 1991- 2010
_Guidpliup :\IiuilnUln

. . . . SPUlPUCP

:\Iourh,

220+
240 ~~~==========================

t:============================
160§
1'0 . . ~~
60
20+t:============================
lSO
200

+

120
100

go

'0

O+-~~~~~~~~~~~~~-

~~

~~~~~~~~~~N_~~~_~~~~_~~

,'1'

5OUKCE,

,OJ

,<Ii

,'1' ,'1'

,OJ

,OJ

,'1'

,<if' ...~

...'1>

~'r

u.s. ~ c_".... 1"1 """"P 2010D_~, USSCFY1'191_ USSCFY10l0

162

...~

~';s

~'r ~';s

...~ ...~

~'r

...'11>

Figures 8-6 and 8-7 show the impact on sentences from substantial assistance departures
and from other below range sentences.633 These figures compare the average guideline range
minimum to the average sentence imposed.

Figur(' 8-6
An'("ag{' Guid{'lhl{, :\finimum and A Y{'I'ag{' Sl'utl'nc{' fol' Off('ndns ConYict('d of an
Off('lIs{' Carrying a Drug Mandator)' :\finimum P('nalty
Substalltial Assistall{"(,
All Drugs
Fiscal Y{'ars 1991- 2010
240

:\Iolllhs

__Guideline :\liuimnm

220

200
180
160
140
120

100
80
60
40

'"
50UKCEc

u.s....._

C_,,,,,,, 1991 """"p 2010D.... ~, USSCTY1'191_ USSCFY2010

633

The term “other below range sentences” includes all non-government sponsored below range sentences, and any
non-§5K1.1 government sponsored below range sentences. The Commission refined the methods for distinguishing
non-§5K1.1 government-sponsored departures from other downward departures beginning in fiscal year 2003. In
order to show trends with data preceding fiscal year 2003, this report does not make the distinction for purposes of
the trend analyses. After Booker, the Commission further refined its coding procedures regarding sentences outside
the guideline range. Post- Booker data collection and reporting of out of range sentences includes a larger number
of categories. The Post- Booker methodology is used for all other sentencing outcomes discussed in this report.

163

Figul'(, 8-7
A v('I':tg(' G uid('lill(, :\fillimum :t lid A V(,I':t g(' S('I!t('IIC(' fol' 0 ff('11 dns COilvict('d of :t II
Off('ns(' C:trl'ying :t Drug M:tnd:ttor)' :\finhnmn P('n:tIf1'
NOll-Subst:tuti:t1 Assist:tuct> Bt>low R:tugt> St>utt>llC('
All Dl'ugs
Fisc:tl Yt>:tI'S 1991- 2010
240

;'"I""""".,'-

-_G_"_;'_,_lin_'_'_li_·"_;_'"_"_'_
" _-__5_'"_'_,_'"_'

_

+-220~=============

200

160
180

j~~"';::::<;~=====================:

I40~~~

120
100
80

60
40

2~ t::::=::::~::::=::::::::::::::=::::::::=::::~::::=::::::::::::::=::::::::=::::~::
~~~~~~~~~~~-~~~~-~~~~~

~~' ~'~.~

5OUKCE,

~

~'~.~

~

~-~~~

~

~

~~~

~

~

~

u.s. Soa....... c_".... 1!'91 """"P 2010D_~, USSCTY1'191_ U55CFY2010

In fiscal year 2010, the average extent of substantial assistance departures in drug
offenses was 48.8 percent (67 months) from the minimum of the otherwise applicable guideline
range. In fiscal year 2010, the average extent of non-government sponsored below range
sentences (i.e., departures and variances combined) in drug offenses that carried a mandatory
minimum penalty was 29.8 percent (34 months) from the minimum of the otherwise applicable
guideline range.634
6.

Prison Impact

At the end of fiscal year 2010, slightly more than half (53.8%, n=103,194) of the 191,757
offenders incarcerated in the BOP were drug offenders. See Figure 8-8. The proportion of the
federal prison population made up of drug offenders has decreased since 1995. In 1995, drug
offenders constituted almost two-thirds (62.1%, n=44,637) of the federal prison population. See
Figure 8-8. This decline in the proportion of drug offenders is likely attributable to changes in
the federal docket discussed in Chapter 4, supra.

634

The extent of below range sentences varies by circuit. The Second Circuit reported the highest extent of
substantial assistance departures in drug offenses at 39.8% (39 months) and the Fourth Circuit reported the lowest at
23.1% (34 months). The Third Circuit reported the highest extent of non-government sponsored below range
sentences in drug offenses at 36.0% (46 months) and the Eighth Circuit reported the lowest at 25.5% (28 months).

164

Figlll't> 8-8
Nllmbt>1' of Offlmdt>l's ill Pl'isou 011 St>ptt>mb('1' 30
Drug Off('lIdt>l's
1995 - 2010

:"umbet'
180,000

'"0.000
160,000

t~======:;;~2==':::~::'
.....

140,000 +-------------=~ ~------------

"o.ooo~~~

100,000

80.000
60.000

~0.000

J

10.000 - - - - - - - - - - - - - - - - - - - - - - - - - -

° -c'

~~,~~,~-,~~c,~~,~~,~-,~~~~;,~-,~~c,~~,~~,~-,~,

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

~

The proportion of drug offenders in prison convicted of an offense carrying a mandatory
minimum penalty has slightly increased over time. For example, in 2010, 84.6 percent
(n=87,323 of the 103,194) of drug offenders in federal prison had been convicted of an offense
carrying a mandatory minimum penalty, compared to 78.2 percent (n=34,930 of the 44,637) in
1995. In contrast, however, the proportion of drug offenders in federal prison subject to a
mandatory minimum penalty at sentencing has remained relatively stable, with 55.9 percent in
1995 (n=24,971) and 52.9 percent in 2010 (n=54,635).635 This is attributable to the operation of
the safety valve because substantial assistance rates during this time period have been relatively
stable.
7.

Offender Function

To provide a more complete profile of federal drug offenders, the Commission undertook
a special coding and analysis project in 2010. Using a 15 percent sample of drug cases reported
to the Commission in fiscal year 2009, the Commission assessed the functions performed by
drug offenders as part of the offense.636
Offender function was determined by a review of the offense conduct section of the
presentence report. The Commission assessed the most common function an offender performed
during an offense, independent of any application of sentencing enhancements and reductions.
635

See Figure D-1 (Percentage of Offenders in Prison Not Convicted of an Offense Carrying a Mandatory
Minimum, Convicted of an Offense Carrying a Drug Mandatory Minimum Penalty and Subject to a Mandatory
Minimum Penalty at Sentencing (1995–2010)) in Appendix D of this Report.

636

The Commission used this methodology for the analysis of offender functions in powder cocaine and crack cases
reported in the Commission’s 2007 Report to the Congress: Cocaine and Federal Sentencing Policy.

165

In those cases where an offender performed different functions at different times, the
Commission determined the most serious function the offender performed. For purposes of
statistical analysis, offender function was assigned based on the most serious function performed
by the offender in the drug offense, even if the offender more frequently performed a less serious
function. Finally, offenders at higher levels of the drug distribution chain are presumed to be
more culpable based on their greater responsibilities and higher levels of authority as compared
to other participants in the offense.
The Commission assigned each offender to one of 21 separate function categories based
on his or her most serious conduct as described in the Presentence Report and not rejected by the
court on the Statement of Reasons form. 637 The 21 categories were combined into nine
categories to facilitate analysis and presentation of the data.638 Function categories are displayed
on the figures in this chapter in decreasing order of culpability from left to right. The categories
described below represent a continuum of decreasing culpability:639


High-Level Suppler/Importer: Imports or supplies large quantities of drugs (one
kilogram or more); is near the top of the distribution chain; has ownership interest
in the drugs; usually supplies drugs to other drug distributors and generally does
not deal in retail amounts.



Organizer/Leader: Organizes or leads a drug distribution organization; has the
largest share of the profits; possesses the most decision-making authority.



Grower/Manufacturer: Cultivates or manufactures a controlled substance and is
the principal owner of the drugs.



Wholesaler: Sells more than retail/user-level quantities (more than one ounce) in
a single transaction, purchases two or more ounces in a single transaction, or
possesses two ounces or more on a single occasion, or sells any amount to another
dealer for resale.



Manager/Supervisor: Takes instruction from higher-level individual and manages
a significant portion of drug business or supervises at least one other coparticipant but has limited authority.

637

Terms used to describe offender function in this analysis do not necessarily correlate with guideline definitions
of similar terms. For example, as seen below, the definition of manager/supervisor used in the coding project to
describe offender function does not match the guideline definition of manager or supervisor in USSG §3B1.1
(Aggravating Role). Furthermore, the determination of offender function was made without regard to whether
USSG §§3B1.1 and 3B1.2 applied.

638

A complete list of the 21 function categories and definitions appears in Appendix H of this Report.

639

There were also functions deemed “Secondary” and “Miscellaneous” that were identified but will not be
discussed in this report. “Secondary” offenders (8.6% of the offenders in the sample) include offenders who were
renters, loaders, lookouts, enablers, and users. “Miscellaneous” offenders (1.9%) include offenders who were pilots,
captains, bodyguards, chemists, cooks, financiers, and money launderers. See the complete list of functions and
definitions in Appendix H for detailed descriptions of these functions.

166



Street-Level Dealer: Distributes retail quantities (less than one ounce) directly to
users.



Broker/Steerer: Arranges for drug sales by directing potential buyers to potential
sellers.



Courier: Transports or carries drugs using a vehicle or other equipment.



Mule: Transports or carries drugs internally or on his or her person.640

In the cases analyzed, Courier was the most common function, representing 23.0 percent
of all offenders, followed by Wholesaler (21.2%), Street-Level Dealer (17.2%), and High-Level
Supplier/Importer (10.9%). Manager and Supervisor were the least common functions, with
each performed by only 1.1 percent of offenders.641
The Commission also analyzed the function of those drug offenders convicted of an
offense carrying a mandatory minimum penalty. The majority of offenders in nearly every
function category were convicted of an offense carrying a mandatory minimum penalty, although
higher-level functions tended to be convicted of such statutes at higher rates. Offenders who
functioned as Managers were convicted of an offense carrying a mandatory minimum penalty at
the highest rate (92.3%), followed by those who functioned as Supervisor (84.2%). Managers
and Supervisors, however, as noted above accounted for only 1.1 percent of all drug offenders.
Among the more common categories, particularly the categories High-Level Supplier/Importer,
Wholesaler, Street-Level Dealer, Courier, and Mule, the rate of conviction of a statute carrying a
mandatory minimum penalty decreased with the culpability of the function. Thus, High-Level
Supplier/Importer offenders were convicted of an offense carrying a mandatory minimum
penalty in 82.8 percent of the cases, while Street-Level Dealer offenders were convicted of such
a statute in 65.5 percent of the cases. Only two functions – Courier and Mule – were convicted
of an offense carrying a mandatory minimum penalty in less than half of the cases (49.6% and
43.1%, respectively). See Figure 8-9.

640

As these definitions show, some definitions rely in part on the quantity of drugs involved to determine the
offender’s most serious function. For example, an offender qualifies as a “wholesaler” by buying or selling a
specified quantity of drugs (at least 1 ounce but less than 1 kilogram), or because he or she possessed at least 2
ounces of drugs.

641

See Figure D-2 (Distribution of Offender Function Fiscal Year 2009 Sample Data) in Appendix D of this Report.

167

Figure 8-9
Pt'ITt'nt of Offt'nd('l's Convicted of an Off('nst' Cal'rying a
Dl'Ug M:md:ttol'y Minimum Pt'nalty and Subjt'ct to a M:mdaTOl'y Minimum Pt'llalt)'
by Offt'ndN" Function
Fiscal Yt'ar 2009 Samplt' Data
100.0

• ConviCTed • SnbjKI Afler Relief

POI'ronl

SO.O

60.0

40.0

.tW. ----

4404--

••

8.~

9.~

20.0

17.
0.0

"

~,

",

",V

0"

"

",

" ""

.'

,,.~

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~..",,;

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The Commission’s analysis also revealed that the quantity of drugs involved in an
offense is not closely related to the offender’s function in the offense.642 The Commission
analyzed the median base offense level by offender function for the five major drug types. The
median base offense level is representative of the quantity of drugs attributable to the offender
because the Guidelines Manual uses the quantity of drugs involved in the offense to determine
the base offense level in a case. There was not a strong correlation between base offense level
and level of the offender’s function in the offense. See Figure 8-10.

642

For additional discussion regarding the role of drug quantity in mandatory minimum sentencing, see Chapter 12.

168

Figurl' 8-10
Mf'dian Basf' Offf'lIsf' and Final OITf'nSf' Ll'Vf'ls by OITl'lldf'r FUllflion
Fiscal Yl'ar 2009 Sawpll' Data
JlI SOL ~Ild TOl _ _ _ _ _ _ _ _--"_OOLJ.EOLJ6

,."
""
"
""
""
"",0+
,,•
Jl

i

As discussed more fully in Chapter 2, the available legislative history suggests that
Congress intended to target the mandatory minimum penalties to “major” traffickers (ten-year
penalty) and “serious” traffickers (five-year penalty). To do so, Congress established drug
quantity thresholds for each major drug type that would trigger those minimum punishments.643
The Commission, in turn, incorporated those thresholds into the base offense levels under the
sentencing guidelines. The Commission’s analysis suggests that the mandatory minimum
penalties for drug offenses may apply more broadly than Congress may have originally intended.
As a result of the quantity of drugs involved in the offense, base offense levels that included or
exceeded the five-year mandatory minimum penalty often applied to every function, even those
that may not be considered functions typically performed by “major” or “serious” drug
traffickers. However, the impact of such penalties on certain offenders who perform lower-level
functions is significantly ameliorated by the combined effect of the safety valve and downward
guideline adjustments, resulting in final offense levels that are lower than the final offense levels
for higher level offenders. See Figure 8-10.
In general, offenders who performed more serious functions were more likely to receive
an aggravating role adjustment under the guidelines644 than offenders who performed less serious
functions.645 Organizer/Leader offenders received the aggravating role adjustment in 70.4
643

See supra Chapter 2.

644

See USSG §3B1.1.

645

See Figure D-3 (Percent of All Offenders in Which the Aggravating Role Adjustment Applied and For Offenders
Convicted of an Offense Carrying a Mandatory Minimum Penalty By Offender Function (Fiscal Year 2009 Sample
Data)) in Appendix D of this Report.

169

percent of the cases, followed next by Managers (53.8%), and Supervisors (36.8%). No
offenders who performed the functions of Street-Level Dealer, Broker, or Mule received the
aggravating role adjustment. Less than one percent (0.1%) of offenders who performed the
function of Courier received the aggravating role adjustment.
Conversely, offenders who performed less serious function were more likely to receive a
mitigating role adjustment under the guidelines646 than offenders who performed more serious
functions.647 Couriers received the mitigating role adjustment in 54.0 percent of the cases,
followed next by Mules (47.9%) and Brokers (27.3%). No offenders who performed the
functions of Organizer/Leader, Manager, or Supervisor received the mitigating role adjustment.
In addition to analyzing the rate of conviction of a statute carrying a mandatory minimum
penalty, the Commission also analyzed the function of those offenders who obtained either type
of relief from a mandatory minimum penalty. In general, offenders who performed low-level
functions obtained relief from mandatory minimums at a higher rate than offenders who
performed high-level functions. No function higher than Street-Level Dealer obtained relief in
more than 58.3 percent of the cases (for the Manager function), while every function lower than
Street-Level Dealer obtained relief in at least 76.5 percent of the cases (for the Broker function).
Courier and Mule offenders obtained relief at the highest rates of any function, at 80.1 percent
and 84.7 percent, respectively. Nonetheless, there were some exceptions to this general trend.
Most notably, offenders who functioned as High-Level Supplier/Importer obtained relief at a
higher rate (51.9%) than offenders who functioned as Wholesaler (47.4%) or Street-Level Dealer
(31.7%). See Figure 8-11.

646

See USSG §3B1.2.

647

See, Figure D-4 (Percent of All Offenders in Which the Mitigating Role Adjustment Applied and For Offenders
Convicted of an Offense Carrying a Mandatory Minimum Penalty By Offender Function (Fiscal Year 2009 Sample
Data)) in Appendix D of this Report.

170

Figlll't> 8-11
P('I....('1lT of Off('ndt'!'s Convictt>d of an Off('nst> Car!')"ing a D!'ug MandaTO!')" J\'linimllm
P(,llalty 'Vbo "'t'!'t> Rt>!i(','t>d of till' Pt>llalt)' by Off(,lldt>!' Fnllctioll
Fiscal Yt>ar 2009 Samplt> Data

100.0

iP"'"'r.""""'--~

80.0

60.0

40.0

20.0

0.0

l'

.'b"

~.

.~

~v

0"

"

,.-.' ,

.~

0'"

",

"
.~""

"

,-.'.'

..'

"'.....~

.~

,.'

</-.
.v

Furthermore, the correlation between function in the offense and relief from mandatory
minimum penalties varied depending on the type of relief. Among those offenders who received
relief from the mandatory minimum penalty by providing substantial assistance to the
government, the Commission’s analysis shows that offenders who performed high-level
functions generally obtained relief for substantial assistance at higher rates than offenders who
performed low-level functions. The highest rates of relief based on substantial assistance were
for Manager (50.0%) and Organizer/Leader (39.1%). The lowest rates of relief based on
substantial assistance were for Mule (19.5%), Street-Level Dealer (23.4%), and Courier (27.1%).
With respect to offenders who received relief from a mandatory minimum penalty
through the safety valve provision alone, the Commission’s analysis shows that offenders who
performed low-level functions were more likely to obtain that type of relief than were offenders
who performed high-level functions. No function higher than Street-Level Dealer obtained
safety valve relief in more than 24.8 percent of the cases (for the Grower/Manufacturer
functions). In fact, offenders who performed as Organizer/Leaders, Street-Level Dealers and
Managers received safety valve relief at the lowest rates (5.8%, 8.3%, and 8.3%, respectively).
Conversely, every function lower than Street-Level Dealer obtained relief in at least 45.7 percent
of the cases and Courier and Mule offenders received safety valve relief at the highest rates
(53.0% and 65.3%, respectively).
Offenders who performed as Street-Level Dealers remained subject to the mandatory
minimum penalty at the highest rate (68.3%) followed by Organizer/Leaders (55.2%) and
Wholesalers (52.6%). Offenders who performed low-level functions remained subject to the
mandatory minimum penalty at the lowest rates (Mules (15.3%), Couriers (19.9%), and Brokers
(23.5%)).
171

The high rate of safety valve relief for offenders performing lower-level functions in turn
has enabled downward adjustments in the guidelines in many cases to differentiate these least
serious drug offenders from the more serious drug offenders. For example, offenders convicted
of a statute carrying a mandatory minimum penalty acting as Mules and Couriers received a
mitigating role adjustment under §3B1.2 in 51.4 percent and 39.8 percent of their cases,
respectively. Conversely, offenders convicted of a statute carrying a mandatory minimum
penalty acting as Organizer/Leaders, Managers, and Supervisors received an aggravating role
adjustment under §3B1.1 in 74.7 percent, 52.8 percent, and 37.5 percent of their cases,
respectively. As a result of these and other guideline adjustments, such as the “mitigating role
cap” in §2D1.1(a), offenders performing lower-level functions received final offense levels
significantly lower than for those offenders performing higher-level functions.648 The median
final offense levels for Mules (level 20) and Couriers (level 21), for example, were significantly
lower than for High-Level Suppliers/Importers (level 29), Organizer/Leaders (level 34), and
Managers (level 33) and Supervisors (level 28). See supra Figure 8-10.
As a result of the combined effect of the safety valve and applicable guideline
adjustments, certain offenders performing lower-level functions received significantly shorter
sentences than offenders performing higher-level functions. For example, the average sentences
for Mules (29 months) and Couriers (39 months) were significantly shorter than for High Level
Suppliers/Importers (101 months), Organizer/Leaders (154 months), Wholesalers (103 months),
and Managers (147 months). See Figure 8-12.

648

See Figures D-3 (Percent of All Offenders In Which the Aggravating Role Adjustment Applied and For
Offenders Convicted of an Offense Carrying a Mandatory Minimum Penalty By Offender Function (Fiscal Year
2009 Sample Data)), and D-4 (Percent of All Offenders In Which the Mitigating Role Adjustment Applied and For
Offenders Convicted of an Offense Carrying a Mandatory Minimum Penalty By Offender Function (Fiscal Year
2009 Sample Data)) in Appendix D of this Report.

172

Figul't' 8-12
A"{'I'ag(' St'utt'llc(, by Offt'lld('r FUllfTioll
Fiscal Yt'ar 2009 Sampl(' Data

150

100

50

0

,55
5·

,~

~.

.,~.

D.

0"

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.~
(,"

.- "••.-•
,5'

~

.$"<>

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5<

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,5'
~"
.~

POWDER COCAINE OFFENSES

Powder cocaine offenses accounted for almost one-quarter of all drug offenses in fiscal
year 2010. In fiscal year 2010, 5,571 of the 23,964 drug offenders (23.5%) committed an
offense involving powder cocaine. The majority of powder cocaine offenders (79.8%, n=4,447)
were convicted of an offense carrying a mandatory minimum penalty. See Table 8-4. Less than
half of the powder cocaine offenders convicted of an offense carrying a mandatory minimum
penalty (38.6%, n=1,718) were subject to the mandatory minimum at sentencing. See Table 8-4.
1.

Demographic Characteristics of Powder Cocaine Offenders

The race, citizenship, and gender of powder cocaine offenders subject to the mandatory
penalty at sentencing were notably different from powder cocaine offenders generally and for
those powder cocaine offenders convicted of an offense carrying a mandatory minimum penalty.
Table 8-4 presents information on the demographic characteristics of powder cocaine offenders.
This information is then compared to that for powder cocaine offenders convicted of an offense
carrying a mandatory minimum penalty and then to those powder cocaine offenders who
remained subject to the mandatory minimum at the time of sentencing because they did not
qualify for any form of statutory relief.
More than half (54.9%, n=3,054) of all powder cocaine offenders were Hispanic. A
similar proportion of Hispanic offenders were convicted of an offense carrying a mandatory
minimum penalty (58.5%, n=2,595) and remained subject to a mandatory minimum penalty at
the time of sentencing (55.2%, n=947).

173

The sentencing of Black powder cocaine offenders was different. Approximately one
quarter of all powder cocaine offenders (26.7%, n=1,486) are Black. Although a comparable
proportion of powder cocaine offenders were also convicted of an offense carrying a mandatory
minimum penalty (24.5%, n=1,087), the proportion of Black powder cocaine offenders subject to
the mandatory minimum at sentencing was higher, at almost one-third (32.4%, n=555). In fact,
Black offenders have the highest such rate, while the proportions of all other demographic
groups subject to the mandatory minimum decrease relative to their proportion of all powder
cocaine cases. The majority of Black powder cocaine offenders (64.7%, n=703) did not qualify
for safety valve relief from the mandatory minimum penalty due to their criminal history.649
Likewise, criminal history differences between United States citizen and non-citizen
powder cocaine offenders likely contribute to the increase in proportion of United States citizen
powder cocaine offenders (68.0%, n=1,167) subject to the mandatory minimum penalty at
sentencing, and the decrease in proportion of non-citizen powder cocaine offenders (32.0%,
n=550) subject to the mandatory minimum penalty at sentencing.

649

See Figure D-6 (Race of All Powder Cocaine Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty by Criminal History Category (Fiscal Year 2010)) in Appendix D of this Report.

174

Table 8-4
Demographic Characteristics of Powder Cocaine Offenders
Fiscal Year 2010

Convicted of a Statute
Carrying a Mandatory
Minimum Penalty

All
Offenders
Total (# of offenders)

5,571

Relieved of
Application of
Mandatory
Minimum
Penalty

4,447

Subject to
Mandatory
Minimum Penalty
at Sentencing

2,729

1,718

Race of Offender (Percent)
White

16.7

15.5

18.2

11.3

Black

26.7

24.5

19.5

32.4

Hispanic

54.9

58.5

60.5

55.2

1.6

1.5

1.8

1.1

Other

Citizenship of Offender (Percent)
United States Citizen

62.4

58.4

52.4

68.0

Non-U.S. Citizen

37.6

41.6

47.6

32.0

Gender of Offender (Percent)
Male
Female

90.6

91.7

88.8

96.3

9.4

8.3

11.3

3.7

Finally, female powder cocaine offenders received relief from the mandatory minimum
penalty at a higher rate than male powder cocaine offenders. As a result, female powder cocaine
offenders represent a small proportion (3.7%, n=64) of the total powder cocaine offenders who
remained subject to the mandatory minimum penalty at sentencing. See Table 8-4.
Table 8-5 displays information about offense characteristics and criminal history
categories for these groups of offenders. Powder cocaine offenders subject to the mandatory
minimum penalty at sentencing appear to have higher instances of firearm and other weapons
involved in their offense conduct than all powder cocaine offenders. Moreover, powder cocaine
offenders who received an aggravating role adjustment were subject to the mandatory minimum
penalty at sentencing at a higher rate than powder cocaine offenders who qualified for a
mitigating role adjustment. Offenders who possessed a dangerous weapon or who received an
aggravating role adjustment did not qualify for safety valve relief from the mandatory minimum
penalty.650

650

See USSG §5C1.2.

175

The criminal histories of powder cocaine offenders convicted of an offense carrying a
mandatory minimum penalty closely mirror those of the overall powder cocaine offender
population, with around 60 percent of both populations (61.9%, n=2,754 and 59.1%, n=3,293,
respectively) of powder cocaine offenders in Criminal History Category I. In contrast, powder
cocaine offenders subject to a mandatory minimum penalty at sentencing had a much lower
percentage (37.8%, n=650) of offenders in Criminal History Category I.

Table 8-5
Guideline Sentencing Characteristics, Role in the Offense, and
Criminal History of Powder Cocaine Offenders
Fiscal Year 2010

Total (# of offenders)

All
Offenders

Convicted of a
Statute Carrying
a Mandatory
Minimum
Penalty

Relieved of
Application
of
Mandatory
Minimum
Penalty

Subject to
Mandatory
Minimum
Penalty
at Sentencing

5,571

4,447

2,729

1,718

Characteristics (Percent)
Weapon Specific Offense Characteristic

12.0

11.7

7.2

18.8

Firearms Mandatory Minimum Applied

5.4

6.8

3.5

12.0

40.0

42.9

69.9

0.0

8.0

9.6

6.1

15.2

18.3

18.3

25.8

6.4

Safety Valve Reduction

Role in the Offense (Percent)
Aggravating Role
Mitigating Role

Criminal History Category (Percent)
I

59.1

61.9

77.1

37.8

II

11.8

11.2

6.5

18.7

III

12.8

12.3

7.2

20.4

IV

5.7

5.2

3.3

8.3

V

2.6

2.3

1.5

3.6

VI

8.0

7.0

4.4

11.2

176

2.

Guilty Pleas and Trials

Powder cocaine offenders convicted of an offense carrying a mandatory minimum
penalty went to trial at a higher rate than powder cocaine offenders who were not convicted of an
offense carrying a mandatory minimum penalty. Of the 4,447 offenders convicted of an offense
carrying a mandatory minimum penalty in fiscal year 2010, 95.1 percent (n=4,229) pled guilty
and 4.9 percent (n=218) proceeded to trial. By comparison, 98.2 percent (n=1,090) of powder
cocaine offenders convicted of an offense not carrying a mandatory minimum penalty in fiscal
year 2010 pled guilty while 1.8 percent (n=20) of those offenders were convicted after a trial.
3.

Geographic Variations

As noted in drug cases generally, the 94 judicial districts varied significantly in the
number of powder cocaine cases reported to the Commission in fiscal year 2010. As a result, the
number of powder cocaine offenders convicted of an offense carrying a mandatory minimum
penalty in each district also varied. Thirteen of the 94 judicial districts reported 100 or more
powder cocaine offenders convicted of an offense carrying a mandatory minimum penalty in
fiscal year 2010: Southern Texas (n=341, 4.1% of the overall caseload in the district), Southern
Florida (n=302, 14.0%), Middle Florida (n=273, 16.4%), Western Texas (n=253, 3.8%),
Southern California (n=217, 7.2%), Southern New York (n=166, 12.5%), Puerto Rico (n=126,
16.2%), Eastern New York (n=116, 10.6%), Eastern Texas (n=116, 13.9%), Eastern Virginia
(n=112, 9.1%), Arizona (n=111, 2.2%), Northern Illinois (n=107, 13.4%), and South Carolina
(n=103, 8.4%). Most of these districts are either points of entry into the United States or are
located on known distribution routes from such districts. See Figure 8-13.

177

Figun' 8-13
Numb('r of Powd('r COC:lillt' Offt'udns Convictt'd of an Off('nst' C:l.I'l'ying a
Drug Mandatory Minimum Pt'n:lIt~y
By District
Fiscal Yt'ar 2010

SOUJ:CE,

U.s_~e-"",,'OIOIht.fil•.

USSCYYIO

As a percentage of the overall caseload, powder cocaine offenders convicted of an offense
carrying a mandatory minimum penalty were most common in the District of Maine, where 17.5
percent of the district’s criminal caseload (n=29 of 166 offenders) involved this type of offense,
as well as Middle District of Florida (16.4%, n=273 of the 1,660 offenders) and Puerto Rico
(16.2%, n=126 of 780 offenders).
4.

Relief from the Mandatory Minimum Penalty

In fiscal year 2010, almost two-thirds (61.4%, n=2,729) of powder cocaine offenders
convicted of an offense carrying a mandatory minimum penalty received relief from the
mandatory minimum penalty. Almost half (42.9%, n=1,907) of the powder cocaine offenders
received relief through operation of the safety valve. Powder cocaine offenders who did not
qualify for the safety valve but who provided substantial assistance to the government also
received relief and accounted for 18.5 percent (n=822) of all powder cocaine offenders
convicted of an offense carrying a mandatory minimum penalty. A smaller percentage (11.4%,
n= 509) of powder cocaine offenders received relief from the mandatory minimum penalty by
qualifying for application of both the safety valve and substantial assistance provisions. See
Figure 8-14.

178

Figm'(' 8-14
P(,l'c('nt of Powd('r Cocaill(, OffNld('l's Con"kt('d of all Off('ns(' CIU'l'ying a
Drug Mandatory Minimum P('nalty 'Vbo 'V('I'(' R('!i('\'('d of t!l(' P(,lIalty
Fiscal Y('ar 1010

_:'io Rolief
100.0

Sub,unti<ll

A"i,tan<~

_ Sartty \iI.h'.

_SubA"t&S\-

P~l.~nt

80.0
60.0

~o.o

20.0

"." .'"

Whil~

B1.1ck Hi,panic O'btr

:\lal~

F~mal•

r;.s.

:'ion-

Citizen

Ciliz~n

The rate at which offenders received relief from the mandatory minimum through these
provisions varied by race, gender and citizenship.651 For example, White offenders qualified for
some form of relief from a mandatory minimum penalty most often, with 71.9 percent (n=496)
of all White offenders convicted of an offense carrying such a penalty obtaining relief from the
penalty. Black offenders qualified for relief from mandatory minimum penalties least often, in
only 48.9 percent (n=532) of cases in which they were convicted of an offense carrying such a
penalty. See Figure 8-14.
Almost three quarters of all female powder cocaine offenders (73.3%, n=272) received
relief from the mandatory minimum penalty pursuant to operation of the safety valve, compared
to slightly less than half (40.1%, n=1,635) of male offenders. See Figure 8-14.
The manner in which relief from a mandatory minimum penalty was obtained also varied
by the race and citizenship of the offender. White powder cocaine offenders most often received
such relief through operation of the safety valve provision, alone or in conjunction with
providing substantial assistance. White offenders received safety valve relief in more than half
(53.3%, n=368) of the cases in which a mandatory minimum penalty applied. Conversely, Black
offenders qualified for safety valve relief in 20.8 percent (n=226) of the cases, either alone or in
conjunction with providing substantial assistance to the government. This difference is largely
attributable to the higher criminal history scores of Black offenders. More than half of Black
powder cocaine offenders (64.7%, n=703) convicted of a drug offense carrying a mandatory
651

Figure 8-14 (Percent of Powder Cocaine Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty Who are Relieved of the Penalty) shows the breakdown by categories. For purposes of this
discussion, the rates at which offenders received safety valve reflect both cases in which such relief was given alone
and those in which it was given after the offender’s substantial assistance to the government.

179

minimum penalty have at least two criminal history points under the sentencing guidelines,
which disqualifies them for application of the safety valve.
Non-citizens most often received relief from drug mandatory minimum penalties through
operation of the safety valve provision, alone or in conjunction with providing substantial
assistance. The safety valve applied in 59.5 percent (n=1,100) of powder cocaine cases
involving a non-citizen convicted of an offense carrying a mandatory minimum penalty. The
rate in such cases involving United States citizens was 31.0 percent (n=806). See Figure 8-14.
In contrast, United States citizen powder cocaine offenders obtained relief for rendering
substantial assistance to the government more often than non-citizen powder cocaine offenders.
United States citizens received relief from a mandatory minimum penalty by providing
substantial assistance, by itself or in conjunction with safety valve relief, in 35.0 percent (n=911)
of all cases while non-citizens obtained relief in this manner in only 22.7 percent (n=420) of the
cases in which they were the offender.
The rate at which offenders of different races received relief from a mandatory minimum
by providing substantial assistance to the government, either alone or in conjunction with the
safety valve provision, also varied. Other Race offenders received relief from the mandatory
minimum penalty most often by providing substantial assistance to the government, in 41.8
percent (n=28) of the cases in which they were the offender. Black offenders received relief
through this provision in 35.3 percent (n=383) of the cases in which they were the offender,
followed by White offenders at 34.4 percent (n=237) and Hispanic offenders at 26.2 percent
(n=680). Slightly less than one-third (30.4%, n=113) of female drug offenders received relief
from the mandatory minimum penalty by providing substantial assistance compared to 29.9
percent (n=1,218) of male drug offenders. See Figure 8-14.
5. Sentencing Outcomes
a.

Average sentence length

The average sentence for powder cocaine offenders who remained subject to the
mandatory minimum penalty (i.e., who did not receive some form of statutory relief) was 138
months, compared to 62 months for those offenders who obtained relief from the mandatory
minimum penalty.
The form of relief from a mandatory minimum penalty affected the average sentence
imposed. Powder cocaine offenders who qualified for the safety valve and who also provided
the government with substantial assistance had the lowest sentences, at 39 months on average.
The average sentence for powder cocaine offenders who did not qualify for safety valve relief
but who provided substantial assistance to the government was 86 months. Offenders who
received relief from the mandatory minimum penalty through application of the safety valve but
who did not also provide substantial assistance to the government received an average sentence
of 57 months.

180

The Commission examined average sentences imposed on the overall powder cocaine
population, by race, compared to average sentences imposed on powder cocaine offenders
convicted of an offense carrying a mandatory minimum penalty. Black powder cocaine
offenders received an average sentence of 95 months, which was higher than the average
sentence imposed on any other racial group of powder cocaine offenders. White powder cocaine
offenders received the shortest average sentences (59 months). Among powder cocaine
offenders convicted of an offense carrying a mandatory minimum penalty, Black offenders also
received the highest average sentence (113 months), compared to White offenders (70 months),
Hispanic Offenders (89 months) and Other Race offenders (78 months).
A similar pattern emerged when comparing average sentences by race for powder cocaine
offenders who remained subject to the mandatory minimum penalty at sentencing with those
who obtained relief from the mandatory minimum penalty. Black powder cocaine offenders who
remained subject to the mandatory minimum penalty had a higher average sentence (153
months) than any other racial group (White offenders (131 months), Hispanic offenders (131
months), and Other Race offenders (152 months)). Black offenders who obtained relief from the
mandatory minimum penalty at sentencing also received the highest sentence, on average (71
months), followed by Hispanic offenders (65 months), Other Race offenders (48 months), and
White offenders (46 months). See Figure 8-15.
FigurE' 8-15
Av('ragE' S('ut('UCE' LE'ugth by RacE' of Powdn Cocaill(, OffNldns
CouvictE'd of all Off('usE' Clu'I'ying II. Drug Maudatory Miuimum P('ualty
Fiscal YE'ar 2010
l\Ionth_,:,
160 .,.

,

J-I----------------120 J - I - - - - - - - - - - - - - - - 100 J-I------140

80
60
40
20

o
All Powder
Cocaine
5OUltCE,

Relie...<1 r ...,m
H\I

AJI ~L"

Subject to i\ThI

u.s. ~ C_ni-.,OIOil>t.Mo. USSCYY10

The higher average sentences for Black powder cocaine offenders in each category may,
in part, be attributable to criminal history category differences between Black offenders and
those in the other racial groups. For all powder cocaine offenders, powder cocaine offenders
convicted of an offense carrying a mandatory minimum penalty, powder cocaine offenders who
remained subject to the mandatory minimum penalty, and powder cocaine offenders who
181

obtained relief from the mandatory minimum, the proportion of offenders at each criminal
history category who were Black increased with the criminal history category in contrast to the
patterns seen among other races.652 For example, 40.9 percent (n=436) of offenders who were
subject to the mandatory minimum penalty at sentencing and are in Criminal History Category II
or above were Black offenders, which contrasts to 59.1 percent of offenders who were White,
Hispanic, and Other Race who were subject to the mandatory minimum penalty at sentencing
and are in Criminal History Category II or above.
The difference in average sentences among racial groups also may be attributable to the
fact that Black offenders tended to be convicted of statutes carrying longer mandatory minimum
penalties than the offenders in the other racial groups and because Black offenders were more
likely than offenders in the other racial groups to be ineligible for the safety valve.653
b.

Position relative to the guideline range

Table 8-6 compares the position of sentences relative to the guideline range among
powder cocaine offenders, powder cocaine offenders convicted of an offense carrying a
mandatory minimum penalty, powder cocaine offenders convicted of an offense carrying a
mandatory minimum penalty and relieved of application of the mandatory minimum penalty, and
then powder cocaine offenders who remained subject to the mandatory minimum at the time of
sentencing because they did not qualify for any form of statutory relief. There were only
minimal differences in the position of sentences relative to the guideline range among the first
two groups. Powder cocaine offenders who remained subject to the mandatory minimum penalty
at the time of sentencing were sentenced within the applicable guideline range in 71.8 percent
(n=1,233) of the cases and received non-government sponsored below range sentences in 22.5
percent (n=386) of the cases

652

See Figure D-5 (Race of All Powder Cocaine Offenders by Criminal History Category
(Fiscal Year 2010)); Figure D-6 (Race of Powder Cocaine Offenders Convicted of an Offense Carrying a
Drug Mandatory Minimum Penalty By Criminal History Category (Fiscal Year 2010)); Figure D-7 (Race of Powder
Cocaine Offenders Relieved from a Drug Mandatory Minimum Penalty At Sentencing by Criminal History
Category (Fiscal Year 2010)); and Figure D-8 (Race of Powder Cocaine Offenders Subject to a Drug Mandatory
Minimum Penalty At Sentencing by Criminal History Category (Fiscal Year 2010)) in Appendix D of this Report.
653

See Figure D-13 (Race of Powder Cocaine Offenders by Length of Drug Mandatory Minimum Penalty (Fiscal
Year 2010)) in Appendix D of this Report.

182

Table 8-6
Sentence Relative to the Guideline Range of Powder Cocaine Offenders
Fiscal Year 2010

All
Offenders
Total (# of offenders)

Convicted of a
Statute Carrying
a Mandatory
Minimum
Penalty

Relieved of
Application
of Mandatory
Minimum
Penalty

4,447

2,729

1,718

5,571

Subject to
Mandatory
Minimum
Penalty
at Sentencing

Sentence Relative to the Guideline Range (Percent)
Within Range

45.8

44.4

27.2

71.8

Above Range

0.6

0.6

0.3

0.9

Substantial Assistance '5K1.1

27.2

29.9

48.8

0.0

Other Government Sponsored
(no '5K1.1)

6.6

6.9

8.2

4.8

19.8

18.2

15.5

22.5

Other Below Range

Figures 8-16 and 8-17 show the impact on sentences from substantial assistance
departures and from other below range sentences. These figures display the average guideline
range minimum and the average sentence imposed for powder cocaine offenses for offenders
sentenced from fiscal year 1995 to 2010. As the figures demonstrate, although the average
sentences imposed were below the guideline range in each year, they remained at or above five
years.

183

Figurt' 8-16
Avt'l':l.gt' Guidt'lint' :\finimum flnd An'l'flgt' St'lltt'nct' fol' Offlmdt'rs Convict('d offln
Off('nst' Carrying II. Drug Mandfltory :\finimuIII P('nllity
SUbStlllltilll Assistlln{'('
Powd('r Cocaint' Off('ndt'l's
Fiscal Yt'llI'S 1992 - 2010
_Guideline :\liuimnm

:\Iomhs

220
240

+
~~~========================

180
160
140
120
100
80
80
40
20

o
~~~~~~~~~~-~-~~~~-~-~~~

...."1.

SOUKCE,

u.s....._

...."1.

....""

....""

....'"

...."1'

...."1.....""

",'Il

",'Il

~'r ~'r ",'Il

",'Il

",'Il

~'r ~'r ",'Il

",<I>

C _ ".... 11-91.......... 1010 Ih.. ~, USSCITl'l91_ USSCFY2010.

Figm't' 8-17
Avt'ragt' Guidt'lint' :\finimuIII flnd A Vt'l'flgt' St'utt'nct' fol' Off('ndHs Convict('d of fln
Off('nst' Carrying II Dl'ug :Mandfltory :\finimum P('nlllt)'
l"on-Substlllltilli AssistflllCt' B('low Rflllgt' S('lIt('nct'
Powd('1' Cocaint' Off('lIdt'l's
Fiscal Yt'JUS 1992 - 2010
240
220
200
180
160
140
120
100

:\Ioutbs

_Guid.liue :\Iiuimllln

"-

80
80
40
20

SOUKCE,

u.s. So=_C_,,,,,,, 1991 .......... 10tO D...

USSCYY2010

~, USSCYY1'19~_

In fiscal year 2010, the average extent of substantial assistance departures in powder
cocaine cases was 48.6 percent (66 months) from the bottom of the otherwise applicable
guideline range. In fiscal year 2010, the average extent of non-government sponsored below
184

range sentences (i.e., departures and variances combined) in powder cocaine cases that carried a
mandatory minimum penalty was 29.0 percent (31 months) from the minimum of the otherwise
applicable guideline range.
6.

Prison Impact

At the end of fiscal year 2010, 13.4 percent (n=25,767) of the 191,757 offenders in the
custody of the BOP were convicted of a powder cocaine offense. Powder cocaine offenders
were second only to crack cocaine offenders (n=32,694). This was not always the case. From
1995 through 1998, powder cocaine offenders constituted the largest group of drug offenders in
BOP custody. In 1998, the number of crack cocaine offenders surpassed powder cocaine
offenders, a trend which continued through 2010.
At the end of fiscal year 2010, 89.9 percent (n=23,157) of the 25,767 powder cocaine
offenders in BOP custody were convicted of an offense carrying a mandatory minimum penalty.
In 1995, the proportion of powder cocaine offenders convicted of an offense carrying a
mandatory minimum penalty was 84.7 percent (n=12,243). The percentage then increased
steadily to the current high of 89.9 percent in 2010.654
In contrast, the rate at which powder cocaine offenders in the BOP were subject to a
mandatory minimum penalty at sentencing has fluctuated somewhat over the years. At the end
of fiscal year 2010, approximately half (50.2%, n=12,929) of the powder cocaine offenders in
BOP custody were subject to a mandatory minimum penalty at sentencing. This rate has varied
from a high of 59.3 percent (n=8,570) in 1995 to a low of 48.9 percent (n=12,304) in 2008.
7.

Offender Function

For powder cocaine offenders, the most common functions for offenders were High Level
Supplier/Importer (24.1%), Courier (21.1%) and Wholesaler (20.7%). The least common
functions were Grower/Manufacturer (0.0%), Manager (2.0%) and Supervisor (2.1%).655
In powder cocaine offenses, 29.2 percent of Street-Level Dealer offenders were convicted
of an offense carrying a mandatory minimum penalty. In contrast, almost all (96.1%) of HighLevel Supplier/Importer offenders were convicted of an offense carrying a mandatory minimum
penalty. Wholesaler offenders were convicted of an offense carrying a mandatory minimum
penalty at a rate of 55.7 percent, but offenders performing functions lower than Wholesaler, such
as Manager, Supervisor, Broker and Courier, all were convicted of statutes carrying mandatory
minimum penalties at rates above 85 percent. See Figure 8-18.

654

See Figure D-14 (Percentage of Offenders in Prison Not Convicted of an Offense Carrying a Mandatory
Minimum, Convicted of an Offense Carrying a Drug Mandatory Minimum Penalty and Subject to a Mandatory
Minimum Penalty at Sentencing - Powder Cocaine Offenders (1995-2010)) in Appendix D of this Report.

655

See Figure D-15 (Distribution of Offender Function by Primary Drug Type - Powder Cocaine Offenders (Fiscal
Year 2009 Sample Data)) in Appendix D of this Report.

185

Figm'(' 8-18
P('I'c('ut of Off('nd('l's Convict('d of llll Off('lls(' ClllTying a Malldatory l\liuimum P('ualty and
Subj('l:t to a Mlludatol'Y Minimum PNlalty
By Off('ud('r FUllctioll aud Pl'illllll'y Dl'ug TYl)('
Powd('r Cocllin(' Off('ud('l's
Fiscal Y('al' 2009 Sampl(' Data
•

100,0 P~rn·DI

•

Com·iCl~d

SDbj~11 Afl~l· R~lier

80.0
60.0
olI!'.8-----

-10.0

olI6. ---------------

!'.3
7.

26

20.0
0.0

,.

~$'q

,";

0.0

.,'

,J'

0'-

.•

,}

.~

6"

",
,<
"
.$"<$•

.-" ".' ".' "v ",
,~

~"''''~

~"

As was the case with the overall drug population, offenders who performed high-level
functions generally obtained relief for substantial assistance at higher rates than offenders who
performed low-level functions. Conversely, offenders who performed low-level functions were
more likely to have obtained relief pursuant to the statutory safety valve than offenders who
performed high-level functions. See Figure 8-19.

186

Figurt> 8-19
Pt'I'C('llt of Offt>lldt'l's Couvictt>d of llU Offt>ust> Clll'l'yilig fI Drug MllndllTory Minimum Pt>llalt)'
\Vllo "'t'I'(' Rt>!it>\'{'d of tilt> P(,Il11lty By Off(,lldt'l' FUlictioli
Powdt'l' Cocflillt> Offt>lldt'l's
FiSClll Y('ar 1009 SamlJIt> Dlltll
_:"10

100.0 P~U~1l1

R~li.f

I
80.0

0.0
32.6

60.0

28.6

--------43.8----

40.0

20.0

0.0

.,
<-v

,~

~,

8.

•." ' ,.•.'•

o'~

....V!

""

~~~

,,'
.::.">•

. ,.- .' ,v ,.'

,,.' '"

,~"

~.,

.'

".

~,

~,,,,~
~,.

.

,,"

Summary

With respect to mandatory minimum penalties for powder cocaine offenders,
Commission analyses demonstrate the following:
Offenses and Offenders
•

Powder cocaine offenses accounted for almost one-quarter (23.3%, n=5,571) of all drug
offenses in fiscal year 2010. The majority of powder cocaine offenders (79.8%, n=4,447)
were convicted of an offense carrying a mandatory minimum penalty.

•

More than half of all powder cocaine offenders are Hispanic (54.9%). Approximately
one quarter (26.7%) are Black, followed by White (16.7%) and Other Race (1.6%)
offenders.

•

The overwhelming majority of powder cocaine offenders (90.6%) are male.

•

United States citizens accounted for 62.4 percent (n=3,475) of powder cocaine offenders.

•

Thirteen of the 94 judicial districts reported 100 or more powder cocaine offenders
convicted of an offense carrying a mandatory minimum penalty in fiscal year 2010.

187

•

The most common functions for powder cocaine offenders were High Level
Supplier/Importer (24.1%), Courier (21.1%), and Wholesaler (20.7%).

Application and Relief
•

Of the 4,447 offenders convicted of a powder cocaine offense carrying a mandatory
minimum penalty in fiscal year 2010, 95.1 percent (n=4,229) pled guilty and 4.9 percent
(n=218) proceeded to trial. By comparison, 98.2 percent (n=1,090) of powder cocaine
offenders convicted of an offense not carrying a mandatory minimum penalty in fiscal
year 2010 pled guilty while 1.8 percent (n=20) of those offenders proceeded to trial.

•

In fiscal year 2010, almost two-thirds (61.4%, n=2,729) of powder cocaine offenders
convicted of an offense carrying a mandatory minimum penalty received relief from the
mandatory minimum penalty.
o

o

White offenders qualified for some form of relief from a mandatory minimum
penalty most often, in 71.9 percent of their offenses carrying such a penalty,
followed by Other Race (71.6%) and Hispanic (63.5%) offenders. Black
offenders qualified for relief from mandatory minimum penalties least often, in
48.9 percent of the cases in which they were convicted of an offense carrying
such a penalty.


Black offenders received substantial assistance relief alone from a
mandatory minimum penalty most often, in 28.2 percent of their offenses
carrying such a penalty, followed by Other Race (19.4%) and White
(18.6%) offenders. Hispanic offenders received relief from mandatory
minimum penalties through substantial assistance the least often, in 14.3
percent of their cases.



White offenders received safety valve relief alone most often, in 37.5
percent of their cases, followed by Hispanic (37.3%) and Other Race
(29.8%) offenders. Black offenders received relief from mandatory
minimum penalties through the safety valve the least often, in 13.7 percent
of their cases.



Other Race offenders received relief from a mandatory minimum penalty
through a combination of substantial assistance and safety valve relief
most often, in 22.4 percent of their cases, followed by White (15.8%),
Hispanic (11.9%) and Black (7.1%) offenders

Female powder cocaine offenders received relief from the mandatory minimum
penalty at a higher rate (82.7%) than male powder cocaine offenders (59.4%).


Male offenders received substantial assistance relief alone from a
mandatory minimum penalty more often, in 19.3 percent of their cases,
compared to female offenders (9.4%).
188

o

•



Female offenders received safety valve relief alone more often, in 52.3
percent of their cases, compared to male offenders (29.5%).



Female offenders also received relief from a mandatory minimum penalty
through a combination of substantial assistance and safety valve relief
more often in 21.0 percent of their cases, compared to 10.6 percent of
cases involving male offenders.

Non-citizen powder cocaine offenders received relief from the mandatory
minimum penalty at a higher rate (70.2%) than United States citizen powder
cocaine offenders (55.0%).


United States citizen powder cocaine offenders received substantial
assistance relief alone from a mandatory minimum penalty more often in
24.0 percent of their cases, compared to non-citizen offenders (10.7%).



Non-citizen offenders received safety valve relief alone more often, in
47.5 percent of their cases, compared to United States citizens (20.0%).



Non-citizen offenders also received relief from a mandatory minimum
penalty through a combination of substantial assistance and safety valve
relief more often, in 12.0 percent of their cases, compared to 11.0 percent
of cases involving United States citizens.

Less than half (44.4%) of all powder cocaine offenders convicted of an offense carrying a
mandatory minimum penalty were sentenced within the applicable guideline range.
o

More than one-third (36.8%) of powder cocaine offenders convicted of an offense
carrying a mandatory minimum penalty received a government sponsored below
range sentence.

o

Powder cocaine offenders convicted of an offense carrying a mandatory minimum
penalty received a non-government sponsored below range sentence in 18.2
percent of the cases.

•

In fiscal year 2010, the average extent of substantial assistance departures in powder
cocaine cases was 48.6 percent (66 months) from the bottom of the otherwise applicable
guideline range.

•

In fiscal year 2010, the average extent of non-government sponsored below range
sentences in powder cocaine cases that carried a mandatory minimum penalty was 29.0
percent (31 months) from the bottom of the otherwise applicable guideline range.

189

Sentencing
•

In fiscal year 2010, 38.6 percent of powder cocaine offenders convicted of an offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing.

•

In fiscal year 2010, the rate at which powder cocaine offenders convicted of an offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing varied by race, gender and citizenship.
o

Black offenders were subject to the mandatory minimum penalty at sentencing
most often, in 51.1 percent of their offenses carrying such a penalty, followed by
Hispanic (36.5%) and Other Race (28.4%) offenders. White offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 28.1
percent of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (40.6% of their cases, compared to 17.2% of
cases involving female offenders).

o

United States citizens were subject to the mandatory minimum penalty at
sentencing more often than non-citizens offenders (45.0% of their cases,
compared to 29.8% of cases involving non-citizen offenders).

•

The average sentence for powder cocaine offenders who were subject to the mandatory
minimum penalty (i.e., who did not receive some form of statutory relief) was 138
months. The average sentence for those offenders who obtained relief from the
mandatory minimum penalty was 62 months.

•

Black powder cocaine offenders who remained subject to the mandatory minimum
penalty had a higher average sentence (153 months) than any other racial group (White
offenders (131 months), Hispanic offenders (131 months), and Other Race offenders (152
months)).

•

The higher average sentence for Black powder cocaine offenders is attributable, in part,
to criminal history category differences between Black offenders and those in the other
racial groups.
o

The proportion of offenders at each criminal history category who were Black
increased with the criminal history category in contrast to the patterns seen among
other races.

o

More than three-quarters of Black powder cocaine offenders (78.6%, n=436) who
remained subject to a mandatory minimum penalty had at least two criminal
history points under the sentencing guidelines, which disqualified them for
application of the safety valve

190

o

Black offenders tend to be convicted of statutes carrying longer mandatory
minimum penalties than the offenders in the other racial groups.

Prison Impact
•

E.

At the end of fiscal year 2010, 13.4 percent of the offenders in the custody of the Bureau
of Prisons were convicted of a powder cocaine offense.
CRACK COCAINE OFFENSES

Crack cocaine offenses accounted for approximately one-fifth of all drug offenses in fiscal
year 2010. That year, 4,751 of the 23,964 drug offenders (19.8%) were convicted of an offense
involving crack cocaine.656 The overwhelming majority of those crack cocaine offenders
(82.2%, n=3,905) were convicted of an offense carrying a mandatory minimum penalty. Crack
cocaine and methamphetamine cases (83.2%) had the highest rates of offenders convicted of an
offense carrying a mandatory minimum penalty.657
1.

Demographic Characteristics of Crack Cocaine Offenders

Table 8-7 presents information on the demographic characteristics of crack cocaine
offenders. The overwhelming majority of crack cocaine offenders convicted of an offense
carrying a mandatory minimum were male (92.7%, n=3,620)658 and were United States citizens
(97.2%, n=3,796).659 More than three-quarters (78.6%, n=3,728) of all crack cocaine offenders
were Black. Black offenders constituted a similar proportion (78.5%, n=3,059) of those crack
cocaine offenders convicted of an offense carrying a mandatory minimum penalty. The
proportion of Black crack cocaine offenders subject to a mandatory minimum penalty at the time
of sentencing (78.7%, n=1,961) was comparable to their proportion in the overall crack cocaine
offender population and the population of crack cocaine offenders convicted of an offense
carrying a mandatory minimum penalty.

656

Fiscal year 2010 started on October 1, 2009, and ended September 30, 2010. The majority of the crack offenders
sentenced in fiscal year 2010 were sentenced prior to August 3, 2010, the date of enactment of the Fair Sentencing
Act of 2010. Some degree of caution should be exercised in drawing conclusions from the crack cocaine data
analyzed in this report because it is not yet clear how the Fair Sentencing Act of 2010 will impact sentences for
crack cocaine offenses.

657

See Table D-7 (Mandatory Minimum Status and Average Sentence by Drug Type for Drug Offenders (Fiscal
Year 2010)) in Appendix D of this Report.

658

See Table D-10 (Gender of Offenders and Average Sentence by Drug Type for Offenders Sentenced under
Mandatory Minimum (Fiscal Year 2010)) in Appendix D of this Report.

659

See Table D-12 (Citizenship of Offender and Average Sentence by Drug Type for Offenders Sentenced under
Mandatory Minimum (Fiscal Year 2010)) in Appendix D of this Report.

191

Table 8-7
Demographic Characteristics of Crack Cocaine Offenders
Fiscal Year 2010

Convicted of a Statute
Carrying a Mandatory
Minimum Penalty

All
Offenders
Total (# of offenders)

4,751

Relieved of
Application of
Mandatory
Minimum
Penalty

3,905

Subject to
Mandatory
Minimum Penalty
at Sentencing

1,407

2,498

Race of Offender (Percent)
White

7.3

6.4

10.0

4.4

Black

78.6

78.5

78.1

78.7

Hispanic

13.0

14.1

10.2

16.3

1.1

1.0

1.7

0.6

Other

Citizenship of Offender (Percent)
United States Citizen
Non-U.S. Citizen

97.3

97.2

96.5

97.6

2.7

2.8

3.5

2.4

Gender of Offender (Percent)
Male
Female

91.5

92.7

87.6

95.6

8.5

7.3

12.4

4.4

Table 8-8 displays information about offense characteristics and criminal history category
for all crack cocaine offenders, for those crack cocaine offenders convicted of an offense
carrying a mandatory minimum penalty, crack cocaine offenders convicted of an offense
carrying a mandatory minimum penalty and relieved of application of the mandatory minimum
penalty, and for those offenders who remained subject to the mandatory minimum because they
did not obtain either safety valve or substantial assistance relief.

192

Table 8-8
Guideline Sentencing Characteristics, Role in the Offense, and
Criminal History of Crack Cocaine Offenders
Fiscal Year 2010

Total (# of offenders)

All
Offenders

Convicted of a
Statute
Carrying a
Mandatory
Minimum
Penalty

Relieved of
Application
of Mandatory
Minimum
Penalty

4,751

3,905

1,407

2,498

Subject to
Mandatory
Minimum
Penalty
at Sentencing

Characteristics (Percent)
Weapon Specific Offense Characteristic

18.6

18.8

13.7

21.8

Firearms Mandatory Minimum Applied

9.1

11.0

8.6

12.4

11.3

11.6

32.3

0.0

Safety Valve Reduction

Role in the Offense (Percent)
Aggravating Role

5.6

6.2

5.9

6.4

Mitigating Role

4.0

3.5

7.0

1.5

Criminal History Category (Percent)
I

22.2

22.8

37.3

14.6

II

11.7

11.4

9.2

12.6

III

18.2

18.0

14.8

19.8

IV

11.7

12.0

8.8

13.8

V

8.0

7.9

6.3

8.9

VI

28.3

27.8

23.6

30.2

2.

Guilty Pleas and Trials

Crack cocaine offenders convicted of an offense carrying a mandatory minimum penalty
went to trial at about the same rate as other drug offenders convicted of an offense carrying such
a penalty. In fiscal year 2010, 94.6 percent (n=3,695) of crack cocaine offenders convicted of an
offense carrying a mandatory minimum penalty pled guilty while 5.4 percent (n=210) proceeded
to trial. By comparison, 98.2 percent (n=823) of crack cocaine offenders convicted of a drug
offense not carrying a mandatory minimum penalty in fiscal year 2010 pled guilty.

193

3.

Geographic Variations

The 94 judicial districts varied significantly in the number of crack cocaine cases reported
to the Commission in fiscal year 2010. As a result, the number of crack cocaine offenders in
each district convicted of an offense carrying a mandatory minimum penalty also varied.
Six districts reported 100 or more crack cocaine offenders convicted of an offense
carrying a mandatory minimum penalty in fiscal year 2010: Puerto Rico (n=269, 34.5% of the
total caseload in the district), South Carolina (n=220, 18.1%), Eastern North Carolina (n=138,
19.8%), Eastern Virginia (n=135, 10.9%), Middle Florida (n=114, 6.9%), and Eastern Tennessee
(n=108, 13.2%). See Figure 8-20. This finding was consistent with historical trends noted by
the Commission.660 Six districts reported no cases involving crack cocaine.661 As a percentage
of the overall caseload, crack cocaine cases involving offenders convicted of an offense carrying
a mandatory minimum were most common in Puerto Rico, where 34.5 percent of the criminal
caseload (n=269) involved crack cocaine cases, as well as Central Illinois (25.0%, n=92) and
Western Pennsylvania (20.4%, n=89).
Figm'(' 8-20
Numb('!' of Crack Conlin(' Off('ndns COllvict('d of all Off('!Is(' Carrying a
Dl'Ug Mandatory Minimum Pt'llaity
By District
Fiscal Yt'a!' 1010

""I)
1::::1 ( so
5OUKCE,

u.s_~c:........,,,,,,,,'OIOD>t.~,USSCYYIO

660

For example, four of these six districts (Eastern Virginia, Eastern North Carolina, South Carolina, and Middle
Florida) are in the top five districts for the largest number of offenders granted retroactive application of the
amendments made to the guidelines pursuant to the Fair Sentencing Act. See U.S. Sentencing Commission
Preliminary Crack Cocaine Retroactivity Data Report (June, 2011) at 4, available at
http://www.ussc.gov/Data_and_Statistics/Federal_Sentencing_Statistics/Crack_Cocaine_Amendment/20110216_US
SC_Crack_Cocaine_Retroactivity_Data_Report.pdf.
661

These districts were the Virgin Islands, Guam, Hawaii, Idaho, Montana, and the Northern Mariana Islands.

194

4.

Relief from the Mandatory Minimum Penalty

Crack cocaine offenders were subject to the mandatory minimum penalty at the time of
sentencing at a higher rate (64.0%) than drug offenders overall (45.6%). Compare Figure 8-21
with Figure 8-4. The principal reason for this difference is that crack cocaine offenders receive
relief from mandatory minimum penalty provisions pursuant to the safety valve less often than
other drug offenders. Only 11.7 percent (n=455) of crack cocaine offenders convicted of an
offense carrying a mandatory minimum penalty obtained relief through the operation of the
safety valve, as compared to 35.1 percent (n=5,557) of drug offenders overall.
Figm'(' 8-21
P('rc('nt of Crack Cocain(' OffNld('l's Conyift('d of an Off('ns(' Carrying a
Drug Mandatory Minimum P('nalty 'Vho "'('1'(' R('li('\'('d of til(' P('nalty
Fiscal Y('ar 1010
.:"\0 Ri'lid

Substantial

'-\'ssistanc~

•

Saf~t)·

'iliH

• Sub .-\,»' & SY

80.0

60.0
40.0
20.0
0.0
.\0
5OUKCE,

Whi'~

Black Hi>pank

Oth~l'

u.S.
Citizen

i\"onCitiz~n

U.s_~e-"",,'OIOIht.lSIo,USSCYY10

This difference is primarily due to the fact that crack cocaine offenders are often ineligible
for this relief. Only 22.8 percent (n=889) of crack cocaine offenders convicted of an offense
carrying a mandatory minimum penalty have a criminal history of no more than one point, which
is one of the requirements for application of the safety valve provision. See Table 8-8. Crack
cocaine offenders are the only group of drug offenders for whom Criminal History Category I
(zero to one criminal history point) is not the most common criminal history category. Crack
cocaine offenders have the highest criminal history scores, on average, of any group of drug
offenders. More than one-quarter (27.8%, n=1,087) of crack cocaine offenders are in Criminal
History Category VI, the highest proportion of any drug type.662 Additionally, some crack
cocaine offenders who are not disqualified from the safety valve based on their criminal history
were ineligible as a result of the involvement of a dangerous weapon in the offense. See
Table 8-8.
662

For more complete information concerning the application of safety valve by drug type, see Table D-8
(Application of Safety Valve and Average Sentence by Drug Type for Offenders Sentenced under Mandatory
Minimum (Fiscal Year 2010)) in Appendix D of this Report.

195

Approximately one-quarter (24.4%, n=952) of crack cocaine offenders received relief
from a mandatory minimum penalty by providing substantial assistance to the government. This
compares to 28.3 percent of drug offenders overall. A small percentage (3.5%, n=136) of crack
cocaine offenders received relief from the mandatory minimum penalty by qualifying for both
safety valve and substantial assistance. See Figure 8-21.
5.

Sentencing Outcomes
a.

Average sentence length

The average sentence for crack cocaine offenders who remained subject to a mandatory
minimum penalty at the time of sentencing (i.e., who did not receive any form of statutory relief)
was 139 months, compared to 80 months for crack cocaine offenders who obtained relief from
the mandatory minimum penalty.
As was the case with the overall drug mandatory minimum population, the different
forms of relief received by crack cocaine offenders impacted the applicable average sentence.
Crack cocaine offenders who qualified for the safety valve and also provided the government
with substantial assistance had the lowest average sentence at 25 months. The average sentence
for crack cocaine offenders who did not qualify for safety valve relief, but provided substantial
assistance to the government was 101 months. This average sentence was slightly higher than
the average sentence of 90 months for all drug offenders who provided substantial assistance.
The average sentence imposed on crack cocaine offenders who only received relief from
a mandatory minimum penalty through application of the safety valve provision was 42 months.
This average sentence was the second lowest average sentence for all drug offenders who
received safety valve relief (marijuana offenders was the lowest, at 32 months).663
The Commission examined average sentences imposed on the overall crack cocaine
population, by race, compared to average sentences imposed on crack cocaine offenders
convicted of an offense of carrying a mandatory minimum penalty. Black crack cocaine
offenders received an average sentence of 115 months, which was higher than the average
sentence imposed on any other racial group in the overall crack cocaine population. See Figure
8-22. White crack cocaine offenders received the lowest average sentences (68 months). See
Figure 8-22. Black offenders convicted of an offense carrying a mandatory minimum penalty
also received the highest average sentence (126 months), compared to White offenders (82
months), Hispanic Offenders (91 months), and Other Race offenders (120 months).

663

This is likely attributable to the Commission’s 2007 crack cocaine amendment, which lowered the base offense
levels for crack cocaine offenses by two levels. Accordingly, crack cocaine offenders with a drug quantity
triggering the five-year mandatory minimum penalty had a base offense level 24. By contrast, all other drug
offenders with a drug quantity triggering the five-year mandatory minimum penalty had a base offense level 26.

196

FigurE' 8-22
Av('rag(' S('ntE'ncE' LE'llgth b)' Rac(' of Crack Cocain(' O(fE'lldHS
ConvictE'd of an Off('nsE' Cal'l'ying a Drug Mandator)' Minimum P('nalty
Fiscal ¥E'ar 2010
:\!ou'h,
160-~-----------------140

j.i-----------------

120

j.i----c----

100
80

60
40

20

o
All Crack

R~li~nd From

AJI :\L\I

Coc~in~

WUltCE,

Suhj....' to :\L\!

i\L\1

u.s. ~ e.-..;,..... ,OIOil>t.Mo, USSCYYIO

A slightly different pattern emerged when comparing average sentences by race for crack
cocaine offenders who remained subject to the mandatory minimum penalty with those who
obtained relief from the mandatory minimum penalty. Black offenders still had a higher average
sentence than either White or Hispanic offenders, but Other Race offenders received the highest
sentences, on average, in both of these categories. See Figure 8-22. However, given the
relatively small number of Other Race crack cocaine offenders convicted of an offense carrying a
mandatory minimum penalty (n=38), no meaningful conclusions may be drawn from these
average sentences because they are likely driven by a small number of offenders with more
serious criminal history categories.664
The higher average sentences for Black crack cocaine offenders in each category may, in
part, be attributable to criminal history category differences between Black offenders and those
in the other racial groups. Figures 8-23 through 8-26 present a comparison, by race, of criminal
history categories for all crack cocaine offenders, crack cocaine offenders convicted of an
offense carrying a mandatory minimum penalty, crack cocaine offenders convicted of an offense
carrying a mandatory minimum penalty and relieved of application of the mandatory minimum
penalty, and crack cocaine offenders who remained subject to the mandatory minimum penalty.
For each of these groups, the proportion of offenders at each criminal history category who were
664

This conclusion is borne out by the data presented in Figures 8-24 and 8-26. The highest proportion of Other
Race offenders for crack offenders subject to or relieved from the mandatory minimum penalty were in Criminal
History Category VI. See Figures 8-24 (Race of Crack Cocaine Offenders Convicted of an Offense Carrying a Drug
Mandatory Minimum Penalty by Criminal History Category (Fiscal Year 2010)) and 8-26 (Race of Crack Cocaine
Offenders Subject to a Drug Mandatory Minimum Penalty at Sentencing by Criminal History Category (Fiscal Year
2010)).

197

Black increased with the criminal history category. For each of these groups, the proportion of
Black offenders in Category Criminal History III and higher was greater than the proportion of
Black offenders for that population. See Figures 8-23 through 8-26. For example, Black
offenders constituted 78.5 percent (n=3,059) of the population of crack cocaine offenders
convicted of an offense carrying a mandatory minimum penalty. In contrast, at Criminal History
Category III, Black offenders constituted 81.3 percent (n=571) of the crack cocaine offenders
convicted of an offense carrying a mandatory minimum penalty in that criminal history category.
The proportion of Black offenders at each higher criminal history continued to increase:
Criminal History Category IV (84.3%, n=396), Criminal History Category V (86.4%, n=267),
and Criminal History Category VI (89.6%, n=971).
Figun.' 8-23
Rac(' of Crack Cocaill(, Off('lld('rs by Criminal History Cllt('gory
Fiscal ¥('ar 2010
Perrenl

100.0,r-------------------------,

80.0 ~-------

60.0

40.0

20.0

0.0
II

SOUltCE,

III

u.s. s - q e..a...;,..:-, ,OIOil>t.fiIo. USSCYYIO

198

IV

v

VI

Figun' 8-24
Rac{' of Crack Cocaiu{' OffNldHS Coul'ict{'d of an Off{'us{' CalTyiug a
Dl'ug Mandatol'y Minimum PNlalty
By Crimiual Ristol'y Cat{'gol'y
Fiscal YNtr 2010
Percent

100.0 : ; ; ' - - - - - - - - - - - - - - - - - - - - - - - ,

80.0

jf-------

60.0

40.0

20.0

0.0
Criminal Hi,tm'}" Calel:0"Y
5OUltCE,

u.s. ~ e.-..;,..... ,OIOil>t.Mo. USSCYY10

Figm'{' 8-25
Rac{' ofCl'ack Cocll.iu{' Off{'udHS R{'!i{,l'{'d from a
Dl'ug Mandatol'y Minimum PNlalt)' at S{'utNlcing
by Criminal Ristol'y Cat{'gol'y
Fiscal Y{'ll.r 2010
Percent,

r

100.0 -<'

80.0

.:..:"c'he;c"'--c.:.eBOI,O,Ok_~."Hio·e.'<'""";''___=.oO"'eh'"'

.)1--------

60.0

40.0

20.0

0.0

199

,

Figun.' 8-26
Rlll:l' of Crack COCailll' Offl'lld.. . rs Subjl'ct to a
Dl'lig Mandatol'y l\Hnimlim P('Ilalt)' at Sl'lltl'llcing
By Crimina.! Histol'y Catl'gory
Fiscal Yl'ar 2010
P~

...,~nt

100.0 ~---------------------,

80.0

JI-------

60.0 i j - - - -

40.0
20.0

0.0
II

WUltCE,

III

IV

V

u.s. s--. ~ lOIOil>t.fiIo, USSCYY10

b.

Position relative to the guideline range

Table 8-9 compares the position of sentences relative to the guideline range among crack
cocaine offenders, crack cocaine offenders convicted of an offense carrying a mandatory
minimum penalty, crack cocaine offenders convicted of an offense carrying a mandatory
minimum penalty and relieved of application of the mandatory minimum penalty, and crack
cocaine offenders who remained subject to the mandatory minimum penalty at the time of
sentencing because they did not qualify for any form of statutory relief. Slightly less than half
(42.1%, n=1,644) of all crack cocaine offenders convicted of an offense carrying a mandatory
minimum penalty were sentenced within the applicable guideline range. Approximately onethird (32.9%, n=1,285) of crack cocaine offenders convicted of an offense carrying a mandatory
minimum penalty received government sponsored below range sentences. Crack cocaine
offenders convicted of an offense carrying a mandatory minimum penalty received a nongovernment sponsored below range sentence in 23.9 percent (n=935) of the cases. This is the
highest rate of such sentences reported for any drug type.665 Only 1.0 percent (n=41) of crack
cocaine offenders convicted of an offense carrying a mandatory minimum penalty were
665

This result may in part be attributable to the Supreme Court’s holding in Kimbrough v. United States, 552 U.S.
85 (2007), that that a sentencing court may vary from the guidelines’ treatment of crack cocaine on policy grounds.
This finding as it relates to crack offenses is consistent with opinions expressed by the district court judges in the
survey conducted by the Commission in 2010, in which 76% of judges surveyed expressed the view that crack
cocaine mandatory minimum sentences were too high. See Commission, 2010 Judges’ Survey. The survey predated
the enactment of the Fair Sentencing Act of 2010, so the views expressed in that survey related to the crack cocaine
mandatory minimum penalties that existed before its enactment.

200

sentenced above the applicable guideline range, although this was also the highest rate of aboverange sentences reported for any drug type.
Crack cocaine offenders who remained subject to the mandatory minimum penalty at the
time of sentencing received a non-government sponsored below range sentence in 30.3 percent
(n=758) of the cases. This is the highest rate of such sentences reported for any drug type.
Crack cocaine offenders who remained subject to the mandatory minimum penalty at the time of
sentencing were sentenced above the applicable guideline range in 1.5 percent (n=37) of the
cases, a rate second only to marijuana offenses.
Table 8-9
Sentence Relative to the Guideline Range of Crack Cocaine Offenders
Fiscal Year 2010

All
Offenders
Total (# of offenders)

Convicted of
a Statute
Carrying a
Mandatory
Minimum
Penalty

4,751

Relieved of
Application of
Mandatory
Minimum
Penalty

3,905

Subject to
Mandatory
Minimum Penalty
at Sentencing

1,407

2,498

Sentence Relative to the Guideline Range (Percent)
Within Range

41.0

42.1

8.9

60.8

Above Range

1.0

1.0

0.3

1.5

Substantial Assistance '5K1.1

25.3

27.9

77.3

0.0

Other Government Sponsored
(no '5K1.1)

5.8

5.0

0.9

7.4

26.8

23.9

12.6

30.3

Other Below Range

Figures 8-27 and 8-28 show the impact on sentences from substantial assistance
departures and from other below range sentences. These figures display the average guideline
range minimum and the average sentence imposed for crack cocaine offenses for offenders
sentenced from fiscal year 1992 to 2010. As the figures demonstrate, although the average
sentences imposed were below the guideline range in each year, they remained above five years.

201

Figul't> 8-27
AVt>l'agt> Guidt>lint> Minimum and AVt>l'agt> St>ntt>nct> for Offt>ndt>l's Convictt>d of an
Offt>nst> Cal'l'ying a Drug Mandatory Minimum Pt>nalty
Substantial Assistanc,t>
Crack Cocaint> Offt>ndt>l's
Fiscal Yt>al's 1992 - 2010

240
220
200
180
160
140

-Gnideline Minimnm

Months

.......

~Sentence

~

......

~

120

100
80
60
40
20

-

.-.---.-

--..

-

~

~

~

--

---

-

o

SOURCE: US S<DIencmg Commission 1992 thl"Ough 2010 D.tafil., USSCFYI992- USSCFY2010.

Figul't> 8-28
AVt>l'agt> Guidt>lint> Minimum and Avt>ragt> St>ntt>nct> for Offt>ndt>l's Convictt>d of an
Offt>nst> Cal'l'ying a Drug Mandatory Minimum Pt>nalty
Non-Substantial Assistanct> Bt>low Rangt> St>ntt>nct>
CI'ac,k Cocaint> Offt>ndHs
Fiscal Yt>lHS 1992 - 2010
240

-Guideline Minimum

l\'Ionths

~Sentence

220

......

200
180
160
140
120

100
80
60
40
20

..........

..--r

......
•

/-s.....

-

~

.......

--

.AI.

"--.

------...... ..

............

.......

...
.....

o

SOURCE:

u.s. S<DI.ncmg Commission 1992 through 2010 D.tafil., USSCFYl992 - USSCFY2010.

In fiscal year 2010, the average extent of substantial assistance departures in crack
cocaine cases was 49.7 percent (87 months) from the bottom of the otherwise applicable
guideline range. In fiscal year 2010, the average extent of non-government sponsored below

202

range sentences (i.e., departures and variances combined) in crack cocaine cases was 30.3
percent (45 months) from the bottom of the otherwise applicable guideline range.
6.

Prison Impact

At the end of fiscal year 2010, 32,694 of the 191,757 offenders (17.0%) in the custody of
the BOP were crack cocaine offenders. At the end of 1995, there were 9,970 crack cocaine
offenders in BOP custody. By 1998, this number increased to 17,687, which was more than the
number of powder cocaine offenders (n=17,324).
The percentage of crack cocaine offenders convicted of an offense carrying a mandatory
minimum penalty has also increased slightly from 85.6 percent (n=8,532) in 1995 to a high of
89.9 percent (n=29,379) in 2010. Likewise, the percentage of crack cocaine offenders in BOP
custody subject to the mandatory minimum penalty at sentencing has also increased slightly from
60.1% (n=5,994) to 65.2% (n=21,305) in fiscal year 2010.666
7.

Offender Function

For crack cocaine offenders, the most common functions for offenders were Street-Level
Dealer (47.0%) and Wholesaler (27.9%). The least common functions were Mule (0.2%),
Supervisor (0.5%), High Level Supplier/Importer (0.5%), and Manager (0.7%).667
Over three-quarters (77.8%) of Street-Level Dealer offenders were convicted of an
offense carrying a mandatory minimum penalty. Wholesaler offenders were convicted of an
offense carrying a mandatory minimum penalty at a rate of 93.5 percent in crack cocaine cases.
High-Level Supplier/Importer, Organizer/Leader, Manager, Supervisor, and Mule offenders were
convicted of statutes carrying a mandatory minimum penalty in all cases. See Figure 8-29.

666

See Figure D-21 (Percentage of Offenders in Prison Not Convicted of an Offense Carrying a Mandatory
Minimum, Convicted of an Offense Carrying a Mandatory Minimum Penalty and Subject to a Mandatory Minimum
Penalty at Sentencing - Crack Cocaine Offenders (1995–2010)) in Appendix D of this Report.

667

See Figure D-22 (Distribution of Offender Function by Primary Drug Type - Crack Cocaine Offenders (Fiscal
Year 2009 Sample Data)) in Appendix D of this Report.

203

Figm'{' 8-29
PHC{'ut of Off('nd{'l's COll\'kt{'d of II Drug Mllndator)' l\1:inimum P{'nalty and
Subj{'ft to II Mandator)' :\1:iuimum P{,llalt)' Aft{'1' R{'lid
B)' Off('ud{'1' Function and Primllr)' Drug Tn}{'
Crack Cocahl{, Offol'nd{'l's
Fiscal Y{,lll' 2009 Samplt' Data
PH~~DI
.Coll\·i~t~d
• Sllbj~~1 Aft~I' R~li~f
100.0 ,'";;:;:""--~~-----"':::::-"'~.,:c=c:;.~===--------~~,

80.0
'!'i.O

60.0

40.0

66 ~----60.3
48.2

.,
30.8

20.0

23.8--

In addition to analyzing the rate of conviction of a statute carrying a mandatory minimum
penalty, the Commission also analyzed the rate at which crack cocaine offenders obtained relief
from a mandatory minimum penalty by function. Figure 8-29 also shows the results of that
analysis. For crack cocaine offenders with the most common functions, more than half were
subject to the mandatory minimum penalty at sentencing (Street-Level Dealer (56.1%) and
Wholesaler (60.3%)). Mules and Couriers were subject to the mandatory minimum penalty at
sentencing at the lowest rates (0.0% and 23.8%, respectively).
Offenders who performed high-level functions generally obtained relief for substantial
assistance at higher rates than offenders who performed low-level functions. Conversely,
offenders who performed low-level functions were more likely to have obtained relief pursuant
to the statutory safety valve than offenders who performed high-level functions. See Figure 830.

204

Figm'" 8-30
P""C4'UI of OfTfOudns Cou\"ictfOd of au Off4'USfO Cal'l'yiug a Dl'ug :\1alldalol'y Minimum PfOuall)"
\Vbo "'""" R"U"Hd of Ib4' P"uahy By OfTfOlld4'I' FUIU'liou
Cr::lck Cocain" OfffOlld",'s
Fiscal Y"::Ir 2009 Sl'lInpl4' DRill

100,0

'P~'~R~':.:"

~

T

.SubAsSl& S"

__

,... ,.

....
JO.O
20.0

•••

,t
$~

.,.

SOl;l.c~.

8.

.,<
"

~.

0"

..'" •

, J-

<1"

-" .' .'
,,<

~

•• "
.<

<-"
..~

0'

."

~"

<!-

u.s. s - . " e - !009 _ _ o...s..

Summary

With respect to mandatory minimum penalties for crack cocaine offenders, Commission
analyses demonstrate the following:
Offenses and Offenders
•

The majority of crack cocaine offenders sentenced in fiscal year 2010 were sentenced
prior to August 3, 2010, the date of enactment of the Fair Sentencing Act of 2010. Some
degree of caution should be exercised in drawing conclusions from the crack cocaine data
analyzed in this report because it is not yet clear how the Fair Sentencing Act of 2010
will impact sentences for crack cocaine offenses.

•

Crack cocaine offenses accounted for approximately one-fifth (19.8%, n= 4,751) of all
drug offenses in fiscal year 2010. The majority of crack cocaine offenders (82.2%,
n=3,905) were convicted of an offense carrying a mandatory minimum penalty.

•

Most crack cocaine offenders are Black (78.6%), followed by Hispanic (13.0%), White
(7.3%), and Other Race (1.1%) offenders.

•

The overwhelming majority of crack cocaine offenders are male (91.5%), and United
States citizens (97.3%).

•

Crack cocaine offenders convicted of an offense carrying a mandatory minimum penalty
were subject to the mandatory minimum penalty at a higher rate (64.0%) than drug
205

offenders overall (45.6%). The principal reason for this difference is that crack cocaine
offenders are eligible for relief from mandatory minimum penalty provisions pursuant to
the safety valve less often than other drug offenders, due to criminal history or the
involvement of a firearm or other dangerous weapon in the offense.
•

Six districts reported 100 or more crack cocaine offenders convicted of an offense
carrying a mandatory minimum penalty in fiscal year 2010.

•

The most common functions for crack cocaine offenders were Street-Level Dealer
(47.0%) and Wholesaler (27.9%).

Application and Relief
•

In fiscal year 2010, 94.6 percent (n=3,695) of crack cocaine offenders convicted of an
offense carrying a mandatory minimum penalty pled guilty while 5.4 percent (n=210)
proceeded to trial. By comparison, 98.2 percent (n=823) of crack cocaine offenders
convicted of a drug offense not carrying a mandatory minimum penalty in fiscal year
2010 pled guilty.

•

Less than half (42.1%) of all crack cocaine offenders convicted of an offense carrying a
mandatory minimum penalty were sentenced within the applicable guideline range.

•

•

o

One-third (32.9%) of crack cocaine offenders convicted of an offense carrying a
mandatory minimum penalty received a government sponsored below range
sentence.

o

Crack cocaine offenders convicted of an offense carrying a mandatory minimum
penalty received a non-government sponsored below range sentence in 23.9
percent of the cases. This is the highest rate of such sentences reported for any
drug type.

Crack cocaine offenders remained subject to a mandatory minimum penalty at sentencing
at a higher rate (64.0%) than drug offenders overall (45.6%).
o

The principal reason for this difference is that crack cocaine offenders receive
relief from mandatory minimum penalty provisions pursuant to the safety valve
less often than do other drug offenders (11.7 percent of crack cocaine offenders
compared to 35.1 percent of drug offenders overall).

o

Only 22.8 percent of crack cocaine offenders convicted of an offense carrying a
mandatory minimum penalty had no or only one criminal history points, which is
a requirement for application of the safety valve provision.

Other Race crack cocaine offenders qualified for some form of relief from a mandatory
minimum penalty most often, in 60.5 percent of their offenses carrying such a penalty,
followed by White (56.2%) and Black (35.9%) offenders. Hispanic offenders qualified
206

for relief from mandatory minimum penalties least often, in 26.2 percent of the cases in
which they were convicted of an offense carrying such a penalty.

•

•

o

Other Race offenders received substantial assistance relief alone from a
mandatory minimum penalty most often, in 42.1 percent of their offenses carrying
such a penalty, followed by White (33.1%) and Black (25.3%) offenders.
Hispanic offenders received relief from mandatory minimum penalties through
substantial assistance the least often, in 14.4 percent of their cases.

o

Other Race offenders received safety valve relief alone most often, in 13.2 percent
of their cases, followed by White (12.8%) and Hispanic (9.1%) offenders. Black
offenders received relief from mandatory minimum penalties through the safety
valve the least often, in 7.6 percent of their cases.

o

White offenders received relief from a mandatory minimum penalty through a
combination of substantial assistance and safety valve relief most often, in 10.4
percent of their cases, followed by Other Race (5.3%), Black (3.0%) and Hispanic
(2.7%) offenders.

Female crack cocaine offenders received relief from the mandatory minimum penalty in
61.0 percent of their cases, compared to 34.1 percent for male crack offenders.
o

Female offenders received substantial assistance relief alone from a mandatory
minimum penalty more often, in 27.7 percent of their cases, compared to male
offenders (24.1%).

o

Female offenders received safety valve relief alone more often, in 19.6 percent of
their cases, compared to male offenders (7.3%).

o

Female offenders also received relief from a mandatory minimum penalty through
a combination of substantial assistance and safety valve relief more often, in 13.7
percent of their cases, compared to 2.7 percent of cases involving male offenders.

Non-citizen crack cocaine offenders received relief from the mandatory minimum penalty
at a higher rate (45.0%) than United States citizen crack cocaine offenders (35.8%).
o

United States citizen crack cocaine offenders received substantial assistance relief
alone from a mandatory minimum penalty more often in 24.5 percent of their
cases, compared to non-citizen offenders (19.3%).

o

Non-citizen offenders received safety valve relief alone more often, in 22.9
percent of their cases, compared to United States citizens (7.7%).

o

United States citizen offenders received relief from a mandatory minimum
penalty through a combination of substantial assistance and safety valve relief

207

more often, in 3.5 percent of their cases, compared to 2.8 percent of cases
involving non-citizens.
•

In fiscal year 2010, the average extent of substantial assistance departures in crack
cocaine cases was 49.7 percent (87 months) from the bottom of the otherwise applicable
guideline range.

•

In fiscal year 2010, the average extent of non-government sponsored below range
sentences in crack cocaine cases was 30.3 percent (45 months) from the bottom of the
otherwise applicable guideline range.

Sentencing
•

In fiscal year 2010, 64.0 percent of crack cocaine offenders convicted of an offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing.

•

In fiscal year 2010, the rate at which crack cocaine offenders convicted of an offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing varied by race, gender and citizenship.
o

Hispanic offenders were subject to the mandatory minimum penalty at sentencing
most often, in 73.8 percent of their offenses carrying such a penalty, followed by
Black (64.1%) and White (43.8%) offenders. Other Race offenders were subject
to the mandatory minimum penalty at sentencing the least often, in 39.5 percent
of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (65.9% of their cases, compared to 39.0% of
cases involving female offenders).

o

United States citizens were subject to the mandatory minimum penalty at
sentencing more often than non-citizens offenders (64.2% of their cases,
compared to 55.0% of cases involving non-citizen offenders).

•

The average sentence for crack cocaine offenders who remained subject to a mandatory
minimum penalty at the time of sentencing (i.e., who did not receive any form of
statutory relief) was 139 months. The average sentence for crack cocaine offenders who
obtained relief from a mandatory minimum penalty was 80 months.

•

Black offenders convicted of an offense carrying a mandatory minimum penalty also
received the highest average sentence (126 months), compared to White offenders (82
months), Hispanic Offenders (91 months), and Other Race offenders (120 months).
Black offenders who remained subject to a mandatory minimum penalty at sentencing
had a higher average sentence (148 months) than either White (120 months) or Hispanic

208

offenders (105 months), but Other Race offenders received the highest sentences, on
average, at 160 months.
•

The higher average sentences for Black crack cocaine offenders is, in part, attributable to
criminal history category differences between Black offenders and those in the other
racial groups.

Prison Impact
•

F.

At the end of fiscal year 2010, crack cocaine offenders constituted 17.0 percent of all
drug offenders in the custody of the Bureau of Prisons, more than any other type of drug
offender. This is largely attributable to the fact that offenders in crack cocaine cases
received the longest sentences, on average, of any type of drug offense.
MARIJUANA OFFENSES

In fiscal year 2010, 6,161 of the 23,964 drug offenders (25.7%) were convicted of a
marijuana offense. Of those marijuana offenders, 2,725 (44.2%) were convicted of an offense
carrying a mandatory minimum penalty. Only 15.6 percent (n=961) of the 6,161 marijuana
offenders were subject to the mandatory minimum penalty at sentencing. This is the smallest
percentage of drug offenders subject to the mandatory minimum penalty at sentencing among the
major drug types.
1.

Demographic Characteristics of Marijuana Offenders

The race and citizenship of marijuana offenders is notably different than the race and
citizenship of drug offenders generally and of offenders in each of the other major drug types.
Table 8-10 presents information on the demographic characteristics of marijuana offenders. This
information is then compared to that for marijuana offenders convicted of an offense carrying a
mandatory minimum penalty, marijuana offenders convicted of an offense carrying a mandatory
minimum penalty and relieved of application of the mandatory minimum penalty, and then to
those marijuana offenders who remained subject to the mandatory minimum penalty at the time
of sentencing because they did not qualify for any form of statutory relief.

209

Table 8-10
Demographic Characteristics of Marijuana Offenders
Fiscal Year 2010

Total (# of offenders)

All Offenders

Convicted of a Statute
Carrying a Mandatory
Minimum Penalty

Relieved of
Application of
Mandatory
Minimum Penalty

Subject to
Mandatory
Minimum Penalty
at Sentencing

6,161

2,725

1,764

961

Race of Offender (Percent)
White

24.3

25.7

28.6

20.4

Black

7.7

9.3

6.1

15.1

64.6

60.4

59.7

61.7

1.0

1.2

5.6

2.8

Hispanic
Other

Citizenship of Offender (Percent)
United States Citizen

53.7

57.9

52.0

68.6

Non-U.S. Citizen

46.3

42.1

48.0

31.4

Gender of Offender (Percent)
Male

88.1

93.6

92.5

95.7

Female

11.9

6.4

7.5

4.3

There was a higher percentage of Hispanic offenders in marijuana offenses than in any
other major drug type. Non-citizens also constituted a greater proportion of marijuana offenders
generally, and of marijuana offenders convicted of an offense carrying a mandatory minimum
penalty, than found for any other major drug type. The proportion of non-citizen marijuana
offenders who were subject to the mandatory minimum penalty was lower than the other
categories, due in large part to the fact that non-citizen marijuana offenders qualified for safety
valve relief at a higher rate than marijuana offenders who were United States citizens.
Table 8-11 displays information about offense characteristics and criminal history
category for marijuana offenders generally, for those marijuana offenders convicted of an
offense carrying a mandatory minimum penalty, marijuana offenders convicted of an offense
carrying a mandatory minimum penalty and relieved of application of the mandatory minimum
penalty, and for those marijuana offenders who remained subject to the mandatory minimum
because they did not obtain either safety valve or substantial assistance relief.
Marijuana offenders subject to the mandatory minimum penalty at sentencing had fewer
instances of weapon and firearm involvement, compared to most other major drug types.668 Only
heroin offenses report a lower rate of application of the weapon specific offense characteristic.
668

See supra Tables 8-5, 8-8, and infra Tables 8-14, 8-17.

210

Marijuana offenses report a lower rate of the application of a firearms mandatory minimum
penalty than powder cocaine and crack cocaine among the major drug types (and the same rate as
heroin).
About two-thirds of all marijuana offenders (67.7%, n=4,173) and of marijuana offenders
convicted of an offense carrying a mandatory minimum penalty (66.4%, n=1,809) were in
Criminal History Category I. This was the highest proportion of Criminal History Category I
offenders reported for any major drug type, which may account for the small percentage (15.6%,
n=961) of marijuana offenders who remained subject to a mandatory minimum penalty at
sentencing.
Table 8-11
Guideline Sentencing Characteristics, Role in the Offense, and
Criminal History of Marijuana Offenders
Fiscal Year 2010

All
Offenders
Total (# of offenders)

Convicted of a
Statute
Carrying a
Mandatory
Minimum
Penalty

6,161

Relieved of
Application of
Mandatory
Minimum
Penalty

Subject to
Mandatory
Minimum
Penalty
at Sentencing

2,725

1,764

961

Characteristics (Percent)
Weapon Specific Offense Characteristic

5.8

8.7

5.3

14.8

Firearms Mandatory Minimum Applied

2.0

4.6

1.8

9.8

55.7

52.1

80.3

0.0

4.1

7.8

4.0

14.8

31.4

28.3

37.3

11.6

Safety Valve Reduction

Role in the Offense (Percent)
Aggravating Role
Mitigating Role

Criminal History Category (Percent)
I

67.7

66.4

84.5

33.1

II

10.5

11.5

6.0

21.6

III

10.9

11.8

5.7

23.0

IV

4.7

4.8

1.9

10.3

V

2.7

2.5

0.7

5.7

VI

3.4

3.0

1.2

6.2

211

2.

Guilty Pleas and Trials

Marijuana offenders convicted of an offense carrying a mandatory minimum penalty
sought a trial at about the same rate as all drug offenders convicted of an offense carrying such a
penalty. In fiscal year 2010, 95.7 percent (n=2,608) of marijuana offenders convicted of an
offense carrying a mandatory minimum penalty pled guilty while 4.3 percent (n=117) proceeded
to trial. As discussed above, drug offenders convicted of such statutes pled guilty 95.5 percent of
the time. In comparison, 98.8 percent (n=3,384) of marijuana offenders in cases without
mandatory minimum penalties pled guilty in fiscal year 2010, while 1.2 percent (n=42) were
proceeded to trial.
3.

Geographic Variations

The 94 judicial districts varied significantly in the number of marijuana cases reported to
the Commission in fiscal year 2010. As a result, the number of marijuana offenders in each
district convicted of an offense carrying a mandatory minimum penalty also varied.
Four districts reported 100 or more marijuana offenders convicted of an offense carrying a
mandatory minimum penalty in fiscal year 2010: Southern Texas (n=560, 6.8% of the criminal
caseload), Western Texas (n=423, 6.4%), Arizona (n=270, 5.5%), and New Mexico (n=160,
4.4%). See Figure 8-31. All of these districts are located on the United States border with
Mexico, a country from which marijuana is often imported into the United States. As a
percentage of the overall caseload, marijuana offenders convicted of an offense carrying a
mandatory minimum penalty were most common in Western Kentucky, where 7.1 percent of the
criminal caseload (n=28 of the 394 offenders) involved this type of case, as well as Southern
Iowa (6.7%, n=28 of the 419 offenders), and Oregon (6.7%, n=34 of 507 offenders).

212

Figm'{' 8-31
Numb{'r of Mluijulllla Off{'ndHs Convict{'d of an Off{'ns{' Clul'ying a
Drug :\fandatol')' Minimum P{,lll'llty b)' District
Fiscal Y{'ar 2010

8 '"
~~o

5OUKCE,

4.

to .. 99

c::::J
_

10 to 99
~oo to 7S1

8

100 '0 249

>7S0

u.s_~e-"",,'OIOD>t.~,USSCYYIO

Relief from the Mandatory Minimum Penalty

Marijuana offenders were subject to the mandatory minimum penalty at a lower rate
(35.3%, n=961) than drug offenders overall (45.6%, n=7,212). Compare Figure 8-32 with Figure
8-4. The principal reason for this difference is that marijuana offenders received relief from the
mandatory minimum penalty pursuant to the safety valve more often than other drug offenders.
More than half (52.0%, n=1,417) of marijuana offenders convicted of an offense carrying a
mandatory minimum penalty obtained relief through the operation of the safety valve,669
compared to 35.1 percent (n=5,557) of drug offenders overall. This difference was primarily due
to the fact that approximately two-thirds (66.4%, n=1,809) of marijuana offenders convicted of
an offense carrying a mandatory minimum penalty were in Criminal History Category I (zero to
one criminal history point).
Approximately one-quarter (23.3%, n=635) of marijuana offenders received relief from a
mandatory minimum penalty by providing substantial assistance to the government, either alone
or in conjunction with safety valve relief. See Figure 8-32. This compares to 28.3 percent of
drug offenders overall.

669

Either alone or in conjunction with relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the
government.

213

Figm'(' 8-32
P(,I'('('nt of Mlll'ijUlUHl. Off('nd('l's Con"kt('d of an Off('ns(' Carrying a
Drug Mandatory Minimum P('nalty 'VlJo 'V('I'(' R('!i('\'('d of t!l(' P('nalty
Fiscal Y('ar 2010
.:\"o Reliff

SubSlanlial As,i,lanrt

• Saftry' 'illn

• Sub Am & S"

80.0

60.0

40.0

20.0

0.0

AO

5OUKc:E,

While

Black Hispanic Olher

'faIt Femalt

U.S.
:\"onCitiztn Citizen

u.s. ~ e-""" ,OIOIht.lI1o, USSCTYIO

The rate at which offenders received relief from mandatory minimum penalties through
these provisions varied by race, gender, and citizenship.670 For example, Other Race offenders
qualified for some form of relief from a mandatory minimum penalty most often, with 78.6%
(n=99) of all Other Race offenders convicted of an offense carrying such a penalty obtaining
relief from the penalty. As was observed for other major drug types, Black offenders in
marijuana cases qualified for relief from mandatory minimum penalties the least often, in less
than half (42.5%; n=107) of cases in which they were convicted of an offense carrying such a
penalty. See Figure 8-32.
Over three-quarters of all female marijuana offenders (76.4%, n=133) received relief from
the mandatory minimum penalty compared to almost two-thirds (63.9%, n=1,631) of male
offenders. See Figure 8-32. Female marijuana offenders qualified for the safety valve more
frequently than male marijuana offenders, either alone or in conjunction with providing
substantial assistance to the government (compare 66.1%, n=115 to 51.0%, n=1,302,
respectively). Female marijuana offenders also received relief from a mandatory minimum
penalty by providing substantial assistance to the government, either alone or in conjunction with
safety valve relief at a higher rate (37.3%, n=65) than male marijuana offenders (22.3%, n=570).
Marijuana offenders who were non-citizens most often received relief from mandatory
minimum penalties through operation of the safety valve provision, alone or in conjunction with
670

Figure 8-32 (Percent of Marijuana Offenders Convicted of an Offense Carrying a Drug Mandatory Minimum
Penalty Who are Relieved of the Penalty (Fiscal Year 2010)) shows the breakdown by categories. For purposes of
this discussion, the rates at which offenders received safety valve reflect both cases in which such relief was given
alone and those in which it was given after the offender’s substantial assistance to the government.

214

providing substantial assistance. The safety valve applied in two-thirds (66.8%, n=767) of
marijuana cases involving a non-citizen convicted of an offense carrying a mandatory minimum
penalty. The rate in such cases involving a United States citizen was 41.1 percent (n=649). See
Figure 8-32. The difference in rate of application of the safety valve relief for United States
citizen and non-citizen marijuana offenders is associated with differences in the criminal history
categories for each group. The overwhelming majority (81.9%, n=940) of non-citizen marijuana
offenders were in Criminal History Category I. In contrast, slightly more than one half (55.1%,
n=868) of United States citizen marijuana offenders were in that criminal history category.671
5. Sentencing Outcomes
a.

Average sentence length

The average sentence for marijuana offenders who remained subject to a mandatory
minimum penalty at the time of sentencing (i.e., who did not receive any form of statutory relief)
was 93 months, compared to 34 months for marijuana offenders who obtained relief.
The different forms of relief from a mandatory minimum penalty affected the average
sentence imposed on marijuana offenders. Offenders who qualified for the safety valve and also
provided the government with substantial assistance had the lowest average sentence at 20
months. The average sentence imposed on marijuana offenders who provided substantial
assistance to the government was 53 months. This average sentence was lower than the average
sentence of 90 months for drug offenders generally who provided substantial assistance.
The average sentence imposed on marijuana offenders who received relief from a
mandatory minimum through application of the safety valve provision only was 32 months, the
shortest for any drug type. This average sentence was lower than the average sentence of 49
months for all drug offenders who received relief from a mandatory minimum through
application of the safety valve provision.
b.

Position relative to the guideline range

Table 8-12 compares the position of the sentence imposed relative to the guideline range
among marijuana offenders generally, marijuana offenders convicted of an offense carrying a
mandatory minimum penalty, marijuana offenders convicted of an offense carrying a mandatory
minimum penalty and relieved of application of the mandatory minimum penalty, and then
marijuana offenders who remained subject to the mandatory minimum penalty at the time of
sentencing because they did not qualify for any form of statutory relief. Slightly more than half
(51.6%, n=1,407) of all marijuana offenders convicted of an offense carrying a mandatory
minimum penalty were sentenced within the applicable guideline range. Approximately onethird (33.9%, n=925) of marijuana offenders convicted of an offense carrying a mandatory
minimum penalty received government sponsored below range sentences. Marijuana offenders
convicted of an offense carrying a mandatory minimum penalty received a non-government

671

See Figure D-28 (Citizenship of Marijuana Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty By Criminal History Category (Fiscal Year 2010)) in Appendix D of this Report.

215

sponsored below range sentence in 13.6 percent (n=371) of the cases. This is the lowest rate of
such sentences reported for any drug type.
Table 8-12
Sentence Relative to the Guideline Range of Marijuana Offenders
Fiscal Year 2010

All
Offenders
Total (# of offenders)

Convicted of a
Statute
Carrying a
Mandatory
Minimum
Penalty

6,161

Relieved of
Application of
Mandatory
Minimum
Penalty

2,725

Subject to
Mandatory
Minimum
Penalty
at Sentencing

1,764

961

Sentence Relative to the Guideline Range (Percent)
Within Range

56.3

51.6

36.3

79.8

Above Range

1.0

0.8

0.2

1.9

Substantial Assistance '5K1.1

14.1

23.3

36.0

0.0

Other Government Sponsored
(no '5K1.1)

16.3

10.6

13.1

6.1

Other Below Range

12.3

13.6

14.4

12.2

Marijuana offenders who remained subject to the mandatory minimum penalty at the time
of sentencing received a non-government sponsored below range sentence in 12.2 percent
(n=117) of the cases. This is the lowest rate of such sentences reported for any major drug
type.672 Marijuana offenders subject to a mandatory minimum penalty at the time of sentencing
were sentenced above the applicable guideline range in 1.9 percent (n=18) of the cases, the
highest rate of such sentences reported for any drug type.
Figures 8-33 and 8-34 show the impact on sentences from substantial assistance
departures and from other below range sentences. These figures display the average guideline
range minimum and the average sentence imposed for marijuana offenses for offenders
sentenced from fiscal year 1995 to 2010. As the figures demonstrate, the average sentences
imposed were often below the five-year mandatory minimum penalty even though the average
guideline minimum sentence was above that level.

672

This finding seems inconsistent with opinions expressed by the district court judges in the survey conducted by
the Commission in 2010, in which more than half (54%) of judges responded that mandatory minimum penalties for
marijuana offenses were too high. See Commission, 2010 Judges’ Survey.

216

Figun' 8-33
Av('rag(' Guid('lin(' Minimum and AV(,l':l.g(' S('nt('nc(' for Off('nd('rs Convict('d of an
Off('ns(' Carrying a Drug Mandatory Minimum P('nalty
Substantial Assistanc('
Marijuana Off('ndHs
Fiscal Y('ars 1992 - 2010
~Sentence

--Guideline Minimum

:\fonths

240
220
200
180
160
140

....

120

"-

100
80
60
40
20

--

~

-......-..-

...,..K

------

o

SOURCE:

/'

.......

~

-

.... -

us Sentencing COmmiSsiOD 1992 through 2010 D.t.fiIe, USSCFY1992- USSCFY2010.

FigUl'(, 8-34
Av('rag(' Guid('lin(' Minimum and AVHag(' S('nt('nc(' for Off('ndHs Convict('d of an
Off('ns(' Carrying a Drug Mandatory Minimum P('nalty
NOll-Substantial AssistaIlc(' B('low Rang(' S('Ilt('IlC('
Marijuana Off(,IldHS
Fiscal Y('ars 1992 - 2010
240

~Sentence

--Guideline Mini.mum

:Vlonths

220

200
180
160
140
120

100
80
60
40
20

'-

\

....

."
'-"" "' '\..
\/"\.
~

""- ......-

.....

/

"T'
--- ...
~

-

.

..... ......
.............
-r

--- ...

o

SOURCE:

u.s. SemeDcing COmmiSSiOD 1992 through 2010 D.t<fiIe, USSCFYl992- USSCFY2010.

In fiscal year 2010, the average extent of substantial assistance departures in marijuana
cases was 52.5 percent (40 months) from the bottom of the otherwise applicable guideline range.
In the same year, the average extent of non-government sponsored below range sentences (i.e.,
departures and variances combined) in marijuana cases was 35.5 percent (21 months) from the
bottom of the otherwise applicable guideline range.
217

6.

Prison Impact

At the end of fiscal year 2010, 6.5 percent (12,473 of the 191,757 offenders) of those in
BOP custody were marijuana offenders. By comparison, at the end of 1995, marijuana offenders
accounted for 10.7 percent (n=7,727 of 71,972) of the offenders in BOP custody. The
percentage of marijuana offenders convicted of an offense carrying a mandatory minimum
penalty, however, has increased from 61.3 percent (n=4,736) in 1995 to the current high of 72.0
percent (n=8,984) in fiscal year 2010. Likewise, the percentage of marijuana offenders in BOP
custody subject to the mandatory minimum penalty at sentencing has increased from 40.6
percent (n=3,141) in 1995 to 43.2 percent (n=5,386) in 2010, though to a smaller extent.673
7.

Offender Function

For marijuana offenses, the most common low-level functions were Courier (54.7%),
followed by Mule (12.0%). The only high-level function observed with any significant
frequency was High-Level Supplier/Importer (10.5%). The least common functions were
Organizer/Leader (0.8%), Manager (0.9%), and Broker (0.9%).674 In marijuana offenses, midlevel function offenders were subject to mandatory minimum penalties at higher rates than
higher-level function offenders. See Figure 8-35.

673

See Figure D-33 (Percentage of Offenders in Prison Not Convicted of an Offense Carrying a Mandatory
Minimum, Convicted of an Offense Carrying a Mandatory Minimum Penalty and Subject to a Mandatory Minimum
Penalty at Sentencing- Marijuana Offenders (1995–2010)) in Appendix D of this Report.

674

See Figure D-34 (Distribution of Offender Function by Primary Drug Type Marijuana Offenders (Fiscal Year
2009 Sample Data)) in Appendix D of this Report.

218

Figul'(, 8-35
P(,l"nut of Off(,lldHS Couvict('d of au Off('us(' CalT)·illg a
Dmg Mandatory Minimum Pt>nalt)' and SUbjN:t to a Mandatory Minimum Pt>nalty
by Off('ndt>1" Fuuction and Primary Drug Typ('
Marijuana Off('udHs
Fiscal Yt>al' 2009 Samplt> Data
• ConvicTed

100.0 Pel·ceD'

80. 0

.Snbjecf AfTel' Relief

---- --- ---- --- ---- --- ---- --- ---- --- ---- --- ------

60.0
~.o

40.0

!i.0

20.0

6

w
0.0

.0"

,"

. . .V. i

0"

,."",

.'

,0

.~'

,,'o'

<,'
<'
"
~~'"

.4.3

0"

"<!-.....

"

0'

<.""<;

9J~:t

~"

<,'

"V

Low-level function offenders in marijuana offenses obtained relief from mandatory
minimums at the highest rates. See Figure 8-36. Marijuana offenders who performed functions
lower than Street-Level Dealer obtained relief in at least two-thirds of their cases (with Broker
offenders receiving relief least often, in 67.7% of their cases). Contrary to the pattern observed
for most other major drug types, many lower-level function offenders who received relief did so
through the safety valve rather than by providing substantial assistance to the government. Some
of the highest-level offenders also received relief from a mandatory minimum penalty at high
rates. For example, Grower/Manufacturer offenders received relief in 85.3 percent of all cases,
higher than every function category. Wholesalers offenders obtained relief in 66.7 percent of
their cases, and High-Level Supplier/Importer offenders (the most serious category) obtained
relief in 58.3 percent of their cases. Street-Level Dealer offenders, a category in the middle of
the groups in terms of culpability, received relief at the lowest rate of any category, in just 12.5
percent of their cases.

219

Figurl' 8-36
P('I'c('ut of Off('nd('l's Couvktl'd of llll Offl'usl' Clll'l'ying II Dl'Ug i\1llndlltol'Y MinilllulIl Pl'n:tlt)'
\Vl1o \"('1'(' R('!il'\'('d of till' P('lIlllty By OffNld('l' Function
Mlll'ijUllU:t OffNld('l's
FiSClll Y(':tr 1009 S:tmpll' Dlltll
HlO.O I Pc·~·~·~··~·

.:,\,,, Relief
~_~_~_~

_

33.3

60.0

--- 30.0

-10.0

---

20.0

---

0.0

o·

,:;'

'"
8.

..
" ." ."
'" ,,.0

~

'}., -:;

~,

0"

",

"'....'"
.$'0'•

.'"

"':.....-:;

o'

,<

,~

,,-'

",

~"

"V

Summary

With respect to mandatory minimum penalties for marijuana offenses, Commission
analyses demonstrate the following:
Offenses and Offenders
•

Marijuana offenses accounted for approximately one-quarter (25.7%, n= 6,161) of all
drug offenses in fiscal year 2010. Less than half (44.2%, n= 2,725) of marijuana
offenders were convicted of an offense carrying a mandatory minimum penalty.

•

Almost two-thirds of marijuana offenders are Hispanic (64.6%), followed by White
(24.3%), Black (7.7%) and Other Race (1.0%) offenders.

•

The majority of marijuana offenders are male (88.1%).

•

United States citizens accounted for 53.7 percent of marijuana offenders.

•

Four districts reported 100 or more marijuana offenders convicted of an offense carrying
a mandatory minimum penalty in fiscal year 2010.

•

The most common functions among marijuana offenders were Courier (54.7%), Mule
(12.0%), and High-Level Supplier/Importer (10.5%).

220

Application and Relief
•

In fiscal year 2010, 95.7 percent (n=2,608) of marijuana offenders convicted of an
offense carrying a mandatory minimum penalty pled guilty while 4.3 percent (n=117)
proceeded to trial. In comparison, 98.8 percent (n=3,384) of marijuana offenders in cases
without mandatory minimum penalties pled guilty in fiscal year 2010, while 1.2 percent
(n=42) proceeded to trial.

•

Marijuana offenders were subject to the mandatory minimum penalty at a lower rate
(35.3%) than drug offenders overall (45.6%). The principal reason for this difference is
that marijuana offenders received relief from mandatory minimum penalty provisions
pursuant to the safety valve more often than other drug offenders.
o

About two-thirds of marijuana offenders convicted of an offense carrying a
mandatory minimum penalty (66.4%, n=1,809) were in Criminal History
Category I. This was the highest proportion of Criminal History Category I
offenders reported for any major drug type.

o

Other Race offenders qualified for some form of relief from a mandatory
minimum penalty most often, in 78.6 percent of their offenses carrying such a
penalty, followed by White (72.0%) and Hispanic (64%) offenders. Black
offenders qualified for relief from mandatory minimum penalties least often, in
42.5 percent of the cases in which they were convicted of an offense carrying
such a penalty.

o



White offenders received substantial assistance relief alone from a
mandatory minimum penalty most often, in 21.0 percent of their offenses
carrying such a penalty, followed by Other Race (16.7%) and Black
(15.5%) offenders. Hispanic offenders received relief from mandatory
minimum penalties through substantial assistance the least often, in 8.5
percent of their cases.



Hispanic offenders received safety valve relief alone most often, in 48.2
percent of their cases, followed by Other Race (45.2%) and White (33.3%)
offenders. Black offenders received relief from mandatory minimum
penalties through the safety valve the least often, in 17.5 percent of their
cases.



White offenders received relief from a mandatory minimum penalty
through a combination of substantial assistance and safety valve relief
most often, in 17.6 percent of their cases, followed by Other Race
(16.7%), Black (9.5%) and Hispanic (7.2%) offenders.

Over three-quarters of all female marijuana offenders (76.4%) received relief
from the mandatory minimum penalty compared to almost two-thirds (63.9%) of
male offenders.
221

o

•

•



Male offenders received substantial assistance relief alone from a
mandatory minimum penalty more often in 12.9 percent of their cases,
compared to female offenders (10.3%).



Male offenders also received safety valve relief alone more often, in 41.6
percent of their cases, compared to female offenders (39.1%).



Female offenders received relief from a mandatory minimum penalty
through a combination of substantial assistance and safety valve relief
more often in 27.0 percent of their cases, compared to 9.4 percent of cases
involving male offenders.

Non-citizen marijuana offenders received relief from the mandatory minimum
penalty at a higher rate (73.7%) than United States citizen marijuana offenders
(58.2%).


United States citizen marijuana offenders received substantial assistance
relief alone from a mandatory minimum penalty more often in 17.0
percent of their cases, compared to non-citizen offenders (6.9%).



Non-citizen offenders received safety valve relief alone more often, in
59.8 percent of their cases, compared to United States citizens (28.0%).



United States citizen offenders received relief from a mandatory minimum
penalty through a combination of substantial assistance and safety valve
relief more often, in 13.1 percent of their cases, compared to 7.0 percent of
cases involving non-citizens.

A little over half (51.6%) of all marijuana offenders convicted of an offense carrying a
mandatory minimum penalty were sentenced within the applicable guideline range.
o

Almost 35 percent (33.9%) of marijuana offenders convicted of an offense
carrying a mandatory minimum penalty received a government sponsored below
range sentence.

o

Marijuana offenders convicted of an offense carrying a mandatory minimum
penalty received a non-government sponsored below range sentence in 13.6
percent of the cases.

In fiscal year 2010, the average extent of substantial assistance departures in marijuana
cases was 52.5 percent (40 months) from the bottom of the otherwise applicable guideline
range.

222

•

In fiscal year 2010, the average extent of non-government sponsored below range
sentences in marijuana cases was 35.5 percent (21 months) from the bottom of the
otherwise applicable guideline range.

Sentencing
•

In fiscal year 2010, 35.3 percent of marijuana offenders convicted of an offense carrying
a mandatory minimum penalty were subject to the mandatory minimum penalty at
sentencing.

•

In fiscal year 2010, the rate at which marijuana offenders convicted of an offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing varied by race, gender and citizenship.

•

o

Black offenders were subject to the mandatory minimum penalty at sentencing
most often, in 57.5 percent of their offenses carrying such a penalty, followed by
Hispanic (36.0%) and White (28.0%) offenders. Other Race offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 21.4
percent of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (36.1% of their cases, compared to 23.6% of
cases involving female offenders).

o

United States citizens were subject to the mandatory minimum penalty at
sentencing more often than non-citizens offenders (41.8% of their cases,
compared to 26.3% of cases involving non-citizen offenders).

Marijuana offenders received the shortest sentences of any major drug type. The average
sentence for marijuana offenders who remained subject to a mandatory minimum penalty
at the time of sentencing (i.e., who did not receive any form of statutory relief) was 93
months. The average sentence for marijuana offenders who obtained relief from a
mandatory minimum penalty was 32 months.

Prison Impact
•

G.

At the end of fiscal year 2010, 6.5 percent of the offenders in the custody of the Bureau
of Prisons were marijuana offenders.
METHAMPHETAMINE OFFENSES

In fiscal year 2010, 4,169 (17.4%) of the 23,964 drug offenders committed an offense
involving methamphetamine. The majority of those methamphetamine offenders (83.1%,
n=3,466) were convicted of an offense carrying a mandatory minimum penalty. Less than half
of the methamphetamine offenders convicted of an offense carrying a mandatory minimum

223

penalty (42.0%, n=1,456) were subject to the mandatory minimum at sentencing. See Table 813.
1.

Demographic Characteristics of Methamphetamine Offenders

Table 8-13 presents information on the demographic characteristics of methamphetamine
offenders generally. This information is then compared to that for methamphetamine offenders
convicted of an offense carrying a mandatory minimum penalty, methamphetamine offenders
convicted of an offense carrying a mandatory minimum penalty and relieved of application of the
mandatory minimum penalty, and then to those methamphetamine offenders who remained
subject to the mandatory minimum at the time of sentencing because they did not qualify for any
form of statutory relief.
Table 8-13
Demographic Characteristics of Methamphetamine Offenders
Fiscal Year 2010
Convicted of a Statute
Carrying a
Mandatory Minimum
Penalty

All
Offenders
Total (# of offenders)

4,169

Relieved of
Application of
Mandatory
Minimum
Penalty

3,466

Subject to
Mandatory
Minimum Penalty
at Sentencing

2,010

1,456

Race of Offender (Percent)
White

52.6

51.3

52.5

49.7

Black

2.3

2.2

1.9

2.7

41.0

42.6

41.1

44.8

4.1

3.8

4.5

2.9

Hispanic
Other

Citizenship of Offender (Percent)
United States Citizen

69.0

66.1

62.5

71.0

Non-Citizen

31.0

33.9

37.5

29.0

Gender of Offender (Percent)
Male

81.4

81.9

77.1

88.5

Female

18.6

18.1

22.9

11.5

The demographic characteristics for methamphetamine offenders convicted of an offense
carrying a mandatory minimum penalty differ from those observed for most other major drug
types in two ways. First, more than half (51.3%, n=1,776) of methamphetamine offenders
convicted of an offense carrying a mandatory minimum penalty are White and another 42.6
percent (n=1,476) are Hispanic. Black methamphetamine offenders constitute only 2.2 percent
(n=77) of the methamphetamine offenders convicted of an offense carrying a mandatory
224

minimum penalty. This is the smallest proportion of Black offenders for any major drug type.675
In contrast, Other Race offenders constitute 3.8 percent (n=132) of the methamphetamine
offenders convicted of an offense carrying a mandatory minimum penalty, which is the largest
proportion of Other Race offenders for any drug type.
Second, female offenders accounted for 18.1 percent (n=627) of all methamphetamine
offenders convicted of an offense carrying a mandatory minimum penalty. Although this not a
large percentage, it is higher than both the proportion of female offenders in the overall
population of drug offenders convicted of an offense carrying a mandatory minimum penalty
(10.2%, n=1,611) and the proportion of female offenders convicted of an offense carrying a
mandatory minimum penalty for any other drug type.676
Table 8-14 displays information about offense characteristics and criminal history
category of methamphetamine offenders generally. This information is then compared to that for
methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty,
methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty and
relieved of application of the mandatory minimum penalty, and then to those methamphetamine
offenders who remained subject to the mandatory minimum at the time of sentencing because
they did not qualify for any form of statutory relief.

675

See Tables 8-4, 8-7, 8-10 infra, and Table 8-16, supra.

676

Id.

225

Table 8-14
Guideline Sentencing Characteristics, Role in the Offense, and
Criminal History of Methamphetamine Offenders
Fiscal Year 2010

All
Offenders

Convicted of a
Statute Carrying
a Mandatory
Minimum
Penalty

Relieved of
Application
of Mandatory
Minimum
Penalty

Subject to
Mandatory
Minimum
Penalty
at Sentencing

4,169

3,466

2,010

1,456

Total (# of offenders)

Characteristics (Percent)
Weapon Specific Offense Characteristic

14.2

13.7

8.9

20.3

Firearms Mandatory Minimum Applied

4.1

4.9

2.4

8.3

33.7

36.8

63.4

0.0

5.5

6.3

4.6

8.5

17.1

18.0

25.9

7.0

Safety Valve Reduction

Role in the Offense (Percent)
Aggravating Role
Mitigating Role

Criminal History Category (Percent)
I

48.7

50.1

68.8

24.1

II

12.6

12.8

8.7

18.4

III

14.9

14.5

9.8

21.0

IV

8.1

7.4

3.9

12.3

V

4.2

4.0

2.6

6.0

VI

11.5

11.2

6.2

18.3

2.

Guilty Pleas and Trials

Methamphetamine offenders convicted of an offense carrying a mandatory minimum
penalty went to trial at about the same rate as all drug offenders convicted of an offense carrying
such a penalty. In fiscal year 2010, 96.9 percent (n=3,358) of methamphetamine offenders
convicted of an offense carrying a mandatory minimum penalty pled guilty while 3.1 percent
(n=108) proceeded to trial. As discussed above, drug offenders convicted of such statutes pled
guilty 95.5 percent of the time. By comparison, 97.7 percent (n=682) of methamphetamine
offenders in cases without mandatory minimum penalties in fiscal year 2010 pled guilty while
2.3 percent (n=16) were convicted after trial.

226

3.

Geographic Variations

As with other drug types, the number of methamphetamine cases reported each year
varied among the 94 judicial districts. As a result, the number of methamphetamine offenders in
each district convicted of an offense carrying a mandatory minimum penalty also varied.
Eight of the 94 judicial districts reported 100 or more methamphetamine offenders
convicted of an offense carrying a mandatory minimum penalty in fiscal year 2010: Southern
California (n=301, 10.0% of the overall criminal caseload), Nebraska (n=154, 27.1%), Western
Tennessee (n=139, 22.2%), Central California (n=127, 7.0%), Wyoming (n=126, 34.2%),
Eastern Tennessee (n=121, 14.8%), Minnesota (n=108, 22.4%), and Southern Iowa (n=100,
23.9%). See Figure 8-37. As a percentage of the overall caseload, methamphetamine offenders
convicted of an offense carrying a mandatory minimum penalty were most common in the
District of Hawaii, where 41.8 percent of the criminal caseload (66 of the 158 offenders)
involved methamphetamine cases, as well as Wyoming (34.2%, 126 of 368 offenders) and
Northern Iowa (28.3%, 97 of 343 offenders).
Figure 8-37
Numbl"l' of l\'1l"1h~mphl"t~miul"Offl"udl"l's Comi('ll"d of ~Il Offl"lL~l" Cm'l'~'illg ~ Drug
M~ud~lol'~' :\Iillimum Pl"lI~lt~· b~' Distli('1
Fi~('~1 \{>~I' 2010

..

"

()

=, ,.

=" ,... = ". '" .., _

..

""""'E. " .•. _ ~..... 2010_.l1'iS<IT10

4.

Relief from the Mandatory Minimum Penalty

In fiscal year 2010, more than half (58.0%, n=2,010) of methamphetamine offenders
convicted of an offense carrying a mandatory minimum penalty received relief from the
mandatory minimum penalty. Slightly more than one-quarter (26.8%, n=928) of the
methamphetamine offenders received relief through operation of the safety valve alone.
Methamphetamine offenders who did not qualify for the safety valve, but who provided
227

substantial assistance to the government accounted for 21.2 percent (n=736) of all
methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty. A
smaller percentage (10.0%, n= 346) of methamphetamine offenders received relief from the
mandatory minimum penalty by qualifying for application of both the safety valve and
substantial assistance provisions. See Figure 8-38.
Figure 8-38
Pl"l'Cl"llt of i'lIl"t1mm(lhl"l~milll" Offl"llIll"l'S COllviCtNI of ~n Offl"llSl" C~I'I~'illg
Dl'ng M~lld~fOI'~' Minimum Pl"n~I~' 'Vho 'Yl"re Rl"lil"nd of fhl" Pl"n~h~'
Fisc~1 \{>~I' 2010

~

20.)

19.1
80.0
____ BA_

60.0
16.7

-------------- 16.6-11.1

14.0
18.0

~o.o

10.0

"" ."

"-hit.

Rlad' Hhpanir Other

u.s.

1\'011-

Citizen Citizell

The rate at which offenders received relief from the mandatory minimum through these
provisions varied by race, gender, and citizenship.677 For example, Other Race offenders
qualified for some form of relief from a mandatory minimum penalty most often, with 68.2%
(n=90) obtaining relief, either through operation of the safety valve or by providing substantial
assistance to the government, or a combination of both. Black offenders qualified for relief from
mandatory minimum penalties least often, in only 49.4 percent (n=39) of cases in which they
were convicted of an offense carrying such a penalty. See Figure 8-38.
The manner in which relief from a mandatory minimum penalty was obtained also varied
by the race and citizenship of the offender. Hispanic offenders most often received such relief
through operation of the safety valve provision, alone or in conjunction with providing
substantial assistance (41.9%, n=618), followed by Other Race offenders at 40.1 percent (n=53)
and White offenders at 32.6 percent (n=580). Conversely, Black offenders qualified for safety
677

Figure 8-38 (Percent of Methamphetamine Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty Who Were Relieved of the Penalty (Fiscal Year 2010)) shows the breakdown by categories. For
purposes of this report, the rates at which offenders received safety valve relief reflect both cases in which such
relief was given alone and those in which it was given after the offender’s substantial assistance to the government.

228

valve relief in 26.0 percent (n=20) of the cases, either alone or in conjunction with providing
substantial assistance to the government.
Other Race offenders also received relief by providing substantial assistance to the
government, alone or in a combination with the safety valve, at the highest rate (47.7%, n=63).
Notably, Black offenders received relief by providing substantial assistance at a rate of 39.0
percent (n=30), the highest rate at which Black offenders received such relief for any major drug
type.
Almost three-quarters of all female methamphetamine offenders (73.4%, n=460) received
relief from the mandatory minimum penalty compared to slightly more than half (54.6%,
n=1,550) of male methamphetamine offenders. See Figure 8-38. Female offenders received
relief through operation of the safety valve678 at a higher rate (51.6%, n=323), and received relief
by providing substantial assistance679 at a higher rate (42.1%, n=264), compared to male
offenders (33.5%, n=951 and 28.8%, n=818, respectively).680
Non-citizen methamphetamine offenders most often received relief from mandatory
minimum penalties through operation of the safety valve provision, alone or in conjunction with
providing substantial assistance. The safety valve applied in 53.2 percent (n=626) of
methamphetamine cases involving a non-citizen convicted of an offense carrying a mandatory
minimum penalty. The rate in such cases involving a United States citizen was 28.3 percent
(n=648). See Figure 8-38.
In contrast, United States citizen offenders in methamphetamine cases obtained relief by
providing substantial assistance to the government, by itself or in conjunction with safety valve
relief, more often than non-citizen offenders in such cases. United States citizen
methamphetamine offenders received relief from the mandatory minimum in 37.0 percent
(n=847) of all cases while non-citizen methamphetamine offenders obtained relief in this manner
in only 20.0 percent (n=235) of the cases in which they were the offender.
5.

Sentencing Outcomes
a.

Average sentence length

The average sentence for methamphetamine offenders who remained subject to a
mandatory minimum penalty at the time of sentencing (i.e., who did not receive any form of
statutory relief) was 144 months, which is the highest average sentence for any drug type.681 In
678

This percentage includes safety valve relief either alone, or in conjunction with substantial assistance.

679

This percentage includes substantial assistance relief either alone, or in conjunction with safety valve.

680

These rates combine offenders receiving each form of relief alone, with offenders who received both forms of
relief.
681

USSG §2D1.1 has several specific offense characteristics applicable only to methamphetamine offenses
resulting in an increase in the applicable offense level. See USSG §2D1.1(b)(5), (13).

229

contrast, the average sentence for methamphetamine offenders who obtained relief from a
mandatory minimum penalty was 72 months.
The different forms of relief received by methamphetamine offenders affected the
average sentence. Methamphetamine offenders who qualified for the safety valve and who also
provided the government with substantial assistance had the lowest average sentence at 41
months. The average sentence imposed on methamphetamine offenders who provided
substantial assistance to the government was 99 months. This average sentence was slightly
higher than the average sentence of 90 months for all drug offenders who provided substantial
assistance.
The average sentence imposed on methamphetamine offenders who received relief from
a mandatory minimum through application of the safety valve provision was 62 months. This
average sentence was slightly higher than the average sentence for all drug offenders who
received safety valve relief (49 months).
Offenses involving methamphetamine had a different criminal history category pattern
than other major drug types. White offenders are the majority of offenders in every criminal
history category, except Criminal History Category I. The proportion of offenders in each
criminal history category who are White also increases with the criminal history category.
Conversely, the proportion of offenders in each criminal history category who are Hispanic
decreases with the criminal history category. The proportion of offenders in each criminal
history category who are Black is relatively small, which is largely due to the fact that Black
offenders are rarely convicted of methamphetamine offenses.682
In a pattern different than other major drug types, Black methamphetamine offenders
convicted of an offense carrying a mandatory minimum penalty and subject to the mandatory
minimum at sentencing had the lowest sentences, on average, of any racial group (131
months).683 Other Race methamphetamine offenders had the highest average sentence of 152
months, followed by Hispanic methamphetamine offenders (145 months) and White
methamphetamine offenders (143 months). However, when the Commission examined average
sentences by race for the methamphetamine offenders who were relieved of the mandatory
minimum penalty at sentencing, Black offenders had the highest average sentences (76 months),
followed by Hispanic methamphetamine offenders (75 months), and White methamphetamine
offenders (70 months). Other Race methamphetamine offenders had the lowest average
sentences (61 months).684

682

See Figure D-36 (Race of Methamphetamine Offenders Convicted of an Offense Carrying a Drug Mandatory
Minimum Penalty by Criminal History Category (Fiscal Year 2010)) in Appendix D of this Report.

683

See Figure D-44 (Average Sentence Length by Race Of Methamphetamine Offenders Convicted of an Offense
Carrying a Drug Mandatory Minimum Penalty (Fiscal Year 2010)) in Appendix D of this Report.
684

Id.

230

b.

Position relative to the guideline range

Table 8-15 compares the position of the sentence imposed relative to the guideline range
among methamphetamine offenders generally, methamphetamine offenders convicted of an
offense carrying a mandatory minimum penalty, methamphetamine offenders convicted of an
offense carrying a mandatory minimum penalty and relieved of application of the mandatory
minimum penalty, and then methamphetamine offenders who remained subject to the mandatory
minimum penalty at the time of sentencing because they did not qualify for any form of statutory
relief. Less than 40 percent (38.3%, n=1,328) of all methamphetamine offenders convicted of an
offense carrying a mandatory minimum penalty were sentenced within the applicable guideline
range. Approximately one-third (31.2%, n=1,082) of methamphetamine offenders convicted of
an offense carrying a mandatory minimum penalty received a substantial assistance departure.
Methamphetamine offenders convicted of an offense carrying a mandatory minimum penalty
received a non-government sponsored below range sentence in 18.2 percent (n=629) of the cases.
Table 8-15
Sentence Relative to the Guideline Range of Methamphetamine Offenders
Fiscal Year 2010

All
Offenders
Total (# of offenders)

Convicted of a
Statute Carrying
a Mandatory
Minimum
Penalty

4,169

Relieved of
Application of
Mandatory
Minimum
Penalty

3,466

Subject to
Mandatory
Minimum
Penalty
at Sentencing

2,010

1,456

Sentence Relative to the Guideline Range (Percent)
Within Range

40.6

38.3

20.4

63.0

Above Range

0.8

0.8

0.4

1.3

Substantial Assistance '5K1.1

28.8

31.2

53.8

0.0

Other Government Sponsored
(no '5K1.1)

10.7

11.6

11.7

11.3

Other Below Range

19.0

18.2

13.7

24.3

Figures 8-39 and 8-40 show the impact on sentences from substantial assistance
departures and from other below range sentences. These figures display the average guideline
range minimum and the average sentence imposed for methamphetamine offenses for offenders
sentenced from fiscal year 1992 to 2010. As the figures demonstrate, although the average
sentences imposed were below the guideline range in each year, they remained above five years.

231

Figure 8-39
Awrage Guideline Minimum and Average Sentence fOI' Offenders Convicted of an
Offense CalT)'ing a Drug Mandatol')' 'linimum Penalf)'
Subst.'mtial Assistance
Methamphetamine Offenders
Fiscal Yeal's 1992 - 2010
~Guideli.ne Minimum

lonths

....Sentence

,
\
\...

-............ ....

---SOURCE:

--.

.....

-- -

u.s. SEmecciDg Co!lll!li5sion 1992 tIJroogh 2010 D:ltalil., U

--

/

-

--

.....-

~

SCFYI992 - USSCFY2010.

Figure 8-40
A"erage Guideline Minimum and Average Sentence fOl' Offenders Convicted of an
Offense CalTying a Drug Mandatol')' lVIinimum Penalty
Non-Substantial Assistance Below Range Sentence
Methamphetamine Offenders
Fiscal Years 1992 - 2010

240

220
200

100
80
60

-Sentence

----..

..........

180
160
140
120

-Guideline Minimum

Months

..-

\.
\

.....

---...
"'

.........

V

.---

....

~

....

-.-

....

... -- -- .......
.... -'

-/

~

40

20

o

SOURCE:

u.s. SEoIalcing Co!lJl!lission 1992 through 2010 D:>talil., USSO'YI992- USSCFY2010.

In fiscal year 2010, the average extent of substantial assistance departures in
methamphetamine cases was 45.2 percent (66 months) from the bottom of the otherwise
applicable guideline range. In fiscal year 2010, the average extent of non-government sponsored
232

below range sentences (i.e., departures and variances combined) in methamphetamine cases was
26.1 percent (32 months) from the bottom of the otherwise applicable guideline range.
6.

Prison Impact

At the end of fiscal year 2010, 12.0 percent of all offenders in BOP custody (n= 22,935 of
191,757 offenders) were methamphetamine offenders. At the end of 1995, only 3.9 percent of
the federal prison population were methamphetamine offenders (n= 2,787 of 71,972 offenders).
The number of methamphetamine offenders has increased each year since 1995.
The percentage of methamphetamine offenders convicted of an offense carrying a
mandatory minimum penalty has also increased from 76.4 percent (n=2,129) in 1995 to the
current rate of 88.2 percent (n=20,233) in 2010. The percentage of methamphetamine offenders
in BOP custody who remained subject to the mandatory minimum penalty at sentencing has
increased slightly from 47.0 percent (n=1,311) in 1995 to 49.6 percent (n=11,386) in 2010.685
7.

Offender Function

The majority of methamphetamine offenders served in functions that were at least as or
more culpable than Supervisor (56.3%). Wholesaler was the most common function (38.5%).686
For methamphetamine offenses, more than half of offenders in every function category were
convicted of an offense carrying a mandatory minimum penalty.687 Supervisor and Mule were
convicted of statutes carrying a mandatory minimum penalty in all cases. Other functions,
particularly High-Level Supplier/Importer (94.4%), Organizer/Leader (89.5%), and Courier
(86.8%), were convicted of statutes carrying mandatory minimum penalties at consistently high
rates as well. See Figure 8-41.

685

See Figure D-45 (Percentage of Offenders in Prison Not Convicted of an Offense Carrying a Mandatory
Minimum, Convicted of an Offense Carrying a Mandatory Minimum Penalty and Subject to a Mandatory Minimum
Penalty at Sentencing - Methamphetamine Offenders (1995–2010)) in Appendix D of this Report.

686

See Figure D-46 (Distribution of Offender Function by Primary Drug Type Methamphetamine Offenders (Fiscal
Year 2009 Sample Data)) in Appendix D of this Report.

687

As noted earlier, terms used to describe offender function in this analysis do not necessarily correlate with
guideline definitions of similar terms. For example, the determination of offender function was made without regard
to whether USSG §2D1.1(b)(4) applied.

233

Figul'l" 8-41
Pel'cl"llI of Offeudl"l's COmiCfl"d of au Orrl"ll~l" Cal'l'~'ing a
Dl'ng :\lafldatol'~' :\Iiuimum Pl"nalt~· aud Subjl"ct 10 a :\Iandatol~' iUinimmn
b~' Offeudl"l' Fuuction aud Pl'imal~' Dl'ug T~'pl"
:\Il"Ihamphetamiul" Offl"udl"l':S
Fi~cal Yl"al' 2009 Sampll" Data
100.0

,

• Comi('{fi!

flUIU

Pl"lml~'

• Snbjf('{ U{l'], R1'61'f

'lif'
-----------------

80.0

----

.

...

~.

"

40.0

".

----

1

T

10.0

,.,

.-

"

"[

'03

.,

p"

0""
>a,me•. u.,. _

~_

>009_ """""

For all major drug types, higher-level function offenders as a group generally received
relief based on substantial assistance at higher rates than lower-level function offenders. In
methamphetamine cases, however, it appears that function did not play as critical a role in
determining the rate of substantial assistance relief as most functions received such relief in
approximately one-third to half of the cases. Mid-level methamphetamine functions, Manager
and Supervisor, received substantial assistance relief at the highest rates for that drug type
(66.7% and 100%, respectively). See Figure 8-42.

234

Figun' 8-41
Pl"l'ceut of Offl"udel's Cou\'ictl"d of all Offl"nsl" Cal'l)ing a Dl'ug iUandatol)' i\Iiuimum Peual!)'
\Vbo \Vel'l" Rl"lil"wd of the Pl"nalt~· B~' Offl"ndl"l' Functiou
:\Il"Ihamphetamiul" Offeudl"l's
Fiscal Yl"al' 1009 SamJlll" Data

"'''''''i''''--..--

100.0 I

80.0

100
40.0

10.0

0.'

,.<

,j"

"
W<JJ:<:E,

",

" . . . .'

.'~

",'

0

"

",

,I?

~,<>o

(j

u,.,_~

,,.'.'" ;.'

:,,<f><

,0

",

." ."

;v

s.'<

,.-

C,·

>OOO_"""'"

Finally, in methamphetamine offenses, low-level function offenders obtained relief at
high rates. Methamphetamine offenders who performed functions lower than Street-Level
Dealer obtained relief in at least 72.2 percent of the cases (Broker). Among all function
categories in methamphetamine cases, Grower/Manufacturer offenders obtained relief from
mandatory minimums at the lowest rate (40.0%). Although Wholesaler offenders obtained relief
in 56.7 percent of the cases, High-Level Supplier/Importer offenders and Street-Level Dealer
offenders obtained relief at approximately the same rate (41.2% and 41.5%, respectively) despite
any differences in their function. See Figure 8-42.
8.

Summary

With respect to mandatory minimum penalties for methamphetamine offenses,
Commission analyses demonstrate the following:
Offenses and Offenders
•

In fiscal year 2010, 17.4 percent (n= 4,169) of drug offenders committed an offense
involving methamphetamine. The majority of methamphetamine offenders (83.1%,
n=3,466) were convicted of an offense carrying a mandatory minimum penalty, the
highest rate of any drug type.

•

More than half (51.3%) of methamphetamine offenders convicted of an offense carrying
a mandatory minimum penalty were White and 42.6 percent were Hispanic, followed by
Other Race (3.8%) and Black (2.2%) offenders.
235

•

Female offenders accounted for 18.1 percent (n=627) of all the methamphetamine
offenders convicted of an offense carrying a mandatory minimum penalty. Although this
is not a large percentage, it is higher than both the proportion of female offenders in the
overall population of drug offenders convicted of an offense carrying a mandatory
minimum penalty (10.2%, n=1,611) and the proportion of female offenders convicted of
an offense carrying a mandatory minimum penalty for any other drug type.

•

Almost two-thirds of methamphetamine offenders convicted of an offense carrying a
mandatory minimum penalty (66.1%) were United States citizens.

•

Eight of the 94 judicial districts reported 100 or more methamphetamine offenders
convicted of an offense carrying a mandatory minimum penalty in fiscal year 2010.

•

Wholesaler was the most common function (38.5%) in methamphetamine offenses.

Application and Relief
•

In fiscal year 2010, 96.9 percent (n=3,358) of methamphetamine offenders convicted of
an offense carrying a mandatory minimum penalty pled guilty while 3.1 percent (n=108)
proceeded to trial. By comparison, 97.7 percent (n=682) of methamphetamine offenders
in cases without mandatory minimum penalties in fiscal year 2010 pled guilty while 2.3
percent (n=16) were convicted after trial.

•

In fiscal year 2010, more than half (58.0%) of methamphetamine offenders convicted of
an offense carrying a mandatory minimum penalty received relief from the mandatory
minimum penalty.

•

Less than 40 percent (38.3%) of all methamphetamine offenders convicted of an offense
carrying a mandatory minimum penalty were sentenced within the applicable guideline
range.
o Approximately one-third (31.2%) of methamphetamine offenders convicted of an

offense carrying a mandatory minimum penalty received a substantial assistance
departure.
o

•

Methamphetamine offenders convicted of an offense carrying a mandatory
minimum penalty received a non-government sponsored below range sentence in
18.2 percent of the cases.

Other Race methamphetamine offenders qualified for some form of relief from a
mandatory minimum penalty most often, in 68.2 percent of their offenses carrying such a
penalty, followed by White (59.4%) and Hispanic (55.9%) offenders. Black offenders
qualified for relief from mandatory minimum penalties least often, in 49.4 percent of the
cases in which they were convicted of an offense carrying such a penalty.

236

•

•

o

Other Race offenders received substantial assistance relief alone from a
mandatory minimum penalty most often, in 28.0 percent of their offenses carrying
such a penalty, followed by White (26.7%) and Black (23.4%) offenders.
Hispanic offenders received relief from mandatory minimum penalties through
substantial assistance the least often, in 14.0 percent of their cases.

o

Hispanic offenders received safety valve relief alone most often, in 32.8 percent
of their cases, followed by White (22.9%) and Other Race (20.4%) offenders.
Black offenders received relief from mandatory minimum penalties through the
safety valve the least often, in 10.4 percent of their cases.

o

Other Race offenders received relief from a mandatory minimum penalty through
a combination of substantial assistance and safety valve relief most often, in 19.7
percent of their cases, followed by Black (15.6%), White (9.7%), and Hispanic
(9.1%) offenders.

Almost three-quarters of all female methamphetamine offenders (73.4%, n=460) received
relief from the mandatory minimum penalty compared to more than half (54.6%,
n=1,550) of male methamphetamine offenders.
o

Female offenders received substantial assistance relief alone from a mandatory
minimum penalty more often, in 21.8 percent of their cases, compared to male
offenders (21.1%).

o

Female offenders received safety valve relief alone more often, in 31.3 percent of
their cases, compared to male offenders (25.8%).

o

Female offenders also received relief from a mandatory minimum penalty through
a combination of substantial assistance and safety valve relief more often, in 20.3
percent of their cases, compared to 7.7 percent of cases involving male offenders.

Non-citizen methamphetamine offenders received relief from the mandatory minimum
penalty at a higher rate (64.1%, n=754) than United States citizen methamphetamine
offenders (54.8%, n=1,256).
o

United States citizen methamphetamine offenders received substantial assistance
relief alone from a mandatory minimum penalty more often in 26.6 percent of
their cases, compared to non-citizen offenders (10.9%).

o

Non-citizen offenders received safety valve relief alone more often, in 44.1
percent of their cases, compared to United States citizen offenders (17.9%).

o

United States citizen offenders received relief from a mandatory minimum
penalty through a combination of substantial assistance and safety valve relief
more often, in 10.4 percent of their cases, compared to 9.1 percent of cases
involving non-citizens.
237

•

In fiscal year 2010, the average extent of substantial assistance departures in
methamphetamine cases was 45.2 percent (66 months) from the bottom of the otherwise
applicable guideline range.

•

In fiscal year 2010, the average extent of non-government sponsored below range
sentences in methamphetamine cases was 26.1 percent (32 months) from the bottom of
the otherwise applicable guideline range.

Sentencing
•

In fiscal year 2010, 42.0 percent of methamphetamine offenders convicted of an offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing.

•

In fiscal year 2010, the rate at which methamphetamine offenders convicted of an offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing varied by race, gender and citizenship.

•

o

Black offenders were subject to the mandatory minimum penalty at sentencing
most often, in 50.6 percent of their offenses carrying such a penalty, followed by
Hispanic (44.1%) and White (40.6%) offenders. Other Race offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 31.8
percent of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (45.4% of their cases, compared to 26.6% of
cases involving female offenders).

o

United States citizen offenders were subject to the mandatory minimum penalty
at sentencing more often than non-citizen offenders (45.2% of their cases,
compared to 35.9% of cases involving non-citizen offenders).

The average sentence for methamphetamine offenders who remained subject to a
mandatory minimum penalty at the time of sentencing (i.e., who did not receive any form
of statutory relief) was 144 months. The average sentence for methamphetamine
offenders who obtained relief from a mandatory minimum penalty was 72 months.
o

In a pattern different than other major drug types, Black methamphetamine
offenders who were subject to a mandatory minimum penalty at sentencing had
the lowest sentences, on average, of any racial group (131 months), compared to
Other Race offenders (152 months), Hispanic offenders (145 months), and White
offenders (143 months).

238

Prison Impact
•

H.

At the end of fiscal year 2010, 12.0 percent of all offenders in the custody of the Bureau
of Prison were methamphetamine offenders.
HEROIN OFFENSES

In fiscal year 2010, 1,561 (6.5%) of the 23,964 drug offenders committed an offense
involving heroin. The majority of those heroin offenders (70.3%, n=1,098) were convicted of an
offense carrying a mandatory minimum penalty. Less than one-third of the heroin offenders
convicted of an offense carrying a mandatory minimum penalty (30.7%, n=480) remained
subject to the mandatory minimum at sentencing. See Table 8-16.
1.

Demographic Characteristics of Heroin Offenders

Heroin offenders exhibit a demographic composition that is similar to powder cocaine
offenders. Table 8-16 presents information on the demographic characteristics of heroin
offenders generally. This information is then compared to that for heroin offenders convicted of
an offense carrying a mandatory minimum penalty, heroin offenders convicted of an offense
carrying a mandatory minimum penalty and relieved of application of the mandatory minimum
penalty, and to those heroin offenders who remained subject to the mandatory minimum at the
time of sentencing because they did not qualify for any form of statutory relief.

239

Table 8-16
Demographic Characteristics of Heroin Offenders
Fiscal Year 2010
Convicted of a
Statute Carrying a
Mandatory Minimum
Penalty

All
Offenders
Total (# of offenders)

1,561

Relieved of
Application of
Mandatory
Minimum
Penalty

1,098

Subject to
Mandatory
Minimum Penalty
at Sentencing

618

480

Race of Offender (Percent)
White

15.9

14.1

15.7

12.1

Black

27.5

23.4

13.7

35.8

Hispanic

55.6

61.3

68.8

51.7

1.0

1.2

1.8

0.4

Other

Citizenship of Offender (Percent)
United States Citizen

66.5

59.5

45.5

77.7

Non-U.S. Citizen

33.5

40.5

54.5

22.3

Gender of Offender (Percent)
Male

86.4

88.0

86.2

90.2

Female

13.6

12.0

13.8

9.8

Slightly more than half of heroin offenders convicted of an offense carrying a mandatory
minimum penalty were Hispanic (61.3%, n=672) and about one-quarter (23.4%, n=256) were
Black. These percentages shift slightly when examining heroin offenders subject to the mandatory
minimum penalty at sentencing. Approximately half of heroin offenders subject to the mandatory
minimum penalty at sentencing were Hispanic (51.7%, n=247) and about one-third (35.8%,
n=171) were Black. The shift is primarily attributable to criminal history differences between the
two. The proportion of offenders in each criminal history category who were Black increased with
the criminal history category. Conversely, the proportion of offenders in each criminal history
category who were Hispanic decreased with the increased criminal history category.688
Table 8-17 displays information about offense characteristics and criminal history
category of heroin offenders generally. This information is then compared to that for heroin
offenders convicted of an offense carrying a mandatory minimum penalty, heroin offenders
convicted of an offense carrying a mandatory minimum penalty and relieved of application of the
mandatory minimum penalty, and to those heroin offenders who remained subject to the

688

See Figure D-48 (Race of Heroin Offenders Convicted of an Offense Carrying a Drug Mandatory Minimum
Penalty by Criminal History Category (Fiscal Year 2010)) in Appendix D of this Report.

240

mandatory minimum at the time of sentencing because they did not qualify for any form of
statutory relief.
Table 8-17
Guideline Sentencing Characteristics, Role in the Offense, and
Criminal History of Heroin Offenders
Fiscal Year 2010
Subject to
Mandatory
Minimum
Penalty
at Sentencing

All
Offenders

Convicted of a
Statute Carrying
a Mandatory
Minimum Penalty

Relieved of
Application
of Mandatory
Minimum
Penalty

1,561

1,098

618

480

Total (# of offenders)

Characteristics (Percent)
Weapon Specific Offense Characteristic

8.0

7.3

3.1

12.7

Firearms Mandatory Minimum Applied

3.8

5.4

1.9

9.8

37.3

42.4

75.4

0.0

7.3

9.1

4.1

15.6

21.5

21.4

33.7

5.6

Safety Valve Reduction

Role in the Offense (Percent)
Aggravating Role
Mitigating Role

Criminal History Category (Percent)
I

54.5

60.0

79.4

35.0

II

9.2

9.6

5.2

15.4

III

13.4

12.6

6.6

20.2

IV

5.8

4.4

2.1

7.3

V

3.9

4.1

1.5

7.5

VI

13.1

9.3

5.2

14.6

2.

Guilty Pleas and Trials

As observed for other drug types, heroin offenders convicted of an offense carrying a
mandatory minimum penalty went to trial at about the same rate as all drug offenders convicted
of an offense carrying such a penalty. In fiscal year 2010, 96.1 percent (n=1,055) of heroin
offenders convicted of an offense carrying a mandatory minimum penalty pled guilty while 3.9
percent (n=43) proceeded to trial. As discussed above, drug offenders convicted of such statutes
pled guilty 95.5 percent of the time. In comparison, 98.0 percent (n=452) of heroin offenders in

241

cases without mandatory minimum penalties in fiscal year 2010 pled guilty while 2.0 percent
(n=9) were convicted after trial.
3.

Geographic Variations

The 94 judicial districts varied significantly in the number of heroin cases reported to the
Commission in fiscal year 2010. As a result, the number of heroin offenders in each district
convicted of an offense carrying a mandatory minimum penalty also varied. Six districts
reported 50 or more heroin offenders convicted of an offense carrying a mandatory minimum
penalty in fiscal year 2010: Southern New York (n=95, 7.1% of the overall criminal caseload in
the district), Eastern New York (n=83, 7.6%), Southern Florida (n=81, 3.7%), Puerto Rico
(n=61, 7.8%), Southern California (n=52, 1.7%), and Western Texas (n=51, 0.8%). See Figure
8-43.
Figure 8-43
:"Iumbt'1' ofHt'I'oill Offt'mlt'l's COll\'ictNl of ~Il Offt'ust' Cal'l)illg a
Drug l\lalld~tol'~' ::\Iillimlllil Pt'u~lt~· b~' District
Fiscal \e~1' 2010

<f\~.

_ ~."C>
..._

. , ""*-

c::::J"" e-...

c::::J, ••

c::::J ,. '" ..

W<mCE. U.,. _ . . . -...... >'"0"'"''''' ""cr.,.,o

As a percentage of the overall caseload, heroin offenders convicted of an offense carrying
a mandatory minimum penalty were most common in the District of Rhode Island, where 12.7
percent of the criminal caseload (n=20 of 157 offenders) involved this type of case, as well as the
District of Puerto Rico (7.8%, n=61 of the 780 offenders) and the Eastern District of New York
(7.6%, n=83 of 1,100 offenders).
4.

Relief from the Mandatory Minimum Penalty

In fiscal year 2010, slightly more than half (56.3%, n=618) of heroin offenders convicted
of an offense carrying a mandatory minimum penalty received relief from the mandatory
242

minimum penalty. Of those, almost one-third (31.2%, n=343) of the heroin offenders received
relief through operation of the safety valve alone. Heroin offenders who did not qualify for the
safety valve, but who received relief for providing substantial assistance to the government,
accounted for 13.8 percent (n=152) of all heroin offenders convicted of an offense carrying a
mandatory minimum penalty. A smaller percentage (11.2%, n= 123) of heroin offenders
received relief from the mandatory minimum penalty by qualifying for application of both the
safety valve and substantial assistance provisions. See Figure 8-44.
Figure 8-44
Pl"!'Cl"llI of Hl"!'oin Offl"ndl"l's COll\icll"d of an Orrl"ll~l" Cal'l'~'illg a
Drng l\'landaIOl'~' Minimum Pl"nal~' \Ybo \Yl"re Rl"lil"nd offill" Pl"nah~'
Fi~cal \loa!' 2010

POI'rom
100.0

n::-:r----,~'"

SU.O

6U.0

~U.O

1U.0

•••

"'hit<

Blo<k Hi",nx O'h....

u.s.

:SOD_

Citiz<D Ciriz••

As noted for other major drug types, the rate at which offenders received relief from the
mandatory minimum penalty through these provisions varied by race, gender, and citizenship.
The variations noted for heroin are similar to those noted for drugs in general. Black heroin
offenders remained subject to the mandatory minimum penalty at sentencing at the highest rate
of all races (66.8%, n=171), as they did in the overall drug population.
Female heroin offenders obtained relief from the mandatory minimum penalty more often
than male heroin offenders (64.4%, n=85 compared with 55.2%, n=533). More than half of all
female heroin offenders (53.1%, n=70) received relief from the mandatory minimum penalty
pursuant to operation of the safety valve, compared with slightly more than one-third (41.0%,
n=396) of male offenders. A similar pattern was observed in the overall drug population
(compare female drug offenders at 54.7%, n=882 to male drug offenders at 32.9%, n=4,675).
Heroin offenders who were non-citizens also obtained relief from the mandatory
minimum penalty at a higher rate (75.9%, n=337) than heroin offenders who were United States
citizens (43.0%, n=281). As discussed above, among the overall drug offender population, noncitizens also obtained relief from the mandatory minimum penalty at a higher rate than their
United States citizen counterparts.
243

5.

Sentencing Outcomes
a.

Average sentence length

The average sentence for heroin offenders who remained subject to a mandatory
minimum penalty at the time of sentencing (i.e., who did not receive any form of statutory relief)
was 119 months, compared to 51 months for heroin offenders who obtained relief from a
mandatory minimum penalty.
As was the case with the overall drug mandatory minimum population, the different
forms of relief received by heroin offenders affected the applicable average sentence. Heroin
offenders who qualified for the safety valve and who also provided the government with
substantial assistance had the lowest average sentence at 28 months. The average sentence
imposed on heroin offenders who provided substantial assistance to the government was 75
months. This average sentence was slightly lower than the average sentence of 90 months for all
drug offenders who provided substantial assistance.
The average sentence imposed on heroin offenders who received relief from a mandatory
minimum through application of the safety valve provision was 49 months. This average
sentence was the same as the average sentence for all drug offenders who received safety valve
relief.
b.

Position relative to the guideline range

Table 8-18 compares the position of sentences relative to the guideline range among
heroin offenders, heroin offenders convicted of an offense carrying a mandatory minimum
penalty, heroin offenders convicted of an offense carrying a mandatory minimum penalty and
relieved of application of the mandatory minimum penalty, and then heroin offenders who
remained subject to the mandatory minimum at the time of sentencing because they did not
qualify for any form of statutory relief. Approximately one-quarter (23.3%, n=112) of heroin
offenders subject to the mandatory minimum penalty at sentencing received a non-government
sponsored below range sentence.

244

Table 8-18
Sentence Relative to the Guideline Range of Heroin Offenders
Fiscal Year 2010

Total (# of offenders)

All
Offenders

Convicted of a
Statute Carrying
a Mandatory
Minimum
Penalty

Relieved of
Application of
Mandatory
Minimum Penalty

1,561

1,098

618

480

Subject to
Mandatory
Minimum
Penalty
at Sentencing

Sentence Relative to the Guideline Range
Within Range

44.6

44.9

25.6

69.8

Above Range

1.5

0.6

0.2

1.0

Substantial Assistance '5K1.1

21.9

25.0

44.5

0.0

Other Government Sponsored
(no '5K1.1)

5.9

5.8

5.6

5.8

26.1

23.8

24.1

23.3

Other Below Range

Figures 8-45 and 8-46 show the impact on sentences from substantial assistance
departures and from other below range sentences. These figures display the average guideline
range minimum and the average sentence imposed for heroin offenses for offenders sentenced
from fiscal year 1992 to 2010.

245

Figlll'l" 8-45
Awragl" Guidl"linl" i\Iinimmn and AWl'agl" Sl"lltl"ncl" fol' Offl"lldl"l's COllvictl"d of au
Offl"llsl" Cal'l}illg a Drug i\Iandatol}' i\Iiuimum Penah~'
SlIbsta llIial Assistancl"
Heroin Offendl"l's
Fiscal Yeal's 1992 - 2010
~40

?>Iomb.,

~,~o

'""
""
""
,,"
'""
'"
'"
'"
'"
I~O

Figlll'l" 8-46
AWl'agl" Guidl"linl" i\Iinimmn and Awragl" Sl"lltl"ncl" fol' Offl"lldl"l's COllvictl"d of an
Offl"llsl" CaI'l}illg a Drug i\Iandatol}' i\Iinimum Penah~'
i\"on-Substantial Assistancl" Bl"low R.1llgl" Sellll"llCl"
Heroin Offendl"l's
Fiscal Yeal's 1992 - 2010
~40

MOllcb'

_Cnid,lillt Millillmm

_Semon...o

'""
""
""
,,"
'"'""
I~O

00

'"
'"
"~~~~~~~~~~~~~~~~~~~
some•. u"" .-... c_ _ ,m _

""0 DDfilo,

usscrY'''' _l1SSCYY'2O'.

Figure 8-45 shows that in cases where the offender received relief from a mandatory
minimum penalty as the result of providing substantial assistance to the government, the average
sentence imposed was below five years until fiscal year 2005, even though the average guideline
246

minimum sentence was well above that level. A similar trend can also be observed on Figure 846 for other below range sentences.
In fiscal year 2010, the average extent of substantial assistance departures in heroin cases
was 52.8 percent (61 months) from the bottom of the otherwise applicable guideline range. In
fiscal year 2010, the average extent of non-government sponsored below range sentences (i.e.,
departures and variances combined) in heroin cases was 31.3 percent (27 months) from the
bottom of the otherwise applicable guideline range.
6.

Prison Impact

At the end of fiscal year 2010, 3.0 percent (n=5,817 of 191,757 offenders) of offenders in
the custody of the Bureau of Prisons were heroin offenders. At the end of fiscal year 1995,
heroin offenders were 5.2 percent of the federal prison population (n=3,767 of 71,972 offenders).
The number of heroin offenders has continued to increase each year through the end of fiscal
year 2010, However, the proportion of these offenders among the overall offender population
has decreased.
The percentage of heroin offenders convicted of an offense carrying a mandatory
minimum penalty has also increased slightly from 71.1 percent (n=2,677) in 1995 to a high of
80.2 percent (n=4,010) in 1998, to the current rate of 78.6 percent (n=4,570) in 2010. The
percentage of heroin offenders in BOP custody who remained subject to the mandatory
minimum penalty at sentencing has decreased slightly from 52.7 percent (n=1,987) in 1995 to
49.1 percent (n=2,854) in 2010.689
7.

Offender Function

The majority of heroin offenders (52.9%) served in functions that are less culpable than
Supervisor. The most common function for heroin offenses was Street-Level Dealer (21.4%).690
Manager (100.0%), Supervisor (100.0%), and High-Level Supplier/Importer (95.5%)
were convicted of statutes carrying mandatory minimum penalties at consistently high rates in
heroin cases. See Figure 8-47. Low-level function offenders in heroin offenses obtained relief
from mandatory minimums at high rates. Mid-level function offenders were subject to
mandatory minimum penalties at higher rates than higher-level function offenders.

689

See Figure D-57 (Percentage of Offenders in Prison Not Convicted of an Offense Carrying a Mandatory
Minimum, Convicted of an Offense Carrying a Mandatory Minimum Penalty and Subject to a Mandatory Minimum
Penalty at Sentencing - Heroin Offenders (1995–2010)) in Appendix D of this Report.

690

See Figure D-58 (Distribution of Offender Function by Primary Drug Type Heroin Offenders (Fiscal Year 2009
Sample Data)) in Appendix D of this Report.

247

Figure 8-47
Pen'ent of Offenders Convicted of au Offense Cal'l~'ing a
Drug i'lIaudaIOI)' Miuimum Peuah~' and Subject to :\landatol~' i'lIinimmn
b~' Offender Functiou and Ptimar~' Drug Tnle
Heroin Offenders
Fiscal Year 1009 Sample Dala
100,0

80,0

r

.Comiclf'd

P"'U1l1

lilt

!O,O

.SUbjKI Ur." R.litf
l

,e

00.'
~o,o

Penal~'

.

".

,0.1

-----

~-----~-.~--

••

I'j

@:l

'~

••

~

>a"FC'. U.,. _~...... >000_ """'"

Heroin offenders who performed functions lower than Street-Level Dealer obtained relief
in at least 81.5 percent of the cases. Conversely, higher-level function offenders obtained relief
at lower rates in heroin cases than lower-level function offenders. High-Level Supplier/Importer
offenders obtained relief in only 47.6 percent of cases, a lower rate than both Wholesaler
(57.9%) and Street-Level Dealer (57.1%) offenders. See Figure 8-48.

248

Figure 8-48
Pel'ceut of Offenders COll\'icted of a n Offense Cal'l-ying a Drug :\Iandatol'y :\Iinimllln
\Vilo 'Vel'{' Reliewd of tile Penalt~· B~' Offendel' Function
Hel'oin Offenders
Fiscal YeaI' 2009 Sample Data

100.0

Penal~'

Pfl'COn!

80,0

40,0

~o,o

0.'

8.

Summary

With respect to mandatory minimum penalties for heroin offenses, Commission analyses
demonstrate the following:
Offenses and Offenders
•

In fiscal year 2010, 6.5 percent (n= 1,561) of drug offenders committed an offense
involving heroin. The majority of heroin offenders (70.3%, n=1,098) were convicted of
an offense carrying a mandatory minimum penalty.

•

More than half of heroin offenders convicted of an offense carrying a mandatory
minimum penalty were Hispanic (61.3%) and one-quarter (23.4%) were Black, followed
by White (14.1%) and Other Race (1.2%).

•

The majority of heroin offenders are male (86.4%).

•

Approximately two-thirds (66.5%) of heroin offenders are United States citizens.

•

Six districts reported 50 or more heroin offenders convicted of an offense carrying a
mandatory minimum penalty in fiscal year 2010.

•

As a percentage of the overall caseload, heroin offenders convicted of an offense carrying
a mandatory minimum penalty were most common in the District of Rhode Island, where
12.7 percent of the criminal caseload (n=20 of 157 offenders) involved this type of case,
249

as well as the District of Puerto Rico (7.8%, n=61 of the 780 offenders) and the Eastern
District of New York (7.6%, n=83 of 1,100 offenders).
•

The most common function for heroin offenses was Street-Level Dealer (21.4%).

Application and Relief
•

In fiscal year 2010, 96.1 percent (n=1,055) of heroin offenders convicted of an offense
carrying a mandatory minimum penalty pled guilty while 3.9 percent (n=43) proceeded to
trial. In comparison, 98.0 percent (n=452) of heroin offenders in cases without
mandatory minimum penalties in fiscal year 2010 pled guilty while 2.0 percent (n=9)
were convicted after trial.

•

In fiscal year 2010, more than half (56.3%) of heroin offenders convicted of an offense
carrying a mandatory minimum penalty received relief from the mandatory minimum
penalty.
o

o

Other Race offenders qualified for some form of relief from a mandatory
minimum penalty most often, in 84.6 percent of their offenses carrying such a
penalty, followed by Hispanic (63.2%) and White (62.6%) offenders. Black
offenders qualified for relief from mandatory minimum penalties least often, in
33.2 percent of the cases in which they were convicted of an offense carrying
such a penalty.


White offenders received substantial assistance relief alone from a
mandatory minimum penalty most often, in 18.1 percent of their offenses
carrying such a penalty, followed by Black (16.8%) and Other Race
(15.4%) offenders. Hispanic offenders received relief from mandatory
minimum penalties through substantial assistance the least often, in 11.8
percent of their cases.



Hispanic offenders received safety valve relief alone most often, in 39.0
percent of their cases, followed by Other Race (38.5%) and White (30.3%)
offenders. Black offenders received relief from mandatory minimum
penalties through the safety valve the least often, in 11.3 percent of their
cases.



Other Race offenders received relief from a mandatory minimum penalty
through a combination of substantial assistance and safety valve relief
most often, in 30.8 percent of their cases, followed by White (14.2%),
Hispanic (12.5%), and Black (5.1%) offenders.

Female heroin offenders obtained relief from the mandatory minimum penalty
more often than male heroin offenders (64.4% compared with 55.2%).

250

o

•



Male offenders received substantial assistance relief alone from a
mandatory minimum penalty more often, in 14.2 percent of their
cases, compared to female offenders (11.4%).



Female offenders received safety valve relief alone more often, in
36.4 percent of their cases, compared to male offenders (30.5%).



Female offenders also received relief from a mandatory minimum
penalty through a combination of substantial assistance and safety
valve relief more often in 16.7 percent of their cases, compared to
10.5 percent of cases involving male offenders.

Heroin offenders who were non-citizens obtained relief from the mandatory
minimum penalty at a higher rate (75.9%) than United States citizen offenders
(43.0%).


United States citizens received substantial assistance relief alone from a
mandatory minimum penalty more often in 17.8 percent of their cases,
compared to non-citizen offenders (8.1%).



Non-citizen offenders received safety valve relief alone more often, in
51.1 percent of their cases, compared to United States citizens (17.8%).



Non-citizen offenders also received relief from a mandatory minimum
penalty through a combination of substantial assistance and safety valve
relief more often, in 16.7 percent of their cases, compared to 7.5 percent of
cases involving United States citizens.

Less than half (44.9%) of all heroin offenders convicted of an offense carrying a
mandatory minimum penalty were sentenced within the applicable guideline range.
o

Approximately one-third (30.8%) of heroin offenders convicted of an offense
carrying a mandatory minimum penalty received a government sponsored below
range sentence.

o

Approximately one-quarter (23.3%) of heroin offenders subject to the mandatory
minimum penalty at sentencing received a non-government sponsored below
range sentence.

•

In fiscal year 2010, the average extent of substantial assistance departures in heroin cases
was 52.8 percent (61 months) from the bottom of the otherwise applicable guideline
range.

•

In fiscal year 2010, the average extent of non-government sponsored below range
sentences in heroin cases was 31.3 percent (27 months) from the bottom of the otherwise
applicable guideline range.
251

Sentencing
•

In fiscal year 2010, 43.7 percent of heroin offenders convicted of an offense carrying a
mandatory minimum penalty were subject to the mandatory minimum penalty at
sentencing.

•

In fiscal year 2010, the rate at which heroin offenders convicted of an offense carrying a
mandatory minimum penalty were subject to the mandatory minimum penalty at
sentencing varied by race, gender and citizenship.

•

o

Black offenders were subject to the mandatory minimum penalty at sentencing
most often, in 66.8 percent of their offenses carrying such a penalty, followed by
White (37.4%) and Hispanic (36.8%) offenders. Other Race offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 15.4
percent of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (44.8% of their cases, compared to 35.6% of
cases involving female offenders).

o

United States citizens were subject to the mandatory minimum penalty at
sentencing more often than non-citizen offenders (57.0% of their cases,
compared to 24.1% of cases involving non-citizen offenders).

The average sentence for heroin offenders who remained subject to a mandatory
minimum penalty at the time of sentencing (i.e., who did not receive any form of
statutory relief) was 119 months. The average sentence for heroin offenders who
obtained from a mandatory minimum penalty was 51 months.

Prison Impact
•

I.

At the end of fiscal year 2010, 3.0 percent of the offenders in the custody of the Bureau
of Prisons were heroin offenders.
SECTION 851 ANALYSIS
1.

Introduction

As discussed earlier in this chapter, the penalty structure for drug statutes increases an
applicable mandatory minimum penalty when a drug offender is convicted of a second or
subsequent felony drug offense.691 For example, 21 U.S.C. § 841 criminalizes possession of
691

The term “felony drug offense” is defined in 21 U.S.C. § 802(44) as “an offense that is punishable by
imprisonment for more than one year under any law of the United States or of a State or foreign country that
prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant
substances.”

252

controlled substances with the intent to distribute and sets penalties based upon the quantities of
the particular controlled substance involved in the offense. Section 841(b)(1)(A) sets a ten-year
mandatory minimum penalty for specified quantities of enumerated controlled substances and
increases that mandatory minimum penalty to 20 years of imprisonment if “any person commits
such a violation after a prior conviction for a felony drug offense has become final.”692 Section
841(b)(1)(A) increases the mandatory minimum penalty to life imprisonment for any person who
commits such a violation “after two or more prior convictions for a felony drug offense have
become final.”693 Section 841(b)(1)(B) involves lesser quantities of the controlled substances
covered by subsection (b)(1)(A) and doubles the mandatory minimum from five to 10 years of
imprisonment. 694
These increased penalties are not, however, automatically triggered upon conviction.
Rather, prosecutors must take affirmative steps prior to the offender’s conviction for these higher
penalties to apply. The mechanism by which prosecutors can seek enhanced penalties for drug
offenders who have prior convictions for felony drug offenses is set forth in 21 U.S.C. § 851
(Proceedings to establish prior convictions). Section 851 provides, in pertinent part, that “[n]o
person who stands convicted of an offense under this part shall be sentenced to increased
punishment by reason of one or more prior convictions, unless before trial, or before entry of a
plea of guilty, the United States attorney files an information with the court (and serves a copy of
such information on the person or counsel for the person) stating in writing the previous
convictions to be relied upon.” Once the information is filed, section 851 sets forth additional
procedural requirements that must be met before the court can impose the enhanced penalty upon
the offender.695
2.

Methodology

The Commission’s study of drug offenses and mandatory minimum penalties
demonstrates a lack of uniformity in application of the enhanced mandatory minimum penalties.
To better assess the application of these penalties, the Commission conducted a more targeted
analysis of the nation-wide application of 21 U.S.C. § 851 by conducting a specialized coding
and analysis project. Assessing whether an offender qualifies for an enhancement under section
851 requires analysis of two factors: 1) the instant offense of conviction under title 21, United
692

See 21 U.S.C. § 841(b)(1)(A).

693

See id.

694

As noted earlier in this chapter, section 846, which criminalizes attempts and conspiracies, adopts the penalty
structure for the underlying offense. These three statutes, as noted in Table 4-1, were the three most frequently
charged in 2010.

695

See generally 21 U.S.C. § 851 (b)-(d). The offender can challenge the prior conviction, which requires a hearing
at which the United States Attorney has the burden of proof beyond a reasonable doubt on any issue of fact. See
21 U.S.C. § 851(c)(1). The offender can also challenge the constitutionality of the prior conviction, but must set
forth the challenge with particularity. For such challenges, the offender bears the burden of proof by a
preponderance on any issue of fact raised by this response. See 21 U.S.C. § 851(c)(2). These challenges must be
resolved at a hearing, at which either party may introduce evidence. Either side has the right to appeal the court’s
determination. See 21 U.S.C. § 851(d)(2).

253

States Code; and 2) prior qualifying drug convictions. Information about both factors can be
determined objectively from the sentencing documents submitted to the Commission. Thus,
evaluating whether section 851 enhancements are uniformly applied lends itself to quantitative
analysis.
The Commission used sample groups from three fiscal years (2006,696 2008, and 2009697)
for the analysis. In all, 3,050 cases from fiscal year 2006, 5,434 cases from fiscal year 2008, and
5,451 cases from fiscal year 2009 were included in this analysis.
Using these groups of cases, the Commission examined all the documents submitted for
each case to ascertain whether the enhancement could have applied based on the offender’s prior
criminal history. To make this determination, the Commission examined each offender’s
criminal history for any prior conviction involving the distribution, manufacture, sale, possession
with the intent to distribute, intent to manufacture, trafficking or importation or exportation of
any controlled substances.698 The Commission also noted whether any such offenses were
specifically identified as a felony and if so, included those cases in the analysis. For any drug
offense not specifically identified as a felony, the Commission examined the sentence for the
drug conviction to determine whether it exceeded 12 months.699 If so, the case was included in
the analysis. Juvenile drug convictions were excluded from the analysis.
696

The fiscal year 2006 sample was randomly selected from the Commission’s fiscal year 2006 datafile and
comprises cases that were sentenced after June 6, 2006. The Commission selected offenders in cases where the
enhancement was documented as part of the conviction or in cases sentenced under USSG §§2D1.1 or 2D1.2 and
where the offender’s previous criminal history included a drug offense.
697

The fiscal year 2008 and 2009 samples were randomly selected from cases with complete guideline application
information sentenced in the third and fourth quarters of those fiscal years. From this sample group, the
Commission selected cases with the enhancement documented as a statute of conviction, or with offenders with
previous criminal history and sentenced under USSG §§2D1.1 or 2D1.2.

698

Although some federal circuit courts have held that juvenile felony drug convictions qualify for enhancement
under section 841(b), the Commission excluded juvenile predicate convictions from the analysis of offenses eligible
for enhancement because presentence reports sometimes fail to specify whether a defendant was certified as an adult
notwithstanding the fact he or she was under the age of majority under state law. Moreover, although some federal
courts have broadly interpreted section 802(44) to include convictions for offenses “related to” drugs, such as use of
a telephone to facilitate drug trafficking, the Commission only included felony convictions for drug distribution,
manufacture, possession, and similar drug offenses.

699

An important limitation on the Commission’s coding project concerning enhancements for prior convictions for
felony drug offenses under section 841(b) should be noted. Under 18 U.S.C. § 802(44), a “felony drug offense”
includes simple possession of a controlled substance that is punishable in excess of one year in prison even if such
an offense is not labeled as a “felony” offense under the relevant state law. Such predicate convictions for simple
possession thus can include cases in which an offender was sentenced to a year or less in prison or sentenced to
probation. In reviewing the criminal history sections of presentence reports in order to determine whether an
offender was eligible for enhancement under section 851 based on a prior conviction for simple possession of a
controlled substance, the Commission often could not ascertain whether prior convictions receiving sentences of one
year or less (including probationary sentences) were “punishable” in excess of one year in prison under state law.
For that reason, the Commission only included convictions for simple possession that received prison sentences of
more than one year in order to ensure that such convictions were in fact felonies. This approach likely was underinclusive insofar as it did not include certain prior convictions that were eligible for enhancement under section 851.

254

Once the Commission concluded than an offender qualified for the enhancement, the
Commission examined the documentation to ascertain whether the court had made any findings
of fact relating to the enhancement. The Commission also attempted to determine whether the
government had affirmatively agreed not to file the enhancement as part of plea negotiations.
3.

Geographic Variations

From the sample, the Commission identified, district by district, the percentage of drug
offenders who, based on their offense conduct and criminal history, appeared to be eligible for
enhancement under 21 U.S.C. § 851 in fiscal years 2006, 2008, and 2009. See Figure 8-49. In
the majority of the districts, at least one-quarter of all drug offenders were eligible for
enhancement under section 851. Specifically, in 62 of 94 judicial districts (66.0%), the rates of
drug offenders eligible for enhancement under section 851 were between 25 and 49 percent. In
addition, in 29 districts (30.8%), the rates of eligible drug offenders were between 50 and 74
percent. There were only three districts (3.2%) in which less than 25 percent of drug offenders
were eligible for enhancement.
Drug Offeudel'

Figure 8-49
21 U.5.c. § 851

Eligibilit~· fol'

Pellal~'

Elllmucemelll

b~' Di~fricl

Fi')('al Year 1006, 1008 aud 1009 Sample

Gl'oull.~

n~.

~

Y'."t>

The Commission’s analysis revealed significant variation in the manner in which the
enhancement provision was applied. For example, in six districts, more than 75 percent of
eligible defendants received the increased mandatory minimum penalty as an enhancement. In
contrast, in eight districts, none of the eligible drug offenders received the enhanced penalty. See
Figure 8-50.

255

Applinllion of 11 V.S.c. § 851

Figure 8-50
EnlJan('ement fol' Eligiblt" Dl'ng Offendel's

Penah~'

B~' Di~lii('1
Fi~('al Year

n~. ...

~

-

1006, 1008 and 1009 Sample Groups

.

c:::::J 25-''';

4.

_

50-14~

_

'5-~911

_

IOOl:

Demographic Characteristics of Offenders Eligible for Section 851 Enhancement

The Commission also examined demographic data about the offenders eligible for the
enhancement. Within each racial demographic group there were offenders who were eligible for
the enhancement but did not receive it. See Figure 8-51. Black offenders qualified for the
enhancement at higher rates than any other racial group. More than half (58.0%) of Black
offenders were eligible for the enhancement, but only 17.3 percent received it. More than onethird (36.5%) of White offenders were eligible for the enhancement while 9.1 percent received it.
Hispanic offenders were eligible in 30.5 percent of their cases, but 6.0 percent received the
enhancement. Finally, 24.1 percent of Other Race offenders were eligible for the enhancement,
while 6.0 percent received it.

256

Figul'f 8-51
Ral'l" of Drug OfTendl"l':5 by Exposurl" to
11 U.S.c. § 851 Penalt~y EniJaul'l"ml"nt
Fiscal Year 1006, 1008 and 1009 Sample Groul)s
.[n~ . .«d

.[~libl<o

",,,"","",-----------------------------

100.0 I

80.0 + - - - - - - - - - - - - - - - - - - - - - - - - -

60.0

40.0

t- - - - - -

+-_u

~8.0 - - - - - - - - - - - - - -

_

10.0

••
soo"e•.

Whit<

u.s._~_

H;';pani<

BinI.:

O,h••

>000,2001-':>000 .." " _

A more precise way to analyze the application of the enhancement among racial groups is
to examine the percentage of offenders in each racial group who were eligible to receive the
enhancement compared to the percentage of those offenders who did receive it. Using this
approach, 29.9 percent of Black offenders who were eligible to receive the enhanced penalty did,
in fact, receive it. This rate was only slightly higher than the rates for White offenders (25.0%)
and Other Race offenders (24.8%). Eligible Hispanic offenders received the enhanced penalty at
the lowest rate of any racial group (19.9%). See Figure 8-52.

257

Fil:U'''' 8-52
A],plicatiou of 21 U.S.c. § 851 Peual~· EllhaucelDem
By R:Jce of Offeude,':'i
Fi.,cal Yen 2006, 2008 and 2009 SalD]JI.. G"",p,
Bu,t Off..<1..,

\\Jr.;.. OO,.d'l1

--.~-,

_ ..<-.. . . .

f'U..)

_..-

Qtll,. Qlfudm

Hh...j, Q(ftidm

,~,

~

5.

Drug Types Associated with Offenders Eligible for Section 851 Enhancement

As discussed above, offenders of certain demographic groups (primarily race and
citizenship) were more often associated with specific drug types. As a result, there were notable
differences among each drug type in the offenders who were eligible for the sentence
enhancement under section 851. See Figure 8-53. For example, crack cocaine offenders were
most often eligible for the enhancement. This is because the vast majority of crack cocaine
offenders were Black and had, on average, higher criminal history scores than other drug
offenders. In contrast, powder cocaine offenders were often Hispanic, and the majority of these
offenders (61.8%) had criminal history scores in Criminal History Category I.

258

Figul'f 8-53
Drug T"pe fOl' Dl'ug Offeudt'rs b~' EXIJOSUI't' 10
11 U.S,c. § 851 Peual!)' EuiJauct'Jnt'ut
Fiscal Year 1006, 1008 aud 1009 Samplll' Groups
100,0

• Eobanrfd

.E1i~iblf

P..Toot

80.0

...,
~O.O

!O.O

0.0

C<H'ain.

Crack

U..oin

:\I.,ijuana

:\I<'I'h

Othor

Despite these differences, within each drug type the number of offenders who were
eligible for the enhancement was higher than the number of offenders who received the
enhancement. Crack cocaine offenders had the highest application rate (29.9%) of the
enhancement, followed by powder cocaine offenders (26.9%), and methamphetamine offenders
(25.2%). Heroin drug offenders received the enhancement least often (20.0%).700 See Figure
8-54.

700

This part does not include information about the impact on the federal prison population because the analysis
used a sample of cases and the Commission cannot perform an analysis of the prison population using a sample.

259

Fil:"'''' 8-54
Applie31iou of 21 U.S.c. § 851 Peu31~· Lllb3ueemeDl by Dt"lll: Type
Fi.,c31 Yeu 2006, 2008 3nd 2009 S3lnple G'"OlIp'
Coui.a, Off,.d,"

"-

~--­

("l"J.''')
~hrij....

Q«..dm

Cr<st Off..dtn

---nu,,)

Mull'DlDl!...",i.a, Qfe..dtn

~--

(11.1")

-----~~,

Olb.. Off.. <1..,

(2''-)

~--­

('.00.)

6.

H.... jg, On. .drn

---01-"')

Summary

With respect to the application of enhanced mandatory minimum penalties for under 21
U.S.C. § 851, Commission analyses of a sample of cases from fiscal years 2006, 2008, and
2009 demonstrate the following:
•

•

In the majority of the districts, at least one-quarter of all drug offenders were eligible for
enhancement under section 851.
o

In 62 of 94 judicial districts (66.0%), the rates of drug offenders eligible for
enhancement under section 851 were between 25 and 49 percent.

o

In 29 districts (30.8%), the rates of eligible drug offenders were between 50 and
74 percent.

o

There were only three districts (3.2%) in which less than 25 percent of drug
offenders were eligible for enhancement.

The Commission’s analysis revealed significant variation in the manner in which the
enhancement provision was applied.
o

In six districts, more than 75 percent of eligible defendants received the increased
mandatory minimum penalty as an enhancement.
260

o

In contrast, in eight districts, none of the eligible drug offenders received the
enhanced penalty.

•

More than half (58.0%) of Black offenders were eligible for the enhancement, but only
17.3 percent received it. More than one-third (36.5%) of White offenders were eligible
for the enhancement while 9.1 percent received it. Hispanic offenders were eligible in
30.5 percent of their cases, but 6.0 percent received the enhancement. Finally, 24.1
percent of Other Race offenders were eligible for the enhancement, while 6.0 percent
received it.

•

Black offenders who were eligible to receive the enhanced penalty received it in 29.9
percent of the cases. This rate was only slightly higher than the rates for White offenders
(25.0%) and Other Race offenders (24.8%). Eligible Hispanic offenders received the
enhanced penalty at the lowest rate of any racial group (19.9%).

•

Within each drug type the number of offenders who were eligible for the enhancement
was higher than the number of offenders who received the enhancement.

•

Crack cocaine offenders had the highest application rate (29.9%) of the enhancement,
followed by powder cocaine offenders (26.9%) and methamphetamine offenders (25.2%).
Heroin drug offenders received the enhancement least often (20.0%).

J.

SUMMARY

With respect to mandatory minimum penalties and drug offenses generally, Commission
analyses demonstrate the following:
Offenses and Offenders

•

701

•

In fiscal year 2010, two of every three offenders convicted of an offense carrying a
mandatory minimum penalty were drug offenders. Almost half of all drug offenders
(48.7%) who were convicted of an offense carrying a mandatory minimum penalty were
convicted of an offense carrying a 10-year penalty.

•

The type of drug involved in drug cases significantly impacts the application of
mandatory minimum penalties. In fiscal year 2010, the highest rate of conviction of such
penalties was in methamphetamine cases (83.2%) while the lowest rate for the major drug
types was in marijuana cases (44.3%).701
The demographic and offense characteristics of drug offenders vary widely by the type of
drug involved in the offense.

“Other” drug cases (such as those involving PCP and LSD) had the lowest rate (11.4%).

261

•

In fiscal year 2010, five of the 94 judicial districts reported more than 500 drug cases
involving a mandatory minimum penalty: Southern Texas (n=1,074), Western Texas
(n=962), Southern California (n=666), Southern Florida (n=536), and Middle Florida
(n=504).

•

In fiscal year 2010, districts reporting the highest percentage of drug mandatory
minimum cases in their overall caseload included Puerto Rico (59.5%, n=464),
Minnesota (49.7%, n=239), Southern Iowa (47.5%, n=199), Hawaii (44.9%, n=71), and
Nebraska (43.1%, n=245).

•

The Commission’s analysis of a 15 percent sample of fiscal year 2009 cases indicates that
the mandatory minimum penalties for drug offenses sweep more broadly than Congress
may have intended.
o

Among all drug cases, Courier was the most common function, representing 23.0
percent of all offenders, followed by Wholesaler (21.2%), Street-Level Dealer
(17.2%), and High-Level Supplier/Importer (10.9%).

o

The majority of offenders in nearly every function, including low-level Secondary
and Miscellaneous functions, were convicted of an offense carrying a mandatory
minimum penalty, although higher-level functions tended to be convicted of such
statutes at higher rates.

o

The Commission’s analysis found that, for every function, the quantity of drugs
involved in the offense resulted in a base offense level that included or exceeded
the five-year mandatory minimum penalty.

o

Furthermore, the Commission’s analysis revealed that the quantity of drugs
involved in an offense was not closely related to the offender’s function in the
offense.

o

As a result of the combined effect of the safety valve and applicable guideline
adjustments, offenders performing lower-level functions received significantly
shorter sentences overall than offenders performing higher-level functions. For
example, Mules (29 months) and Couriers (39 months) received significantly
shorter average sentences than High-Level Suppliers/Importers (101 months),
Organizer/Leaders (154 months), Wholesalers (103 months), and Managers (147
months).

Application and Relief
•

In fiscal year 2010, drug offenders convicted of a statute carrying a mandatory minimum
penalty went to trial more than twice (4.5%) as often as drug offenders who were not
convicted of an offense carrying a mandatory minimum penalty (1.6%). Furthermore, on
average, the longer the mandatory minimum penalty an offender was facing, the less
likely the offender was to plead guilty.
262

•

In fiscal year 2010, more than half (54.4%) of drug offenders convicted of an offense
carrying a mandatory minimum penalty received relief from the mandatory minimum
penalty. One-quarter (26.1%) of these offenders received relief through operation of the
safety valve alone; 19.3 percent by providing substantial assistance to the government;
and 9.0 percent through both the safety valve and substantial assistance provisions.

•

The analysis of the 15 percent sample of fiscal year 2009 cases revealed that the rate at
which offenders received relief from a mandatory minimum penalty varied by function,
but did so differently depending on the type of relief. Offenders who performed highlevel functions generally obtained relief for substantial assistance at higher rates than
offenders who performed low-level functions. Offenders who performed low-level
functions were more likely to obtain relief through the safety valve provision than were
offenders who performed high-level functions.

•

In fiscal year 2010, the rate at which offenders received relief from the mandatory
minimum penalty through these provisions varied by race, gender, and citizenship.
o

o

Other Race offenders qualified for some form of relief from a mandatory
minimum penalty most often, in 72.3 percent of the cases in which they were
convicted of an offense carrying such a penalty, followed by White (63.7%) and
Hispanic (59.0%) offenders. Black offenders qualified for relief from mandatory
minimum penalties least often, in 39.4 percent of the cases in which they were
convicted of an offense carrying such a penalty.


Black offenders received substantial assistance relief alone from a
mandatory minimum penalty most often, in 25.0 percent of their offenses
carrying such a penalty, followed by White (24.2%) and Other Race
(23.9%) offenders. Hispanic offenders received relief from mandatory
minimum penalties through substantial assistance the least often, in 12.6
percent of their cases.



Hispanic offenders received safety valve relief alone most often, in 36.8
percent of their cases, followed by Other Race (29.5%) and White (26.9%)
offenders. Black offenders received relief from mandatory minimum
penalties through the safety valve the least often, in 9.8 percent of their
cases.



Other Race offenders received relief from a mandatory minimum penalty
through a combination of substantial assistance and safety valve relief
most often, in 18.9 percent of their cases, followed by White (12.6%),
Hispanic (9.5%) and Black (4.6%) offenders.

Female offenders qualified for some form of relief from a mandatory minimum
penalty in 73.0 percent of the cases in which they were convicted of an offense
carrying such a penalty.
263

o



Male offenders received substantial assistance relief alone from a
mandatory minimum penalty more often, in 19.5 percent of their cases,
compared to female offenders (18.2%).



Female offenders received safety valve relief alone more often, in 35.0
percent of their cases, compared to male offenders (25.1%).



Female offenders also received relief from a mandatory minimum penalty
through a combination of substantial assistance and safety valve relief
more often in 19.7 percent of their cases, compared to 7.8 percent of cases
involving male offenders.

Non-citizen drug offenders received relief from the mandatory minimum penalty
at a higher rate (69.5%) than United States citizen drug offenders (48.0%).


United States citizen drug offenders received substantial assistance relief
alone from a mandatory minimum penalty more often, in 23.4 percent of
their cases, compared to non-citizen offenders (9.8%).



Non-citizen offenders received safety valve relief alone more often, in
49.3 percent of their cases, compared to United States citizen offenders
(16.2%).



Non-citizen offenders also received relief from a mandatory minimum
penalty through a combination of substantial assistance and safety valve
relief more often, in 10.4 percent of their cases, compared to 8.4 percent of
cases involving United States citizens.



In fiscal year 2010, courts imposed a sentence within the applicable guideline range in
fewer than half (43.7%) of all cases involving an offense carrying a mandatory minimum
penalty. In 28.3 percent of such cases, the sentence was below the applicable guidelines
range at the request of the government because the offender had provided substantial
assistance to the government in the investigation of another offense.



In fiscal year 2010, the average extent of substantial assistance departures in drug
offenses was 48.8 percent (67 months) from the minimum of the otherwise applicable
guideline range. However, the average extent of substantial assistance departures varied
by major drug type.
o

The average extent of substantial assistance departures in powder cocaine cases
was 48.6 percent (66 months).

o

The average extent of substantial assistance departures in crack cocaine cases was
49.7 percent (87 months). This was the highest in number of months for any
major drug type.
264



o

In fiscal year 2010, the average extent of substantial assistance departures in
marijuana cases was 52.5 percent (40 months) from the minimum of the otherwise
applicable guideline range. This was lowest in number of months for any major
drug type.

o

The average extent of substantial assistance departures in methamphetamine cases
was 45.2 percent (66 months).

o

In fiscal year 2010, the average extent of substantial assistance departures in
heroin cases was 52.8 percent (61 months) from the minimum of the otherwise
applicable guideline range. This was the highest percentage for any major drug
type.

In fiscal year 2010, the average extent of non-government sponsored below range
sentences in drug offenses that carried a mandatory minimum penalty was 29.8 percent
(34 months) from the minimum of the otherwise applicable guideline range.
o

The average extent of non-government sponsored below range sentences in
powder cocaine cases that carried a mandatory minimum penalty was 29.0 percent
(31 months).

o

The average extent of non-government sponsored below range sentences in crack
cocaine cases was 30.3 percent (45 months). This was the highest in number of
months for any major drug type.

o

The average extent of non-government sponsored below range sentences in
marijuana cases was 35.5 percent (21 months). This was the highest percentage
for any major drug type, but the lowest in number of months.

o

The average extent of non-government sponsored below range sentences in
methamphetamine cases was 26.1 percent (32 months) from the minimum of the
otherwise applicable guideline range. This was the lowest percentage for any
major drug type.

o

The average extent of non-government sponsored below range sentences in heroin
cases was 31.3 percent (27 months).

Sentencing
•

In fiscal year 2010, 45.6 percent of drug offenders convicted of an offense carrying a
mandatory minimum penalty were subject to the mandatory minimum penalty at
sentencing.

265

•

In fiscal year 2010, the rate at which drug offenders convicted of an offense carrying a
mandatory minimum penalty were subject to the mandatory minimum penalty at
sentencing varied by race, gender and citizenship.
o

Black offenders were subject to the mandatory minimum penalty at sentencing
most often, in 60.6 percent of their offenses carrying such a penalty, followed by
Hispanic (41.0%) and White (36.3%) offenders. Other Race offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 27.7
percent of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (47.7% of their cases, compared to 27.0% of
cases involving female offenders).

o

United States citizen offenders were subject to the mandatory minimum penalty
at sentencing more often than non-citizen offenders (52.0% of their cases,
compared to 30.5% of cases involving non-citizen offenders).

 The average sentence for drug offenders convicted of an offense carrying a mandatory

minimum varied, and was largely dependent upon the type of drug involved in the
offense and whether the offender obtained relief from the mandatory minimum penalty.
o

The average sentence for powder cocaine offenders who remained subject to the
mandatory minimum penalty was 138 months and the average sentence for those
offenders who obtained relief from the mandatory minimum penalty was 62
months.

o

The average sentence for crack cocaine offenders who remained subject to a
mandatory minimum penalty was 139 months. The average sentence for crack
cocaine offenders who obtained relief from a mandatory minimum penalty was 80
months, which was the highest for any major drug type.

o

Marijuana offenders received the lowest sentences of any major drug type. The
average sentence for marijuana offenders who remained subject to a mandatory
minimum penalty was 93 months and the average sentence for marijuana
offenders who obtained relief from a mandatory minimum penalty was 34
months.

o

Methamphetamine offenders who remained subject to a mandatory minimum
penalty received the highest sentences of any major drug type. The average
sentence for methamphetamine offenders who remained subject to a mandatory
minimum penalty was 144 months. The average sentence for methamphetamine
offenders who obtained relief from a mandatory minimum penalty was 72
months.

266

o

•

•

The average sentence for heroin offenders who remained subject to a mandatory
minimum penalty at the time of sentencing was 119 months. The average
sentence for heroin offenders who obtained relief from a mandatory minimum
penalty was 51 months.

The Commission’s analyses of a sample of cases from fiscal years 2006, 2008, and 2009
indicates that in the majority of the districts, at least one-quarter of all drug offenders
were eligible for enhancement under section 851.
o

In 62 of 94 judicial districts (66.0%), the rates of drug offenders eligible for
enhancement under section 851 were between 25 and 49 percent.

o

In 29 districts (30.8%), the rates of eligible drug offenders were between 50 and
74 percent.

o

There were only three districts (3.2%) in which less than 25 percent of drug
offenders were eligible for enhancement.

The Commission’s analysis of a sample of cases from fiscal years 2006, 2008, and 2009
revealed significant variation in the manner in which the enhancement provision was
applied.
o

In six districts, more than 75 percent of eligible defendants received the increased
mandatory minimum penalty as an enhancement.

o

In contrast, in eight districts, none of the eligible drug offenders received the
enhanced penalty.

•

More than half (58.0%) of Black offenders were eligible for the enhancement, but only
17.3 percent received it. More than one-third (36.5%) of White offenders were eligible
for the enhancement while 9.1 percent received it. Hispanic offenders were eligible in
30.5 percent of their cases, but 6.0 percent received the enhancement. Finally, 24.1
percent of Other Race offenders were eligible for the enhancement, while 6.0 percent
received it.

•

Black offenders who were eligible to receive the enhanced penalty received it in 29.9
percent of the cases. This rate was only slightly higher than the rates for White offenders
(25.0%) and Other Race offenders (24.8%). Eligible Hispanic offenders received the
enhanced penalty at the lowest rate of any racial group (19.9%).

•

Within each drug type the number of offenders who were eligible for the enhancement
was higher than the number of offenders who received the enhancement.

•

Crack cocaine offenders had the highest application rate (29.9%) of the enhancement,
followed by powder cocaine offenders (26.9%) and methamphetamine offenders (25.2%).
Heroin drug offenders received the enhancement least often (20.0%).
267

Prison Impact
•

•

At the end of fiscal year 2010, slightly more than half (53.8%, n=103,194) of the 191,757
offenders incarcerated in the BOP were drug offenders.
o

13.4 percent (n=25,767) were powder cocaine offenders.

o

17.0 percent (n=32,694) were crack cocaine offenders.

o

6.5 percent (n=12,473) were marijuana offenders.

o

12.0 percent (n= 22,935) were methamphetamine offenders.

o

3.0 percent (n=5,817) were heroin offenders.

Slightly more than half (52.9%, n=54,635) of these drug offenders were subject to a
mandatory minimum penalty at sentencing.

268

Chapter 9

MANDATORY MINIMUM PENALTIES FOR
FIREARM OFFENSES
A.

INTRODUCTION

This chapter analyzes the application of two mandatory minimum sentencing provisions
relating to firearm offenses. After a brief overview of the applicable statutes and related
guidelines, this chapter first provides data and analyses concerning the application of the
offenses and accompanying mandatory minimum penalties established at 18 U.S.C. § 924(c) for
certain conduct involving firearms. Second, this chapter provides data and analyses concerning
the application of the 15-year mandatory minimum penalty established in the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e), for recidivist offenders who commit certain firearm
offenses.
Section 924(c) establishes mandatory minimum penalties for conduct involving a firearm
in relation to an underlying offense, as discussed in more detail below. As a result, many
offenders who were convicted of an offense under section 924(c) may also have been convicted
of an underlying offense that resulted in a sentence imposed pursuant to a primary guideline
other than §2K2.4(b) (Use of a Firearm, Armor-Piercing Ammunition, or Explosive During or in
Relation to Certain Crimes), or convicted of an underlying offense that also carried a mandatory
minimum penalty, or both. For this reason, an offender convicted of an offense under section
924(c) may also be included in the analysis of other offense types in other chapters, most notably
drug offenses.
B.

THE STATUTES AND RELATED GUIDELINES
1.

18 U.S.C. § 924(c)

Section 924(c) of title 18, United States Code, establishes the offense of using or carrying
a firearm during and in relation to, or possessing a firearm in furtherance of, a crime of violence
or a drug trafficking crime.702 The statute prescribes a mandatory minimum penalty of at least
five years of imprisonment for committing the offense, with increasingly longer mandatory
minimum penalties based on how the firearm was used (seven years if the firearm was
brandished and ten years if the firearm was discharged) and the type of firearm involved (ten
years if the firearm was a short-barreled rifle, a short-barreled shotgun, or a semiautomatic
assault weapon and 30 years if the firearm was a machinegun, a destructive device, or was

702

18 U.S.C. § 924(c). The statute defines a “crime of violence” as any felony that “has as an element the use,
attempted use, or threatened use of physical force against the person or property of another,” or “that by its nature
involves a substantial risk that physical force against the person or property of another may be used in the course of
committing the offense.” A “drug trafficking crime” includes any felony that is punishable under the Controlled
Substances Act, codified at 21 U.S.C. § 801 et seq., or the Controlled Substances Import and Export Act, codified at
21 U.S.C. §§ 951, et seq. See 18 U.S.C. § 924(c)(2)–(3).

269

equipped with a silencer or muffler).703 Section 924(c) further provides that these mandatory
minimum penalties are to be imposed in addition to, and also must run consecutively to, “any
other term of imprisonment imposed on the person, including any term of imprisonment imposed
for the [underlying] crime of violence or drug trafficking crime . . . .”704
Some provisions in section 924(c) that impose longer mandatory minimum penalties are
elements of the offense that must be proven to a jury beyond a reasonable doubt, while others are
sentencing factors that may be determined by the court at sentencing. For example, in Harris v.
United States,705 the Supreme Court held that the determination of whether the offender
“brandished” a firearm so as to trigger the seven-year mandatory minimum penalty of section
924(c) was a sentencing factor properly found by the court.706 However, in United States v.
O’Brien,707 the Supreme Court held that the determination of whether the offense involved a
“machinegun” so as to trigger the statute’s 30-year mandatory minimum penalty is an element of
the offense that must be submitted to a jury or admitted by the defendant.708 Accordingly,
offenders convicted of an offense under section 924(c) may be subject to varying procedural and
proof requirements depending on which portion of the statute applies.
Section 924(c) also establishes longer mandatory minimum penalties, generally requiring
25 years of imprisonment, for each “second or subsequent conviction” of a section 924(c)
offense.709 The Supreme Court has held that when multiple section 924(c) counts are charged in
the same proceeding, the longer mandatory minimum penalty applies because any additional
convictions of an offense under section 924(c) are “second or subsequent” to the first such
conviction.710 Thus, the longer recidivist mandatory minimum penalty must be served
consecutively to any sentences imposed for the underlying offenses and other section 924(c)
offenses, even when all of the offenses were charged in a single indictment. This practice of

703

See 18 U.S.C. § 924(c)(1)(A)–(C).

704

Id. § 924(c)(1)(A), (c)(1)(D).

705

536 U.S. 545 (2002).

706

Id. at 554.

707

130 S. Ct. 2169 (2010).

708

See id. at 2174-80. For additional discussion of Harris, O’Brien, and the constitutional principles underlying the
Court’s decisions in those cases, see supra Chapter 3 and infra Appendix E(A)(1).

709

The mandatory minimum penalty for a second or subsequent violation of section 924(c) is 25 years of
imprisonment. See 18 U.S.C. § 924(c)(1)(C)(i). The mandatory minimum penalty for a second or subsequent
violation becomes life imprisonment if the firearm involved was a machinegun, a destructive device, or was
equipped with a silencer or muffler. See id. § 924(c)(1)(C)(ii).
710

See Deal v. United States, 508 U.S. 129 (1993). For additional discussion of Deal and second or subsequent
violations of section 924(c), see infra Appendix E(B)(2).

270

charging multiple violations of section 924(c) within the same indictment is commonly known as
“stacking” mandatory minimum penalties.
USSG §2K2.4(b) provides that the guideline sentence for an offender convicted of an
offense under section 924(c) “is the minimum term of imprisonment required by statute.”711
When the offender is convicted of offenses in addition to an offense under section 924(c), the
applicable guideline range for the additional offenses is determined using the guideline
provisions and grouping rules applicable to those crimes.712 The resulting range guides the
sentence for the additional offenses, to which the court must add a consecutive sentence for the
924(c) offense.713 The guidelines establish a separate sentencing table with higher penalties for
offenders who are convicted of an offense under section 924(c) and qualify as a “career
offender.”714
2.

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

ACCA requires at least 15 years of imprisonment if the defendant violates 18 U.S.C.
§ 922(g) and has at least three previous convictions for a violent felony or a serious drug
offense.715 Section 922(g) makes it unlawful for certain prohibited persons, including convicted
felons, fugitives from justice, persons dishonorably discharged from the armed forces, and aliens
who are illegally or unlawfully in the United States, to possess a firearm or ammunition that is in
or affecting commerce, to ship or transport a firearm or ammunition in interstate or foreign
commerce, or to receive any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.716

711

USSG §2K2.4(b).

712

See USSG §5G1.2(b) (Sentencing on Multiple Counts of Conviction).

713

See USSG §5G1.2(a) & (b); see also USSG §3D1.1(b)(1) (Procedure for Determining Offense Level on Multiple
Counts).

714

Under §4B1.1, a defendant qualifies as a career offender if the defendant was at least 18 years old at the time he
or she committed the instant offense, the instant offense of conviction is a felony that is either a crime of violence or
a controlled substance offense, and the defendant has at least two such prior convictions. See USSG §4B1.1(a).
Offenders convicted of an offense under section 924(c) and who qualify as career criminals receive a guideline
range of 360 months to life imprisonment, with lower ranges for offenders who also receive a reduction for
acceptance (262–327 months for a 3-level reduction, and 292–365 months for a 2-level reduction). See USSG
§4B1.1(c). For career offenders convicted of multiple counts of an offense under section 924(c), §4B1.1 provides
that the guideline range is the greater of the range determined by the separate career offender sentencing table, or the
range that results by adding the mandatory minimum penalties “to the minimum and the maximum of the otherwise
applicable guideline range determined” for the non-section 924(c) counts. See USSG §4B1.1(c)(2).
715

See 18 U.S.C. § 924(e)(1). The definitions of “violent felony” and “serious drug offense” require only that the
prior offense be “punishable” by a term of more than one year of imprisonment, or a term of at least ten years of
imprisonment, respectively. See 18 U.S.C. § 924(e)(2). ACCA does not contain limitation on the date of the
predicate offense conviction, meaning that an offender may be subject to the mandatory minimum penalty on
account of offenses committed many years or even decades earlier. See id.

716

18 U.S.C. § 922(g).

271

Section 924(e) is a sentencing enhancement for committing an offense under section
922(g). Section 924(e) therefore does not establish a separate criminal offense,717 and its
application does not infringe on the defendant’s Sixth Amendment rights because the fact of a
prior conviction need not be proven to a jury beyond a reasonable doubt.718 The statute does not
prescribe a formal procedure the government must follow when it intends to seek an
enhancement pursuant to section 924(e), though due process requires that the defendant be
afforded some notice that the enhancement may apply.719 All other determinations necessary to
apply the enhancement, including whether the predicate conviction was a “crime of violence” or
“drug trafficking offense,” are questions of law.720 If a defendant qualifies as an armed career
criminal, the court must impose the 15-year mandatory minimum penalty.721
The guideline applicable to offenders who qualify as armed career criminals, §4B1.4,
assigns a base offense level of 33, or a base offense level of 34 if the defendant used or possessed
a firearm in connection with a crime of violence or a controlled substance offense, or if the
firearm was of a particularly dangerous type. Alternatively, §4B1.4 uses the offender’s
otherwise applicable offense level if it is higher than level 33 or 34. Section 4B1.4 further
assigns a criminal history category that is the greatest of: Category IV; Category VI if the
defendant used or possessed a firearm in connection with a crime of violence or a controlled
substance offense, or if the firearm was of a particularly dangerous type; or the offender’s
otherwise applicable criminal history category.
3. The Categorical Approach
Section 924(c) and ACCA require that the offender have committed certain underlying or
predicate offenses, specifically a “crime of violence” or a “drug trafficking crime” (for section
924(c) to apply), or a “violent felony” or a “serious drug offense” (for ACCA to apply). The
statutes further define those terms, or reference other statutes that define them. To determine
whether the offender’s underlying or predicate offense meets the statutory definitions, the court
uses the “categorical approach” articulated by the Supreme Court in Taylor v. United States.722
717

See Custis v. United States, 511 U.S. 485, 490 (1994); United States v. Stone, 306 F.3d 241, 243 & n.2 (5th Cir.
2002) (collecting cases).

718

See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.”); United States v. Greer, 440 F.3d 1267, 1273 (11th Cir. 2006).

719

See United States v. Mack, 229 F.3d 226, 231 (3d Cir. 2000) (“[T]he ACCA does not require formal, pretrial
notice. Thus, only notice necessary to satisfy constitutional due process requirements need be given.” (citations
omitted)).

720

See, e.g., United States v. Dancy, 640 F.3d 455, 464-65 (1st Cir. 2011); United States v. Canty, 570 F.3d 1251,
1254-55 (11th Cir. 2009).

721

United States v. Johnson, 973 F.2d 857, 860 (10th Cir. 1992) (“Once the sentencing court was aware that the
requirements of § 924(e)(1) were satisfied, the enhancement was mandatory.”); United States v. Anderson, 921 F.2d
335, 337 (1st Cir. 1990) (“If the requisite preconditions [of section 924(e)] are present, the district court must
impose a sentence at or above the congressionally mandated minimum.”).

722

495 U.S. 575, 602 (1990).

272

Under the categorical approach, the court looks only to the fact of the conviction and statutory
elements of the offense, without regard to particular facts underlying the conviction.723 When
the statutory elements establish alternative modes of committing an offense, only some of which
qualify as an underlying or predicate offense for purposes of section 924(c) or ACCA, the court
may also look to the charging documents, jury instructions, and documents related to the guilty
plea in the prior case.724 There has been extensive litigation over whether particular state and
federal crimes qualify as underlying and predicate offenses, producing criticisms of both the
statutory definitions and the categorical approach itself.725
C.

MANDATORY MINIMUM PENALTIES FOR SECTION 924(c) OFFENSES

Of the 73,239 offenders included in this analysis, 2,294 (3.1%) were convicted of an
offense under section 924(c). Of the 2,294 offenders convicted of an offense under section
924(c), 2,147 (93.6%) were convicted of a single count of an offense under section 924(c) and
147 (6.4%) were convicted of multiple counts of an offense under section 924(c).
The sentences imposed on a majority of offenders convicted of a single count of an
offense under section 924(c) were governed by the statute’s five-year mandatory minimum for
using or carrying a firearm during, or possessing a firearm in furtherance of, the predicate
offense. Of the 2,147 offenders convicted of a single count of an offense under section 924(c) in
fiscal year 2010, the five-year mandatory minimum penalty applied in 1,391 (64.8%) cases; the
seven-year mandatory minimum penalty for brandishing a firearm applied in 488 (22.7%) cases;
and the ten-year mandatory minimum penalty applied in another 188 (8.8%) cases because the
offender either discharged the firearm or because the offense involved a short-barreled rifle,
short-barreled shotgun, or a semiautomatic assault weapon. In 71 cases (3.3%) a mandatory
minimum penalty of more than ten years applied either because it was the second or subsequent
conviction of that offender for an offense under 924(c), or the instant offense involved a
machinegun, destructive device, or firearm equipped with a silencer or muffler. Finally, in nine
cases (0.4%), the life mandatory minimum penalty applied because it was the second or
subsequent conviction of that offender and the offense involved a machinegun, destructive
device, or firearm equipped with a silencer or muffler.
Most offenders convicted of multiple counts of an offense under section 924(c) were
convicted of two such counts. Of the 147 offenders convicted of multiple counts of an offense
under section 924(c) in fiscal year 2010, 110 (74.8%) were convicted of two counts of an

723

See id.

724

See id.; see also Shepard v. United States, 544 U.S. 13, 26 (2005).

725

See, e.g., Chambers v. United States, 555 U.S. 122, 133-34 (2009) (Alito, J., concurring) (“After almost two
decades with Taylor’s “categorical approach,” only one thing is clear: ACCA’s residual clause is nearly impossible
to apply consistently. Indeed, the “categorical approach” to predicate offenses has created numerous splits among
the lower federal courts, the resolution of which could occupy this Court for years.”); James v. United States, 550
U.S. 192, 216 (2007) (Scalia, J., dissenting) (“Years of prison hinge on the scope of ACCA’s residual provision, yet
its boundaries are ill defined.”).

273

offense under section 924(c), 12 (8.2%) were convicted of three counts, nine (6.1%) were
convicted of four counts, and 16 (10.9%) were convicted of five or more counts.
1.

Demographic Characteristics

Table 9-1 compares the demographic characteristics of all offenders convicted of an
offense under section 924(c) with the demographic characteristics of offenders subject to the
mandatory minimum penalties under section 924(c) at sentencing because they did not receive
relief for rendering substantial assistance to authorities, and the demographic characteristics of
offenders convicted of multiple counts of an offense under section 924(c). Table 9-1 shows that
Black, male, and United States citizen offenders were convicted of an offense under section
924(c), were subject to the mandatory minimum penalty at sentencing, and were convicted of
multiple counts of an offense under section 924(c), at higher rates than offenders with other
demographic characteristics.
Table 9-2 presents information about the criminal histories of those groups of offenders.
In fiscal year 2010, 12.2 percent (n=280) of offenders convicted of an offense under section
924(c) were sentenced as career offenders pursuant to §4B1.1(c).

Table 9-1
Demographic Characteristics of Offenders Convicted of 18 U.S.C. ' 924(c)
Fiscal Year 2010

Demographics
Total (# of offenders)

Convicted of
18 U.S.C. ' 924(c)

Subject to 18 U.S.C.
' 924(c)
at Sentencing

2,294

Convicted of Multiple
Counts of
18 U.S.C. ' 924(c)

1,733

147

Race of Offender (Percent)
White

20.1

20.0

15.1

Black

55.9

55.7

61.0

Hispanic

21.0

21.0

21.2

3.1

3.2

2.7

Other

Citizenship of Offender (Percent)
United States Citizen

86.7

87.3

84.4

Non-Citizen

13.3

12.7

15.6

97.1

97.9

99.3

2.9

2.1

0.7

Gender of Offender (Percent)
Male
Female

274

Table 9-2
Criminal History of Offenders Convicted of 18 U.S.C. ' 924(c)
Fiscal Year 2010

Criminal History Category

Convicted of
18 U.S.C. ' 924(c)

Total (# of offenders)

Subject to 18 U.S.C.
' 924(c)
at Sentencing

2,294

Convicted of Multiple
Counts of
18 U.S.C. ' 924(c)

1,733

147

Criminal History Category (Percent)
I

29.9

27.9

22.1

II

12.9

12.4

11.0

III

18.4

19.1

20.0

IV

12.2

13.2

17.9

V

6.4

6.8

8.3

VI

20.1

20.6

20.7

2.

Guilty Pleas and Trials

Offenders convicted of an offense under section 924(c) were more likely to proceed to
trial than offenders convicted of an offense carrying a mandatory minimum penalty generally. In
fiscal year 2010, 12.8 percent (n=293) of offenders convicted of an offense under section 924(c)
proceeded to trial, compared to only 5.9 percent (n=1,181) of all offenders convicted of an
offense carrying a mandatory minimum penalty. See Figure 9-1.
Figul"l' \I-I
Plea and Trial RaIl' fOI" Fireal'm Offl'ndl'l"s COD\'irtl'd of all Offense Under
18 U.S.c. § \l2-l(c)
Fi.~cal Year 2010

..

,

2.001

WU%
SOUIlCI!'

us _

e - >0'0_ ,;sse7Y'o.

275

Offenders convicted of multiple counts of an offense under section 924(c) were much
more likely to proceed to trial than offenders convicted of a single count of an offense under
section 924(c). Of the 147 offenders convicted of multiple counts of an offense under section
924(c) in fiscal year 2010, 34.7 percent (n=51) proceeded to trial. In contrast, of the 2,147
offenders convicted of a single count of an offense under section 924(c), 11.3 percent (n=242)
proceeded to trial. Thus, the trial rate for offenders convicted of multiple counts of an offense
under section 924(c) was three times higher than the trial rate for offenders convicted of only a
single count of an offense under section 924(c), and nearly six times higher than the trial rate for
all offenders convicted of an offense carrying a mandatory minimum penalty.
3.

Geographic Variations

Cases involving a conviction of an offense under section 924(c) were primarily
concentrated in three circuits. Of the 2,294 cases in fiscal year 2010 that involved a conviction
of an offense under section 924(c), 520 (22.7%) were from the district courts in the Fourth
Circuit, 338 (14.7%) were from the district courts in the Eleventh Circuit, and 263 (11.5%) were
from the district courts in the Sixth Circuit. Thus, nearly half (48.9%, n=1,121) of the 2,294
cases involving a conviction of an offense under section 924(c) came from the district courts in
those three circuits.726 By way of comparison, 23.8 percent of all federal criminal cases reported
to the Commission for fiscal year 2010 came from the district courts in those three circuits.727
Cases involving a conviction of an offense under section 924(c) were similarly
geographically concentrated when viewed at the district level. In fiscal year 2010, 12 districts
reported 43.8 percent of the cases involving a conviction of an offense under section 924(c) (and
only five of those districts reported having at least 100 such cases). Those districts were:
Eastern Pennsylvania (5.8% of all 924(c) cases, n=134); Eastern North Carolina (5.5%, n=126);
Middle Florida (5.4%, n=123), Eastern Virginia (4.6%, n=105); South Carolina (4.5%, n=104);
Eastern Tennessee (3.0%, n=69); Southern Florida (2.9%, n=66); Southern New York (2.7%,
n=62); Middle North Carolina (2.6%, n=60); Central California (2.3%, n=53); Eastern New York
(2.2%, n=51); and Western Texas (2.2%, n=51).728 See Figure 9-2. By comparison, those
districts reported 28.6 percent of all federal criminal cases heard in fiscal year 2010.729 Thirtyeight districts reported having ten or fewer cases involving a conviction of an offense under
section 924(c).730

726

See Table D-14 (Mandatory Minimum Status for 18 U.S.C. § 924(c) Offenders in Each Circuit and District
(Fiscal Year 2010)) in Appendix D of this Report.

727

See Table D-1 (Mandatory Minimum Status of Cases in Each Circuit and District (Fiscal Year 2010)) in
Appendix D of this Report.

728

See Table D-14 in Appendix D of this Report.

729

See Table D-1 in Appendix D of this Report.

730

See Table D-14 in Appendix D of this Report.

276

Figurl' 9-2
l',umbt'1" of Offenders Convicted of an Offt'use t::ndt'1" 18 U.S.C. § 9N(c)
B\" Disll"ict
Fiscal Year 2010

~. ' .
=, ..
()

_0'-

'iOlJllCE

= ...... "

'-"00"''''

u... _ _ e - - >OlOllloo!lo. U!>SO'Y10.

Cases involving a conviction of an offense under section 924(c) constituted varying
percentages of the districts’ criminal case docket. Three districts had over ten percent of their
overall caseload involving a conviction of an offense under 924(c): Eastern North Carolina
(18.1%, n=126), Eastern Pennsylvania (15.0%, n=134) and Middle North Carolina (11.0%,
n=60). Conversely, ten districts had less than one percent of their overall caseload involving a
conviction of an offense under section 924(c): Northern Mariana Islands (0.0%, n=0), Southern
California (0.1%, n=3), Southern Texas (0.2%, n=16), Northern Iowa (0.3%, n=1), Northern
West Virginia (0.4%, n=1), Massachusetts (0.5%, n=2), Arizona (0.7%, n=35), New Mexico
(0.7%, n=24), Western Texas (0.8%, n=51), and Western Arkansas (0.8%, n=2).
The Commission further analyzed the geographic distribution of cases involving
convictions of multiple section 924(c) counts. This analysis shows that cases involving
convictions of multiple section 924(c) counts were more geographically concentrated than cases
involving a conviction of an offense under section 924(c) as a whole, particularly when viewed
at the district level. In fiscal year 2010, the ten districts that reported the highest number of the
147 cases involving multiple convictions of section 924(c) accounted for 62.7 percent of all such
cases. Those districts were: Eastern Pennsylvania (13.6%, n=20); Southern New York (10.2%,
n=15); Middle Florida (6.8%, n=10); Eastern Virginia (6.1%, n=9); Eastern Tennessee (4.8%,
n=7); Northern Georgia (4.8%, n=7); Eastern North Carolina (4.1%, n=6); Northern Texas
(4.1%, n=6); Eastern Kentucky (4.1%, n=6); Southern Florida (4.1%, n=6). 731 By contrast, 59

731

The remaining districts that reported at least one case involving convictions of multiple section 924(c) counts
were: Arizona (5), Northern Florida (5), Eastern California (4), Southern Ohio (4), Northern Alabama (3), Central
California (3), Southern Indiana (3), Maryland (3), Middle Tennessee (3), Western Tennessee (3), New Jersey (2),
Eastern New York (2), Middle Pennsylvania (2), Eastern Oklahoma (2), Southern Alabama (1), Alaska (1), Southern

277

districts each reported no cases involving multiple convictions of an offense under section
924(c), and 11 districts each reported only one such case.732 See Figure 9-3.
Figurl" 9-3
"·umber of Offenders COin-iCled of :'.Iulripll" Orfellsrs lJndrr 18 U.S.C. § 924(c)
B)· DislI"kt

Fiscal Year 2010

.......... _ = .. r:-. =,,,
'iOlJIlCE.

4.

u.s. _

e - - . >01.,....., "'-"'FY10.

Other Counts of Conviction

Of the 2,294 offenders convicted of an offense under section 924(c) in fiscal year 2010,
2,025 (88.2%) were convicted of at least one additional felony offense. The type of additional
felony offense in these cases can be determined by reference to the primary guideline provision
applicable at sentencing. Of the 2,025 offenders convicted of a least one additional felony
offense, 54.9% (n=1,112) were sentenced pursuant to §2D1.1, 29.9% (n=605) were sentenced
pursuant to §2B3.1; 6.4% (n=129) were sentenced pursuant to §2K2.1; and 2.3% (n=46) were
sentenced pursuant to §2A1.1 (First Degree Murder). The remaining 133 offenders were
sentenced pursuant to various other guideline provisions. Of the 2,025 section 924(c) offenders
convicted of additional offenses, 40.6 percent (n=823) were convicted of an additional offense
that carried a mandatory minimum penalty.
The Commission further analyzed the other counts of conviction of offenders convicted
of multiple counts of an offense under section 924(c). Of the 147 offenders convicted of
multiple counts of an offense under section 924(c) in fiscal year 2010, 128 were convicted of at
least one additional felony offense. Of those 128 offenders, 60.9% (n=78) were sentenced
Iowa (1), Western Kentucky (1), Eastern Missouri (1), New Mexico (1), Middle North Carolina (1), Western North
Carolina (1), Northern Ohio (1), Southern Texas (1), and Western Texas (1).
732

Id.

278

pursuant to §2B3.1; 17.2% (n=22) were sentenced pursuant to §2D1.1; 6.2% (n=8) were
sentenced pursuant to §2A1.1; 7.8% (n=10) were sentenced pursuant to other Chapter 2, Part A
(Offenses Against the Person) guidelines; and 2.3% (n=3) were sentenced pursuant to §2S1.1
(Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived
from Unlawful Activity).
5.

Sentence Length

In fiscal year 2010, the average sentence for offenders convicted of an offense under
section 924(c) who were subject to the mandatory minimum penalty was 182 months. The
average sentence for offenders convicted of an offense under section 924(c) but who were
relieved of the mandatory minimum penalty was 109 months. See Figure 9-4. The length of the
sentence necessarily includes both the consecutive penalty imposed for conviction of an offense
under section 924(c), as well as other counts of conviction (including offenses that served as
underlying crimes for the section 924(c) offense).
Figure 9-4
Anrage Sentence Length for Firearm Offender. COII\"irted of an
18 U.S.C. § 924(c)
Fi.~cal Year 2010

Offen.~e

Under

• NOI Subject to MM

• Subject to "HI

Mom'"

'00

'OUReR us _

" - 2010-' '-"""'FYIO.

Offenders convicted of multiple counts of an offense under section 924(c) received
sentences that were approximately twice as long as the sentences received by offenders
convicted of a single count of an offense under section 924(c). In fiscal year 2010, the average
sentence for offenders convicted of multiple counts of an offense under section 924(c) was 351
months, which was more than twice the average sentence of 151 months that offenders convicted
of a single count of an offense under section 924(c) received. The average sentence for
offenders convicted of multiple counts of an offense under section 924(c) who were relieved of
the mandatory minimum penalties was 198 months, which was nearly twice the average sentence
of 100 months received by offenders convicted of a single count of an offense under section
924(c) who were relieved of the mandatory minimum penalty.
279

Table 9-3 compares the position of sentences relative to the guideline range for all
offenders convicted of an offense under section 924(c), offenders subject to the mandatory
minimum penalties for an offense under section 924(c) at sentencing, and offenders convicted of
multiple counts of an offense under section 924(c).
Table 9-3
Position Relative to the Guideline Range of Offenders Convicted of 18 U.S.C. ' 924(c)
Fiscal Year 2010

Position Relative to the Guidelines

Convicted of
18 U.S.C. ' 924(c)

Total (# of offenders)

Subject to 18
U.S.C. ' 924(c)
at Sentencing

2,294

Convicted of
Multiple Counts
of
18 U.S.C. ' 924(c)

1,733

147

Sentence Relative to the Guideline Range (Percent)
Within Range

48.2

63.8

41.5

Above Range

4.8

6.3

1.4

24.3

0.0

36.7

3.9

5.1

2.8

18.8

24.8

17.7

Substantial Assistance '5K1.1
Other Government Sponsored (no '5K1.1)
Other Below Range

6.

Relief from the Mandatory Minimum Penalty

In fiscal year 2010, 24.3 percent of offenders convicted of an offense under section
924(c) were relieved of the mandatory minimum penalty at sentencing pursuant to 18 U.S.C.
§ 3553(e) because they rendered substantial assistance to the government. See Figure 9-5.
Offenders convicted of multiple counts of an offense under section 924(c) were relieved of the
mandatory minimum penalty at a higher rate (36.7%). Figure 9-5 presents the demographic
characteristics of offenders convicted of an offense under section 924(c) and the rates of relief
from the mandatory minimum penalty. Although there are generally only minimal differences in
the rates of relief by demographic characteristic among offenders, female offenders convicted of
an offense under section 924(c) obtained relief from the mandatory minimum penalty nearly
twice as often as male offenders (45.4% compared to 23.6%).

280

Figurf' 9-5
Pen:elll or Fil"f'arm Offendel·s Con\"icled of an Otrense t:nderlS t:.S.C. § 9H(c)
"'ho "·ere Relif'Hd or the Penal!)·
Fiscal Year 2010

PH"<~1d

100.0

".•

....
to.O
~O.O

•••

7.

"q

Guidelines Compared

To assess the effect of section 924(c)’s mandatory minimum penalties on sentencing
outcomes relative to the guidelines, the Commission undertook additional analyses comparing
the 1,112 offenders convicted of an offense under section 924(c) who were also sentenced under
§2D1.1,733 with offenders sentenced pursuant to §2D1.1 who received a 2-level enhancement
under the guidelines for possessing a dangerous weapon.734 These analyses compared the trial
rates and average sentence length for those groups of offenders.
Section 924(c) offenders who were also sentenced under §2D1.1 proceeded to trial more
often and received longer sentences than offenders who were sentenced pursuant to §2D1.1 and
received the 2-level dangerous weapon enhancement. In fiscal year 2010, 10.2 percent of section
924(c) offenders who were also sentenced under §2D1.1 proceeded to trial, compared to 5.4
percent of offenders who received the §2D1.1 dangerous weapon enhancement. Section 924(c)
offenders who were also sentenced under section §2D1.1 received an average sentence of 147
months, which was 27.8 percent longer than the average sentence of 115 months given to
offenders who received the §2D1.1 dangerous weapon enhancement.
733

Fifteen of the 1,112 offenders (1.4%) also received a 2-level enhancement under §2D1.1(b)(1). There are some
circumstances in which an offender may be convicted of an offense under section 924(c) and also receive the 2-level
enhancement under §2D1.1(b)(1), such as when the offender is also held responsible for the possession of a
dangerous weapon for an offense that was not an “underlying offense” for purposes of section 924(c). See USSG
§2K2.4, comment. (n.4) (explaining that if a sentence is imposed for conviction of an offense under section 924(c),
the court should “not apply any specific offense characteristics for possession . . . of an explosive or firearm when
determining the sentence for the underlying offense.”).

734

For additional discussion of the §2D1.1(b)(1) 2-level dangerous weapon enhancement, and for further
comparison of the enhancement to section 924(c), see supra Chapter 3.

281

Both groups of offenders, however, received sentences below the applicable guideline
range at comparable rates. Offenders convicted of an offense under section 924(c) received
below range substantial assistance sentences in 28.3 percent of cases; other government
sponsored below range sentences in 4.7 percent of cases; and other below range sentences in
21.7 percent of cases. Similarly, offenders who received the 2-level dangerous weapon
enhancement obtained below range substantial assistance sentences in 28.1 percent of cases;
other government sponsored below range sentences in 6.1 percent of cases, and other below
range sentences in 19.4 percent of cases.
The Commission further compared the racial characteristics of offenders in each group.
Of the offenders convicted of an offense under section 924(c) who were also sentenced under
§2D1.1, 607 (54.7%) were Black, 266 (24.0%) were Hispanic, 212 (19.1%) were White, and 25
(2.2%) were Other Race offenders. Of the offenders sentenced pursuant to §2D1.1 who received
a 2-level enhancement under the guidelines for possessing a dangerous weapon, 1,068 (40.8%)
were Black, 880 (33.6%) were Hispanic, 613 (23.4%) were White, and 58 (2.2%) were Other
Race offenders.
D.

MANDATORY MINIMUM PENALTIES UNDER THE ARMED CAREER CRIMINAL ACT

Of the 73,239 offenders included in this analysis, 592 (0.8%) qualified as an armed career
criminal under ACCA.735 Of those 592 offenders, 369 (62.3%) were convicted only of an
offense under 18 U.S.C. § 922(g). An additional 53 offenders who qualified as armed career
criminals under ACCA were also convicted of an offense under section 924(c).
1.

Demographic Characteristics

Table 9-4 provides the demographic characteristics of offenders who qualified as armed
career criminals under ACCA and of those offenders who were subject to ACCA’s 15-year
mandatory minimum penalty at sentencing. Table 9-5 displays information about the criminal
history categories for these groups of offenders.

735

For purposes of this chapter, the term “qualified as an armed career criminal under ACCA” means that the court
found that the 15-year mandatory minimum penalty established at 18 U.S.C. § 924(e) applied to the offender, but
does not denote whether the offender obtained relief from the mandatory minimum penalty for rendering substantial
assistance pursuant to 18 U.S.C. § 3553(e). Offenders who qualified as armed career criminals under ACCA but did
not obtain relief are “subject to” the mandatory minimum penalty. See supra Chapter 3.

282

Table 9-4
Demographic Characteristics of Offenders Subject to Armed Career Criminal Act
Fiscal Year 2010
All Offenders
Qualifying for Armed
Career Criminal
Mandatory Minimum
Penalty
Total (# of offenders)

Subject to Armed
Career Criminal
Mandatory Minimum
Penalty

592

489

Race of Offender (Percent)
White

29.5

29.1

Black

63.7

63.9

Hispanic

5.2

5.5

Other

1.5

1.4

Citizenship of Offender (Percent)
United States Citizen
Non-Citizen

98.6

98.6

1.4

1.4

Gender of Offender (Percent)
Male
Female

283

99.3

99.2

0.7

0.8

Table 9-5
Criminal History of Offenders Subject to Armed Career Criminal Act
Fiscal Year 2010
All Offenders Qualifying
for Armed Career
Criminal Mandatory
Minimum Penalty
Total (# of offenders)

Subject to Armed Career
Criminal Mandatory
Minimum Penalty

592

489

Criminal History Category (Percent)

2.

I

0.0

0.0

II

0.0

0.0

III

0.0

0.0

IV

16.7

15.1

V

11.0

11.2

VI

72.3

73.6

Guilty Pleas and Trials

Offenders who qualified as armed career criminals under ACCA were much more likely
to proceed to trial than offenders convicted of an offense carrying a mandatory minimum penalty
as a whole. Of the 592 offenders who qualified as armed career criminals under ACCA in fiscal
year 2010, 103 (17.4%) proceeded to trial, compared to 5.9 percent of all offenders convicted of
an offense carrying a mandatory minimum penalty.
3.

Geographic Variations

Cases involving offenders who qualified as armed career criminals under ACCA were
geographically concentrated in a few circuits. Of the 592 cases in fiscal year 2010 that involved
an offender who qualified as an armed career criminal under ACCA, 191 (32.3%) were from the
district courts in the Fourth Circuit and 124 (20.9%) were from the district courts in the Eleventh
Circuit. Thus, district courts in two circuits accounted for more than half of the cases that
involved an offender who qualified as an armed career criminal under ACCA. 736 By way of
comparison, 16.7 percent of all federal criminal cases reported to the Commission for fiscal year
2010 came from the district courts in those two circuits.737

736

See Table D-15 (Mandatory Minimum Status for Armed Career Criminal Offenders in Each Circuit and District
(Fiscal Year 2010)) in Appendix D of this Report.

737

See Table D-1 in Appendix D of this Report.

284

Cases involving offenders who qualified as armed career criminals under ACCA were
also geographically concentrated when viewed at the district level. In fiscal year 2010, the ten
districts with the highest number of cases involving offenders who qualified as armed career
criminals under ACCA reported 47.9 percent of all such cases. Those districts were: Middle
North Carolina (6.8%, n=40); Middle Florida (5.9%, n=35); South Carolina (5.7%, n=34);
Southern Florida (5.1%, n=30); Eastern Pennsylvania (4.6%, n=27); Maryland (4.4%, n=26);
Western Tennessee (4.2%, n=25); Eastern Tennessee (3.9%, n=23); Eastern Missouri (3.7%,
n=22); and Northern Georgia (3.6%, n=21).738 By way of comparison, those districts reported
14.1 percent of all federal criminal cases heard in fiscal year 2010.739 Fourteen districts each
reported having no cases involving an offender who qualified as an armed career criminal under
ACCA in fiscal year 2010.740 See Figure 9-6.
Figul'l" 9-6
""lImbH of Offl"ndHs SUbjl"ff to Annl"d CarHr Criminal Pro'"isioll
B\' Disfl"irt
Fi~ral Yl"aJ' 2010

,

_0'_

=""<o.~

=,,,

Cases involving offenders who qualified as armed career criminals under ACCA
constituted only a small percentage of any district’s criminal case docket. In fiscal year 2010,
only six of the 94 districts reported that more than 3.5 percent of the total criminal case docket
involved offenders who qualified as armed career criminals under ACCA: Middle
North Carolina (7.3%, n=40), Western Virginia (4.2%, n=15), Maryland (3.9%, n=26), Western
Tennessee (4.0%, n=25), Middle Tennessee (3.9%, n=11), and Massachusetts (3.8%, n=16).

738

See Table D-15 in Appendix D of this Report.

739

See Table D-1 in Appendix D of this Report.

740

See Table D-15 in Appendix D of this Report.

285

4.

Sentence Information

In fiscal year 2010, the average sentence for offenders who qualified as armed career
criminals under ACCA and who remained subject to the mandatory minimum penalty was 210
months. The average sentence for offenders who qualified as armed career criminals under
ACCA but who were relieved of the mandatory minimum penalty for rendering substantial
assistance to authorities was 122 months. See Figure 9-7.

Fi2 U1'·9-7
An'"'2' S.nt.nc. L.n2,b for Orr.nd.n Subj<'Ct to Arm.d C ...... t' C'"imina] P,"oYi,ioll
n.cal ,,"ar 1010

_Subj<'C"o ACCA

_"'01 '>ubj<'C"o ACCA

".
:;:0
:00

•
Table 9-6 provides the position of sentences relative to the guideline range for all
offenders who qualified as armed career criminals under ACCA and for those offenders still
subject to the mandatory minimum penalty at sentencing.

286

Table 9-6
Position Relative to the Guideline Range of Offenders
Subject to Armed Career Criminal Provisions
Fiscal Year 2010
All Offenders Qualifying
for Armed Career
Criminal Mandatory
Minimum Penalty

Subject to Armed Career
Criminal Mandatory Minimum
Penalty

592

489

Total (# of offenders)

Sentence Relative to the Guideline Range (Percent)
Within Range

62.8

76.1

Above Range

1.5

1.8

17.4

0.0

5.2

6.3

13.0

15.8

Substantial Assistance '5K1.1
Other Government Sponsored (no '5K1.1)
Other Below Range

5.

Relief from the Mandatory Minimum Penalty

In fiscal year 2010, 17.4 percent of offenders who qualified as an armed career criminal
under ACCA were relieved of the mandatory minimum penalty at sentencing pursuant to
18 U.S.C. § 3553(e) because they rendered substantial assistance to the government. See Figure
9-8. There were generally only minimal demographic differences in the rates of relief for those
offenders, although Hispanic offenders and non-citizen offenders received relief at slightly lower
rates than offenders in other demographic groups and United States citizen offenders,
respectively. See Figure 9-8.

287

Figurl" 9-8
PHCl"llt of Fire~nn Offendl"rs Subjen fO Armed Carel"r
Wllo Wl"l'e Reliewd Offill" Pell~It'..
Fiscal Yell!' 2010

Crimill~1 Prm"isioll

Pet~'nf

Itt.'
IU
'U
~

...

:0.'

...

~.

PRISON IMPACT

E.

The percentage of prisoners convicted of an offense under section 924(c) has remained
relatively steady over time. On September 30, 2010, of the 191,757 offenders in prison, 20,109
(10.5%) were convicted of an offense under section 924(c). Similarly, of the 71,972 offenders in
prison on September 30, 1995, 7,425 (10.3%) were convicted of an offense under section 924(c).
The percentage of prisoners qualifying as armed career criminals under ACCA has
slowly increased over time. Of the 71,972 offenders in prison on September 30, 1995, 989
(1.4%) qualified as armed career criminals under ACCA. By contrast, of the 191,757 offenders
in prison on September 30, 2010, 5,605 (2.9%) qualified as armed career criminals under ACCA.
F.

SUMMARY

With respect to mandatory minimum penalties for firearm offenses, Commission analyses
demonstrate the following:
Offenses and Offenders
•

In fiscal year 2010, 2,294 (3.1%) offenders were convicted of an offense under section
924(c). Of the 2,294 offenders convicted of an offense under section 924(c), 2,147
(93.6%) were convicted of a single count of an offense under section 924(c) and 147
(6.4%) were convicted of multiple counts of an offense under section 924(c).
o

Over two-thirds of offenders convicted of a single count of an offense under
section 924(c) were convicted of offenses carrying a five- or seven-year
mandatory minimum penalty (64.8% and 22.7%, respectively). Only 3.7% of
288

offenders convicted of a single count of an offense under section 924(c) were
convicted of offenses carrying a mandatory minimum penalty of more than ten
years of imprisonment.

•

•

o

More than half of all offenders convicted of an offense under section 924(c) were
Black (55.9%). Less than one-quarter (21.0%) were Hispanic, followed by White
(20.1%) and Other Race (3.1%) offenders. Among offenders convicted of
multiple counts of an offense under section 924(c), 61.0 percent were Black,
21.2 percent were Hispanic, 15.1 percent were White, and 2.7 percent were Other
Race.

o

The overwhelming majority of all offenders convicted of an offense under section
924(c) (97.1%) and those offenders convicted of multiple counts of an offense
under section 924(c) (99.3%) were male.

o

United States citizens accounted for over 80 percent of all offenders convicted of
an offense under section 924(c) (86.7%) and those offenders convicted of multiple
counts of an offense under section 924(c) (84.4%).

In fiscal year 2010, 592 (0.8%) offenders qualified as an armed career criminal under
ACCA.
o

More than 60 percent of the offenders who qualified as an armed career criminal
under ACCA were Black (63.7%), followed by White (29.5%), Hispanic (5.2%),
and Other Race (1.5%) offenders.

o

The overwhelming majority of offenders who qualified as an armed career
criminal under ACCA were male (99.3%).

o

United States citizens accounted for 98.6 percent of offenders who qualified as an
armed career criminal under ACCA.

Cases involving a conviction of an offense under section 924(c) or involving offenders
who qualified as armed career criminal under ACCA were geographically concentrated.
o

In fiscal year 2010, 12 districts reported 43.7 percent of the cases involving a
conviction of an offense under section 924(c) (and only five of those districts
reported having at least 100 such cases).

o

Cases involving convictions of multiple section 924(c) counts were more
geographically concentrated than cases involving a conviction of an offense under
section 924(c) as a whole. In fiscal year 2010, the ten districts that reported the
highest number of cases involving multiple convictions of section 924(c)
accounted for 62.7 percent of all such cases.

289

o

In fiscal year 2010, the ten districts with the highest number of cases involving
offenders who qualified as armed career criminals under ACCA reported 47.9
percent of all such cases.

Application and Relief
•

•

•

In fiscal year 2010, offenders convicted of an offense under section 924(c) and offenders
who qualified as armed career criminals under ACCA proceeded to trial at a higher rate
than all offenders convicted of an offense carrying a mandatory minimum penalty (5.9%).
o

Of the 2,294 offenders convicted of an offense under section 924(c), 12.8 percent
(n=293) proceeded to trial.

o

Of the 147 offenders convicted of multiple counts of an offense under section
924(c) in fiscal year 2010, 34.7 percent (n=51) proceeded to trial. Of the 2,147
offenders convicted of a single count of an offense under section 924(c), 11.3
percent (n=242) proceeded to trial.

o

Of the 592 offenders who qualified as armed career criminals under ACCA, 17.4
percent (n=103) proceeded to trial.

In fiscal year 2010, 24.3 percent of offenders convicted of an offense under section
924(c) were relieved of the mandatory minimum penalty at sentencing pursuant to 18
U.S.C. § 3553(e) because they rendered substantial assistance to the government.
o

Black, White, and Hispanic offenders convicted of an offense under section
924(c) obtained relief at comparable rates (24.7%, 24.4%, and 24.4%,
respectively), followed by Other Race offenders (17.1%).

o

Female offenders constituted only a small percentage of offenders convicted of an
offense under section 924(c), but obtained relief from the mandatory minimum
penalty at a higher rate (45.4%) than male offenders convicted of such an offense
(23.6%).

o

Non-citizen offenders convicted of an offense under section 924(c) obtained relief
from the mandatory minimum penalty at a higher rate (27.3%) than United States
citizens convicted of such an offense (23.8%).

o

Offenders convicted of multiple counts of an offense under section 924(c) were
relieved of the mandatory minimum penalty in 36.7% of the cases.

In fiscal year 2010, 17.4 percent of offenders who qualified as an armed career criminal
under ACCA were relieved of the mandatory minimum penalty at sentencing pursuant to
18 U.S.C. § 3553(e) because they rendered substantial assistance to the government.

290

•

•

In fiscal year 2010, the rate at which offenders received substantial assistance relief
varied by race, gender and citizenship.
o

Other Race offenders who qualified as armed career criminals under ACCA
obtained relief at the highest rate of any racial group (22.2%), followed by White
(18.4%), Black (17.0%), and Hispanic (12.9%) offenders.

o

Male offenders who qualified as armed career criminals under ACCA obtained
relief from the mandatory minimum penalty at a higher rate (17.5%) than
qualifying female offenders (0.0%).

o

United States citizen offenders who qualified as armed career criminals under
ACCA obtained relief from the mandatory minimum penalty at a higher rate
(17.5%) than qualifying non-citizen offenders (12.5%).

Less than half (48.2%) of all offenders convicted of an offense under section 924(c) were
sentenced within the applicable guideline range.
o

•

More than one-quarter (28.2%) of offenders convicted of an offense under section
924(c) received a government sponsored below range sentence, and 18.8 percent
received a non-government sponsored below range sentence.

Over 60 percent (62.8%) of offenders who qualified as armed career criminals under
ACCA were sentenced within the applicable guideline range.
o

Nearly one-quarter (22.6%) of offenders who qualified as armed career criminals
under ACCA received a government sponsored below range sentence, and 13.0
percent received a non-government sponsored below range sentence.

Sentencing


In fiscal year 2010, 75.5 percent of offenders convicted of an offense under section
924(c) were subject to the mandatory minimum penalty at sentencing.



In fiscal year 2010, the rate at which offenders convicted of an offense under section
924(c) were subject to the mandatory minimum penalty at sentencing varied by race,
gender and citizenship.
o

Other Race offenders were subject to the mandatory minimum penalty at
sentencing most often, in 82.9 percent of their offenses carrying such a penalty,
followed by Hispanic (75.6%) and White (75.6%) offenders. Black offenders
were subject to the mandatory minimum penalty at sentencing the least often, in
75.3 percent of their cases.

291

•

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (76.4% of their cases, compared to 54.6% of
cases involving female offenders).

o

United States citizens were subject to the mandatory minimum penalty at
sentencing more often than non-citizens offenders (76.1% of their cases,
compared to 72.7% of cases involving non-citizen offenders).

The average sentence for offenders convicted of an offense under section 924(c) who
remained subject to the mandatory minimum penalty (i.e., who did not receive relief for
rendering substantial assistance) was 182 months. The average sentence for offenders
convicted of an offense under section 924(c) but who were relieved of the mandatory
minimum penalty was 109 months. These sentences include the sentence imposed on the
underlying offenses and other counts of conviction, if any, in addition to the mandatory
minimum penalty under section 924(c).
o

The average sentence for offenders convicted of a single count of an offense
under section 924(c) was 151 months. The average sentence for offenders
convicted of a single count of an offense under section 924(c) who were relieved
of the mandatory minimum penalty was 100 months.

o

The average sentence for offenders convicted of multiple counts of an offense
under section 924(c) was 351 months. The average sentence for offenders
convicted of multiple counts of an offense under section 924(c) who were relieved
for the mandatory minimum penalties was 198 months.

•

In fiscal year 2010, 82.6 percent of offenders who qualified as armed career criminals
under ACCA were subject to the mandatory minimum penalty at sentencing.

•

In fiscal year 2010, the rate at which offenders who qualified as armed career criminals
under ACCA were subject to the mandatory minimum penalty at sentencing varied by
race, gender and citizenship.
o

Hispanic offenders were subject to the mandatory minimum penalty at sentencing
most often, in 87.1 percent of their offenses carrying such a penalty, followed by
Black (83.0%) and White (81.6%) offenders. Other Race offenders were subject
to the mandatory minimum penalty at sentencing the least often, in 77.8 percent
of their cases.

o

Female offenders were subject to the mandatory minimum penalty at sentencing
more often than male offenders (100.0% of their cases, compared to 82.5% of
cases involving male offenders).

o

Non-citizens were subject to the mandatory minimum penalty at sentencing more
often than United States citizen offenders (87.5% of their cases, compared to
82.5% of cases involving United States citizen offenders).
292

•

The average sentence for offenders who qualified as armed career criminals under ACCA
and who were subject to the mandatory minimum penalty (i.e., who did not receive relief
for rendering substantial assistance) was 210 months. The average sentence for offenders
who qualified as armed career criminals under ACCA but who were relieved of the
mandatory minimum penalty was 122 months.

Prison Impact
•

At the end of fiscal year 2010, 10.5 percent of the offenders in the custody of the Bureau
of Prisons were convicted of an offense under section 924(c). The percentage of
prisoners convicted of an offense under section 924(c) has remained relatively steady
over time, constituting 10.3 percent of the federal prison population at the end of fiscal
year 1995.

•

At the end of fiscal year 2010, 2.9 percent of the offenders in the custody of the Bureau
of Prisons qualified as armed career criminals under ACCA. The percentage of prisoners
who so qualified has slowly increased over time, rising from 1.4 percent of the federal
prison population at the end of fiscal year 1995.

293

294

Chapter 10

MANDATORY MINIMUM PENALTIES FOR
SEX OFFENSES
A.

INTRODUCTION

This chapter analyzes the application of mandatory minimum penalties for federal sex
offenses. First, this chapter provides an overview of the statutory scheme and the applicable
sentencing guideline provisions. Second, this chapter provides a general statistical overview of
sex offenders with a focus on such offenders convicted of offenses carrying a mandatory
minimum penalty. Third, this chapter considers the general effect of mandatory minimum
penalties on sentences for sex offenders and, in particular, presents relevant findings of the
Commission’s special coding project concerning a random sample of child pornography cases
from fiscal year 2010. Finally, this chapter sets forth findings with respect to mandatory
minimum penalties and sex offenses.
As used in this chapter, the term “sex offenses” refers to cases in which the primary
sentencing guideline was in either: (1) Chapter 2, part A, subpart 3 (which concerns sexual
abuse and sexual contact offenses victimizing adults or minors), excluding failure to register
offenses;741 or (2) Chapter 2, part G (which concerns promotion of illegal sex acts involving an
adult or minor, offenses involving travel to engage in an illegal sexual act, and child
pornography offenses), excluding obscenity offenses not cross-referenced to the child
pornography guidelines.742
In addition, for purposes of this chapter, federal sex offenses are divided into two types:
(1) sexual abuse (also called “contact”) offenses, i.e., those offenses involving actual or
attempted sexual contact with the victim regardless of the victim’s age; and (2) child
pornography (other than an offense related to the production of pornography depicting an actual
child, which is deemed a “contact” offense).743 Some parts of the analysis in this chapter
aggregate both types of sex offenses; however, more often the analysis is divided according to
the two types of sex offenses. Such bifurcation is appropriate because, as discussed below,
sexual abuse cases involve actual or intended sexual contact with a victim, while child
pornography offenses concern the possession, receipt, transportation, or distribution of sexuallyoriented images of children.

741

Such offenses are sentenced under USSG §§2A3.5 (Failure to Register as a Sex Offender) and 2A3.6
(Aggravated Offenses Relating to Registration as a Sex Offender).

742

Such obscenity offenses are sentenced under USSG §§2G3.1 (Importing, Mailing, or Transporting Obscene
Matter; Transferring Obscene Matter to a Minor; Misleading Domain Names) and 2G3.2 (Obscene Telephone
Communications for a Commercial Purpose; Broadcasting Obscene Material).

743

A similar bifurcation of federal sex offenses appears in the Commission’s 2010 Sourcebook of Federal
Sentencing Statistics at 12 (Table 3); see also id. at 166–67 (definitions of “sexual abuse” and “child pornography”
as “primary offense categories”).

295

B.

OFFENSES AND RELATED GUIDELINES
1. Federal Sex Offenses
a. Sexual abuse offenses

The vast majority of federal sexual abuse offenses are found in Chapters 109A and 117 of
Title 18 of the United States Code. A handful of other sexual abuse offenses, including offenses
related to the production of child pornography, are found in other parts of the United States
Code.744 Congress has provided for mandatory minimum terms of imprisonment for many
sexual abuse offenses, including the majority of such offenses that involve the victimization or
attempted victimization of minors. Mandatory minimum terms exist for violations of the
following sections of Title 18:
•

§ 1591(b)(1) and (2) (minimum ten- or 15-year term for sex trafficking of a minor
depending on the age of the victim);

•

§ 2241(c) (minimum 30-year term for traveling across state lines with the intent to
have sex with a child under 12 years of age or for crossing state lines and having sex
with a child between the ages of 12 and 16 under certain aggravating circumstances);

•

§§ 2251(e) and 2260(c)(1) (minimum term of 15 years for production of child
pornography and enhanced minimum terms if such a defendant has a prior felony
conviction for an enumerated sex offense);745

•

§ 2251A(a) & (b) (minimum term of 30 years for buying or selling, or otherwise
transferring, children for the purpose of participating in the production of child
pornography);

•

§ 2422(b) (minimum term of ten years for using mails or facilities or means of
commerce to cause a minor to engage in prostitution or other criminal sexual
activity);

744

See, e.g., 18 U.S.C. §§ 1591 (sex trafficking of children by fraud, force, or deception) and 2251 & 2251A
(offenses related to production of child pornography).

745

Advertising for the exchange of completed child pornography in violation of § 2251(d)(1) also is subject to a 15year mandatory minimum penalty, yet it is punished under USSG §2G2.2 rather than USSG §2G2.1. See USSG
App. A. Conversely, advertising that seeks “participation” in the production of child pornography, which also is
subject to a 15-year mandatory minimum penalty, is governed by USSG §2G2.1. See USSG App. A. The latter is
deemed a “sexual abuse” offense for purposes of this chapter, while the former is deemed a “child pornography”
offense.
If a defendant has a prior federal or state conviction for one of the enumerated sex offenses, the penalty
range for production or advertising increases to a mandatory minimum term of 25 years and a maximum term of 50
years of imprisonment. If a defendant has a prior federal or state conviction for two or more enumerated sex
offenses, the penalty range for production increases to a mandatory minimum term of 35 years and a maximum
term of life imprisonment. See 18 U.S.C. §§ 2251(e) & 2260(c)(1).

296

•

§ 2423(a) (minimum term of ten years for transporting a minor in commerce for the
purpose of engaging in prostitution or other criminal sexual activity); and

•

§ 3559(e) (mandatory life imprisonment for second conviction for certain sex
offenses again minors).746

Many of the other sexual abuse offenses in Chapters 109A and 117 that do not carry mandatory
minimum penalties outlaw similar conduct where the victim is an adult.747
b. Child pornography offenses748
Federal law broadly prohibits a variety of acts related to the distribution,749 transportation
(including by shipping or mailing),750 importation, receipt, and possession of child pornography,
including attempted acts and conspiracies to commit such acts.751 The four primary types of
offenses (distribution, transportation, receipt, and possession) are set forth in Chapter 110 of
746

Section 3559(e) is a rarely used statute. Only one offender was sentenced to life imprisonment under that statute
in fiscal year 2010.

747

See, e.g., 18 U.S.C. § 2242 (providing for a fine and/or term of imprisonment of “any term of years or for life”
for sexual abuse of an adult victim); 18 U.S.C. § 2422(a) (providing for a term of imprisonment of “not more than
20 years” for causing an adult to travel in interstate or foreign commerce in order to engage in prostitution or other
illegal sexual activity).

748

See 18 U.S.C. § 2256(8) (defining “child pornography” as “visual depiction” of a minor “engaging in sexually
explicit conduct”). “Sexually explicit conduct” encompasses various sexual conduct, including sexual intercourse,
oral and anal sex, masturbation, bestiality, and the “lascivious exhibition of the genitals or pubic area.” 18 U.S.C.
§ 2256(2). Federal statutes outlawing obscenity – primarily 18 U.S.C. §§ 1462, 1466, and 1466A – also prohibit
certain acts related to photographic and non-photographic visual representations of minors engaged in “sexually
explicit conduct.” Such offenses, if they involve the obscene depiction of minors rather than adults, are subject to
the guidelines’ child pornography provisions rather than the obscenity provisions. See, e.g., USSG §2G3.1(c).

749

Sections 2252 and 2252A use not only the term “distribute” but also the term “sell,” thus, broadly encompassing
any type of transmission of child pornography to another, both electronic and non-electronic distribution and both
commercial or non-commercial distribution. See, e.g., 18 U.S.C. §§ 2252(a)(1), (a)(3) & 2252A(a)(1), (a)(4)(B). In
addition, §§ 2252, 2252A and 2260(b) each prohibit the possession of child pornography with the intent to distribute
it (in different circumstances). See 18 U.S.C. §§ 2252(a)(3)(B), 2252A(a)(4)(B), & 2260(b). The sentencing
guideline provisions related to child pornography use the terms “trafficking” and “distribution” interchangeably.
See, e.g., USSC §2G2.2(b)(1). For simplicity’s sake, this report will use the term “distribute” to refer to all types of
distribution (as well as possession with the intent to distribute). Cf. 21 U.S.C. § 841(a)(2) (treating distribution of
drugs and possession with intent to distribute drugs as equivalents).

750

The transportation of child pornography proscribed by statute does not require that the defendant intended to
distribute it to another person. See, e.g., United States v. Fore, 507 F.3d 412, 415 (6th Cir. 2007); United States v.
Burgess, 576 F.3d 1078, 1102 (10th Cir. 2009). However, as explained below, unlike simple possession,
transportation of child pornography (including shipping or mailing) is punished with a five-year mandatory
minimum prison sentence.

751

See 18 U.S.C. §§ 2251(e), 2252(b), 2252A(b), and 2260(c). Section 2252 concerns child pornography depicting
an actual minor, while section 2252A concerns child pornography depicting a computer-generated image
“indistinguishable from that of” an actual minor “engaging in sexually explicit conduct” or modified “to appear that
an identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. §§ 2252A and 2256(8)(B) & (C).

297

Title 18 of the United States Code at 18 U.S.C. §§ 2251, 2252, 2252A, and 2260. The statutes
prohibit distribution, shipping, and transportation of child pornography regardless of whether
such activities have a commercial or non-commercial purpose (e.g., exchanging child
pornography through “peer-to-peer” Internet file-sharing programs).752 The offense of receipt
requires a defendant’s knowledge that he is coming into possession of child pornography at the
time that the image is received.753 That a defendant knowingly possesses child pornography – a
lesser-included offense of receipt – does not necessarily mean that the defendant previously
knowingly received it.754 An additional statute, 18 U.S.C. § 1466A, prohibits possession,
receipt, distribution, and production of “obscene visual representations of the sexual abuse of
children”; its violation is considered a child pornography offense.755
The statutory penalty ranges for violations of these provisions vary in severity depending
on both the act involved and the defendant’s prior criminal record. Violations of section 1466A
involving receipt, distribution, or production of “obscene visual representations of the sexual
abuse of children” carry a mandatory minimum penalty of five years of imprisonment and a
maximum of 20 years of imprisonment, while violations of section 1466A involving simple
possession of such obscene material carry no mandatory minimum penalty and have a statutory
maximum of ten years of imprisonment.756
Simple possession of child pornography is punishable by up to ten years in federal prison
but – unlike the other offenses involving actual child pornography757 – does not carry a
mandatory minimum term of imprisonment.758 If a defendant has a prior federal or state
conviction for one or more enumerated sex offenses,759 however, the penalty range for simple

752

See United States v. Holston, 343 F.3d 83, 85-86 (2d Cir. 2003); see also United States v. Williams, 553 U.S.
285, 296 (2008) (“[I]n much Internet file sharing of child pornography each participant makes his files available for
free to other participants.”).

753

See, e.g., United States v. Meyers, 355 F.3d 1040, 1042 (7th Cir. 2004).

754

See, e.g., United States v. Ehle, 640 F.3d 689, 698 (6th Cir. 2011).

755

See USSG App. A (referring violations of 18 U.S.C. § 1466A to USSG §2G2.2).

756

18 U.S.C. § 1466A(a) & (b).

757

“Morphing” offenses – which do not involve actual child pornography – do not carry mandatory minimum
penalties. See 18 U.S.C. § 2252A(a)(7), (b)(3). In addition, on rare occasions, a defendant convicted of an
obscenity offense other than 18 U.S.C. § 1466A that does not carry mandatory minimum penalty (e.g., 18 U.S.C. §
1462) will be cross-referenced to §2G2.2 under §2G3.1(c)(1) because the obscene matter was in fact actual child
pornography. In such a case, a defendant may have engaged in conduct that, if charged under the child pornography
statutes, would have carried a mandatory minimum penalty (e.g., transportation or distribution of obscene matter
that qualified as child pornography). However, because it was charged as an obscenity offense rather than a child
pornography offense, it does not carry a mandatory minimum penalty.
758

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

759

Such enumerated sex offenses include prior convictions for sex trafficking of children, obscenity offenses,
sexual abuse of adults or children, and child pornography offenses. 18 U.S.C. § 2252(b)(2).

298

possession increases to a mandatory minimum term of ten years and a maximum term of 20
years of imprisonment.760
Transportation (including mailing or shipping), receipt, distribution, and possession with
the intent to distribute or sell child pornography offenses each carry a mandatory minimum term
of five years of imprisonment and a maximum term of 20 years.761 If a defendant has a prior
federal or state conviction for one or more enumerated sex offenses, however, the penalty range
increases to a mandatory minimum term of 15 years and a maximum term of 40 years of
imprisonment.762 Section 2252A(b)(3) provides a separate punishment range of up to 15 years in
prison for production (as well as distribution) of a “morphed” image of an actual, identifiable
minor appearing to engage in sexually explicit conduct. No statutory mandatory minimum
applies to this offense.
2. Related Guidelines
a. Sexual abuse offenses
The sentencing guidelines for sexual abuse offenses are contained in Chapter 2, part A,
subpart 3 of the Guidelines Manual, as well as in section 2G2.1, which addresses offenses related
to production of child pornography. Like the penal statutes governing sexual abuse offenses, the
relevant guidelines cover a wide variety of conduct involving both adult and minor victims.763
b. Child pornography offenses
The sentencing guideline for child pornography offenses other than production is §2G2.2
(Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting,
Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor;
760

See id. In fiscal year 2010, 878 offenders were convicted of possession of child pornography. Offenders were
so classified by having a base offense level of 18 under USSG §2G2.2. Of the 878 offenders convicted of
possession, 6.8% (n=60) were subject to mandatory minimum ten-year prison sentences under 18 U.S.C.
§§ 2252(b)(2) and 2252A(b)(2) based on prior convictions for sex offenses. The remaining 93.2% of offenders
(n=827) who were convicted of possession were not subject to a mandatory minimum penalty and faced a maximum
term of imprisonment of ten years under §§ 2252(b)(2) and 2252A(b)(2).

761

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

762

See id.

763

The relevant provisions are §§2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse),
2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit
Such Acts), 2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts), 2A3.4 (Abusive Sexual
Contact or Attempt to Commit Abusive Sexual Contact), 2G1.1 (Promoting a Commercial Sex Act or Prohibited
Sexual Conduct with an Individual Other than a Minor), 2G1.3 (Promoting a Commercial Sex Act or Prohibited
Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual
Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of
Children; Use of Interstate Facilities to Transport Information about a Minor), and 2G2.1 (Sexually Exploiting a
Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in
Sexually Explicit Conduct; Advertisement for Minors to Engage in Production).

299

Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic;
Possessing Material Involving the Sexual Exploitation of a Minor). The Commission’s 2009
report, The History of the Child Pornography Guidelines, details the evolving nature of the child
pornography guidelines during the past three decades.764 As noted in that report:
For more than 30 years, and particularly in recent years, Congress has focused
attention on the scope of child pornography offenses and the severity of penalties for
child pornography offenders. Through creating new offenses, enacting new mandatory
minimums, increasing statutory maximums, and providing directives to the Commission,
Congress has repeatedly expressed its will regarding appropriate penalties for child
pornography offenders. Congress has specifically expressed an intent to raise penalties
associated with certain child pornography offenses several times through directives to the
Commission and statutory changes aimed at increasing the guideline penalties and
reducing the incidence of downward departures.765
Certain other guidelines contain cross-references to §2G2.2 if relevant conduct in the
case included possession, transportation, receipt, or distribution of child pornography – including
§2G3.1(c) (Importing, Mailing, or Transporting Obscene Matter; Transferring Obscene Matter to
a Minor; Misleading Domain Names).
C.

STATISTICAL OVERVIEW

Sex offenses constitute a small percentage of federal criminal cases. Of the 73,239
federal cases in fiscal year 2010 included in this analysis, just 3.2 percent (n=2,317) involved sex
offenses. Of those 2,317 cases, 72.4 percent (n=1,677) were child pornography cases, while 27.6
percent (n=640) were sexual abuse cases. Of the total number of sex offense cases, 50.8 percent
(n=1,176) involved a conviction of an offense that carried a mandatory minimum penalty, which
represented only 1.6 percent of all federal criminal cases.
Although sex offenses have always been a small percentage of the federal criminal
docket, the number of defendants convicted of sex offenses carrying a mandatory minimum
penalty – both sexual abuse offenses and child pornography offenses – has increased
significantly during the past decade, as demonstrated in Figure 10-1. Before 2001, a small
fraction of defendants convicted of sex offenses were convicted of offenses that carried a
mandatory minimum penalty. Of the 59,882 offenders for whom the Commission received
sentencing information in fiscal year 2001, 733 were sex offenders, only 39 of whom (5.3%)
were convicted of an offense carrying a mandatory minimum penalty. By fiscal year 2006, there
were 1,471 sex offenders, 584 of whom (39.7%) were convicted of an offense that carried a
mandatory minimum penalty. By fiscal year 2008, there were 2,017 sex offenders, 924 of whom
(45.8%) were convicted of an offense that carried a mandatory minimum penalty.766
764

See U.S. SENT’G COMM’N, THE HISTORY OF THE CHILD PORNOGRAPHY GUIDELINES (2009).

765

Id. at 6.

766

The increase in the number of sex offenders convicted of an offense carrying a mandatory minimum penalty is
partly explained by the fact that, before the PROTECT Act was enacted in 2003, trafficking and receipt of child
pornography did not carry mandatory minimum penalties. See Chapter 2, supra.

300

Figure 10-1 shows that the number of both sexual abuse cases and child pornography
cases involving convictions for offenses carrying mandatory minimum penalties has increased as
a percentage of the overall sex offense caseload. In fiscal year 2010, 50.1 percent of all child
pornography cases (840 of 1677 child pornography cases) and 52.5 percent of sexual abuse cases
(336 of 640 sexual abuse cases) involved convictions carrying mandatory minimum penalties.
Of the 837 child pornography cases involving convictions not carrying a mandatory minimum
penalty, 98.1 percent (821 of 837) were convictions for simple possession of child pornography
under 18 U.S.C. §§ 2252(a)(4) or 2252A(a)(5).
HEun 10-1
Suu"1 .-\bu,.IPOI"nOE,'aphy orrolldo", Com-irled of "n orron,. Cal'l'yiuE a
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A discussion of several statistical analyses of federal sex offenses carrying mandatory
minimum penalties – using the 73,239 offenders included in the analysis for this Report – is set
forth below.
1.

Demographic Characteristics of Sex Offenders

Table 10-1 presents the demographic characteristics of sexual abuse offenders in fiscal
year 2010. The table also compares the demographic characteristics of four groups of sexual
abuse offenders: (1) all sexual abuse offenders, including those not convicted of an offense
carrying a mandatory minimum penalty; (2) those convicted of an offense carrying a mandatory
minimum penalty; (3) those convicted of an offense carrying a mandatory minimum penalty who
were relieved from the mandatory minimum penalty because of substantial assistance; and (4)
those convicted of an offense carrying a mandatory minimum who remained subject to that
penalty at the time of sentencing because they did not qualify for relief based on substantial
assistance. Table 10-2 contains comparable information about child pornography offenders. As
demonstrated in these two tables, the most notable difference between the two types of sex
offenders is that sexual abuse offenders include substantially more non-white offenders (22.5%
301

Other Race offenders, typically Native American offenders), compared to child pornography
offenders (who are 89.0% White).
Table 10-1
Demographic Characteristics of Sexual Abuse Offenders
Fiscal Year 2010

Demographics
Total (# of offenders)

Convicted of an
Offense Carrying a
Mandatory
Minimum Penalty

All Offenders
640

Relieved of
Application of
Mandatory
Minimum Penalty

336

Subject to a
Mandatory
Minimum Penalty
at Sentencing

14

322

Race of Offender (Percent)
White

55.2

76.4

50.0

77.6

Black

12.5

11.9

35.7

10.9

9.7

8.7

7.1

8.7

22.5

3.0

7.1

2.8

Hispanic
Other

Citizenship of Offender (Percent)
United States Citizen
Non-Citizen

93.4

94.9

100.0

94.7

6.6

5.1

0.0

5.3

Gender of Offender (Percent)
Male
Female

94.2

97.9

85.7

98.4

5.8

2.1

14.3

1.6

302

Table 10-2
Demographic Characteristics of Child Pornography Offenders
Fiscal Year 2010

Demographics
Total (# of offenders)

All Offenders

Convicted of an
Offense Carrying a
Mandatory
Minimum Penalty

Relieved of
Application of
Mandatory
Minimum Penalty

Subject to a
Mandatory
Minimum Penalty
at Sentencing

840

35

805

1,677

Race of Offender (Percent)
White

89.0

88.2

91.4

88.0

Black

2.8

3.2

0.0

3.4

Hispanic

6.2

6.4

5.7

6.5

Other

2.0

2.2

2.9

2.1

Citizenship of Offender (Percent)
United States Citizen
Non-Citizen

97.4

97.9

100.0

97.8

2.6

2.1

0.0

2.2

Gender of Offender (Percent)
Male
Female

99.4

99.4

100.0

99.4

0.6

0.6

0.0

0.6

Tables 10-3 and 10-4 present information about the criminal histories of those groups of
offenders. The vast majority of sex offenders – both sexual abuse and child pornography
offenders – had no prior criminal record at the time they were sentenced and only a very small
percentage were in Criminal History Categories IV through VI. See Tables 10-3 & 10-4.

303

Table 10-3
Criminal History of Sexual Abuse Offenders
Fiscal Year 2010

Criminal History
Category
Total (# of offenders)

All
Offenders

Convicted of an
Offense Carrying a
Mandatory
Minimum Penalty

640

336

Relieved of
Application of
Mandatory
Minimum
Penalty

Subject to a
Mandatory
Minimum Penalty at
Sentencing

14

322

Criminal History Category (Percent)
I

69.8

69.6

64.3

69.9

II

10.3

8.0

21.4

7.5

III

8.4

8.9

0.0

9.3

IV

3.3

2.7

0.0

2.8

V

5.0

6.9

7.1

6.8

VI

3.1

3.9

7.1

3.7

Table 10-4
Criminal History of Child Pornography Offenders
Fiscal Year 2010

Criminal History
Category
Total (# of offenders)

All
Offenders

Convicted of a
Statute Carrying a
Mandatory
Minimum Penalty

1,677

840

Relieved of
Application of
Mandatory
Minimum Penalty

Subject to a
Mandatory
Minimum Penalty at
Sentencing

35

805

Criminal History Category (Percent)
I

81.9

77.0

91.4

76.4

II

7.9

9.6

2.9

9.9

III

6.0

8.0

2.9

8.2

IV

2.4

3.2

2.9

3.2

V

0.9

1.3

0.0

1.4

VI

0.8

0.8

0.0

0.9

2. Guilty Pleas and Trials
Sex offenders convicted of an offense carrying a mandatory minimum penalty – both
sexual abuse offenders and child pornography offenders – proceeded to trial more often than sex
304

offenders who were not convicted of an offense carrying a mandatory minimum penalty. In
fiscal year 2010, the trial rate for such sexual abuse offenders was 15.2 percent – more than
twice the rate for sexual abuse offenders not convicted of an offense carrying a mandatory
minimum penalty (6.9%). In fiscal year 2010, the trial rate for child pornography offenders
convicted of an offense carrying a mandatory minimum penalty was 6.4 percent – four times the
rate for child pornography offenders not convicted of an offense carrying a mandatory minimum
penalty (1.6%).
3.

Geographic Variations

A majority of federal convictions of a sexual abuse offense carrying a mandatory
minimum penalty occurred in the district courts in four of the 12 federal circuits. Of the 336
cases in fiscal year 2010 that involved a conviction of a sexual abuse offense carrying a
mandatory minimum penalty, 50 (14.9%) were from districts within the Eleventh Circuit, 43
each (12.8%) were from districts within the Sixth and Ninth Circuits, and 38 (11.3%) were from
districts within the Eighth Circuit.767 Thus, 51.8 percent (n=174) of the 336 cases involving a
conviction for a sexual abuse offense carrying a mandatory minimum penalty came from those
four circuits. By way of comparison, 42.4 percent of all federal criminal cases in fiscal year
2010 came from those four circuits.768
A majority of the convictions of a child pornography offense carrying a mandatory
minimum penalty likewise occurred in the district courts within the same four circuits. Of the
840 cases in fiscal year 2010 that involved a conviction of a child pornography offense carrying
a mandatory minimum penalty, 130 (15.5%) were from districts within the Ninth Circuit, 122
(14.5%) were from districts within the Eleventh Circuit, 118 (14.0%) were from districts within
the Sixth Circuit, and 100 (11.9%) were from districts within the Eighth Circuit. Thus, 56.0
percent (n=470) of the 840 cases involving a conviction for a child pornography carrying a
mandatory minimum penalty came from those four circuits.769 As noted, 42.4 percent of all
federal cases sentenced in fiscal year 2010 came from those four circuits.
With respect to differences among the 94 districts, federal sexual abuse prosecutions
occurred most often in Southern Florida (n=16, 0.7% of all cases sentenced in the district),
Northern New York (n=11, 2.5%), Eastern California (n=10, 1.0%), and Northern Georgia
(n=10, 1.5%). These four districts together accounted for 14.0 percent of all federal sexual abuse
cases.770 Nevertheless, no district had more than 50 sexual abuse offenses. See Figure 10-2.

767

See Table D-16 (Mandatory Minimum Status for Sexual Abuse Offenders in Each Circuit and District (Fiscal
Year 2010)) in Appendix D of this Report.

768

See Table D-1 (Mandatory Minimum Status of Cases in Each Circuit and District (Fiscal Year 2010) in
Appendix D of this Report.

769

See Table D-17 (Mandatory Minimum Status for Child Pornography Offenders in Each Circuit and District
(Fiscal Year 2010)) in Appendix D of this Report.

770

See Table D-16 in Appendix D of this Report.

305

nlur~ 10-2
:" ulDb~l" of SUlla] Abus~ Offend... C",,,-irt~d of all
:\I.ndato..," :\IinimllID Pen.try"
b~· Dis""ic'
n.ul \".... ~OIO

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Child pornography cases were also more concentrated in a few of the 94 districts, with
the largest numbers occurring in Eastern Virginia (n=39, 3.2% of all cases sentenced in the
district), Middle Florida (n=34, 2.0%), Southern Florida (n=30, 1.4%), Southern Indiana (n=28,
8.6%), and Western Texas (n=27, 0.4%). These districts together accounted for 18.8 percent of
all child pornography cases771 and 16.3 percent of all federal criminal cases.772 As was the case
with sexual abuse offenses, however, no district reported more than 50 child pornography cases.
See Figure 10-3.

771

See Table D-17 in Appendix D of this Report.

772

Id.

306

Fi2ur.lO-3
:"umb.," of Cbild POl'n02rapb)" Offend ..., Con,"irt.d of an Offen,. CIlTyin2 a
:\Iandatory :\Iinimum Penalry"
b~" Dim'iel
Fi,u[ Yeor 1010

_ .. -

4.

= .. "- =,'"

Relief from the Mandatory Minimum Penalty

In fiscal year 2010, the overwhelming majority of offenders convicted of an offense
carrying a mandatory minimum penalty – both sexual abuse offenders and child pornography
offenders – were ultimately subject to that penalty at sentencing because they did not obtain
relief under 18 U.S.C. § 3553(e) based on substantial assistance to the government. See Figures
10-4 and 10-5. Of the 336 sexual abuse defendants convicted of an offense carrying a mandatory
minimum penalty, Black offenders (12.5%, n=5), Other Race offenders (10.0%, n=1) and female
offenders (28.6%, n=2) were more likely to be relieved from the mandatory minimum penalty
than members of other demographic groups. This number of cases is too small, however, to
draw any meaningful conclusions about the role of race, gender, or citizenship as it relates to
relief from the mandatory minimum penalty.773

773

In fiscal year 2010, there were 40 Black offenders, ten Other Race offenders, and seven female offenders
convicted of a sexual abuse offense that carried a mandatory minimum sentence.

307

Figurr 10~4
PrlTrnl or Sf'};u:d Abusr OlTrDdrrsCoD\;["lffl or lin OffruSt' Car~;ug a
:'IlandaIOI~' :\Jiuimum PrDal~' Who 'Yrl'f' Rrlir\'f'd orthr PrDal~'
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The vast majority of the 840 child pornography defendants convicted of an offense
carrying a mandatory penalty were White (88.0%, n=739), male (99.4%, n=835), and U.S.
citizens (97.9%, n=822). No Black, female, or non-citizen offenders obtained relief from the
operation of the mandatory minimum penalties. However, the number of each of those groups of
child pornographers was so small that no meaningful conclusions can be drawn about the role of
race, gender, or citizenship as it relates to substantial assistance relief.774

774

In fiscal year 2010, there were 27 Black offenders, 5 female offenders, and 18 non-citizen offenders convicted of
a child pornography offense that carried a mandatory minimum sentence.

308

Pl"rcenl of Cliild

Fignl't' 10-5
COllvictl"d of all Offense Cal'l'~'illg a
Penalty 'Vlio 'Yl"re Rl"lil"wd of fill" Penal~'
Fiscal Yl"ar 2010

Porllograpil~' Offenders

l\'landatol~'l\Iillimllm

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SENTENCING OUTCOMES
1. Sentencing Outcomes Generally in Sex Offense Cases
a. Average sentence length

In considering the effect of mandatory minimum penalties on sentencing outcomes for
sex offenders, the Commission compared the average length of sentences imposed on sex
offenders not convicted of an offense carrying a mandatory minimum penalty, sex offenders
relieved from application of a mandatory minimum penalty because of substantial assistance, and
sex offenders who remained subject to the mandatory minimum penalty at sentencing.
An analysis of the length of sentences imposed on each type of sex offender shows that
the average sentences were highest for offenders convicted of an offense carrying a mandatory
minimum penalty who remained subject to that penalty at sentencing. The average sentence for
those sexual abuse offenders who remained subject to a mandatory minimum penalty (235
months) was substantially higher than the average sentence for sexual abuse offenders not
convicted of an offense carrying a mandatory minimum penalty (73 months) and sexual abuse
offenders relieved from application of a mandatory minimum penalty (139 months). See Figure
10-6.

309

Figure 10-6
Average Selllellce Lellgl Ii

b~' l\'lalldatol~' l\Iinimllm

Statm for Sexual Abuse Offenders

Fiscal Year 2010
.:"0

~1"nd'IOIT MinimulB

."·'H Subj""f to U\I

:'.Iomb,

'"
'"
.w

."

, l..£::::
'OUM1:.

u.s. ' " - c_ _ "'0 DDlIlo. "''''lY'O.

The average sentence for those child pornography offenders subject to a mandatory
minimum penalty (132 months) was higher than the average sentence for child pornography
offenders not convicted of an offense carrying a mandatory minimum penalty (54 months)775 and
child pornography offenders relieved from application of a mandatory minimum penalty (121
months). See Figure 10-7.

775

As noted above, of the 837 child pornography cases involving convictions not carrying a mandatory minimum
penalty, 98.1% (821 of 837) were convictions for simple possession of child pornography under 18 U.S.C.
§§ 2252(a)(4) or 2252A(a)(5).

310

Figure 10-7
An"l'agl" Sl"n1l"UCl" Ll"ugtb b~' jUalldatol~' :\Iillimum Statm fol'
Child Poruogra(lb~'Offl"lldl"l'S
Fiscal YeaI' 2010
• "'0 Mandatory Minimum

• Subjf<'f 10 :\DI

• "'01 SUbjKllO :\DI

MOUfb,

'"'
250

'"'
150

'"'
"
SOUIlCL

u.s. ' " - c_ _

>0,.

""",,","'<;elYlO.

b. Sentences relative to the applicable guideline range
Table 10-5 compares the position of the sentence relative to the guideline range in sexual
abuse cases. Table 10-5 demonstrates that most sexual abuse offenders are sentenced within the
guideline range regardless of whether a mandatory minimum penalty applied. The departure and
variance rates were similar when comparing all sexual abuse offenders in the aggregate to the
subsets of sexual abuse offenders who were convicted of offenses carrying a mandatory
minimum penalty and those who remained subject to the mandatory minimum penalty at
sentencing.

311

Table 10-5
Position Relative to the Guideline Range of Sexual Abuse Offenders
Fiscal Year 2010

All
Offenders
Total (# of offenders)

Convicted of an
Offense
Carrying a
Mandatory
Minimum Penalty

640

Relieved of
Application of
Mandatory
Minimum
Penalty

336

Subject to a
Mandatory
Minimum
Penalty at
Sentencing

14

322

Sentence Relative to the Guideline Range (Percent)
Within Range

60.2

63.7

0.0

66.5

Above Range

5.9

5.9

0.0

6.2

Substantial Assistance '5K1.1

4.5

4.2

100.0

0.0

Other Government Sponsored
(no '5K1.1)

11.6

8.9

0.0

9.3

Other Below Range

17.8

17.3

0.0

18.0

Table 10-6 compares the position of sentences relative to the guideline range of child
pornography offenders in the aggregate as well as the child pornography offenders convicted of
an offense carrying a mandatory minimum penalty, child pornography offenders relieved from
application of a mandatory minimum penalty because of substantial assistance, and child
pornography offenders who remained subject to the mandatory minimum penalty at sentencing.
As demonstrated in Table 10-6, courts imposed within-range sentences less frequently in child
pornography cases compared to sexual abuse cases. Furthermore, the downward
departure/variance rate in child pornography cases is higher than the rate in any of the other
major offense types.776
Table 10-6 also demonstrates that the vast majority of all government-sponsored
departures and variances were not based on a defendant’s substantial assistance to the
government. Only 3.0 percent of all child pornography offenders received a departure based on
substantial assistance – in contrast to 10.4 percent who received a government-sponsored
departure or variance for some other reason.

776

U.S. SENT’G COMM’N, THE HISTORY OF THE CHILD PORNOGRAPHY GUIDELINES 54 (2009). See generally
Chapters 8 and 9, supra, and Chapter 11, infra, for the downward departure/variance rate for the offense types
discussed in this report.

312

Table 10-6
Position Relative to the Guideline Range of Child Pornography Offenders
Fiscal Year 2010

All
Offenders

Total (# of offenders)

Convicted of an
Offense
Carrying a
Mandatory
Minimum Penalty

1,677

Relieved of
Application of
Mandatory
Minimum
Penalty

840

Subject to a
Mandatory
Minimum
Penalty at
Sentencing

35

805

Sentence Relative to the Guideline Range (Percent)
Within Range

39.8

42.5

0.0

44.4

Above Range

2.0

2.1

0.0

2.2

Substantial Assistance '5K1.1

3.0

4.2

100.0

0.0

Other Government Sponsored
(no '5K1.1)

10.4

9.2

0.0

9.7

Other Below Range

44.8

41.9

0.0

43.7

Figures 10-8 and 10-9 show the impact on sentences for sexual abuse offenders from
substantial assistance departures and from non-substantial assistance below range sentences.
These figures compare the average guideline range minimum to the average sentence imposed on
offenders sentenced from fiscal year 2005 to 2010.

313

Figure 10-8
Average Guideline Minimum and Average Sentence fOl' Offenders Comicted of an Offense
Cal'l'ying a Sexual Abuse Mandatory Minimum Penalf)'
Substantial Assistance Offenders
Fiscal Years 2005 - 2010

350

Months

-Cuidl'linl'lIIinimum

~Sl'ntl'ncl'

300
250
200
150
100
50
0
2005

2006

SOURCEo u.s. Semo...cd!lg Commissjon 2005 tbroogh 2010 Dllrafilo,

2007

2008

2009

2010

SSC'FY""2005--liSSCFY2010.

Figure 10-9
Average Guideline Minimum and Avel'age Sentence fOI' Offendel's Convicted of an Offense
Cal'l'~'ing a Sexual Abuse Mandator~' finimmn Penalty
Non-Substantial Assistance Below Range Offendel's
Fiscal Years 2005 - 2010
-Cuidl'linl'lIIinimum

350

~Sentl'nce

Months

300
250
200
150
100
50
0
2005

2006

2007

2008

2009

2010

SOURCE: u.s. Se=<ing Commissjon 2005 tbroogh 2010 Dllrafil., USSCFY""200>-liSSCFY""2010.

In fiscal year 2010, the average extent of substantial assistance departures in sexual abuse
cases was 35.9 percent (70 months) from the bottom of the otherwise applicable guideline range.
In fiscal year 2010, the average extent of non-government sponsored below range sentences (i.e.,
departures and variances combined) in sexual abuse cases that carried a mandatory minimum
penalty was 19.2 percent (59 months) from the bottom of the otherwise applicable guideline
range.
314

Figures 10-10 and 10-11 show the impact on sentences for child pornography offenders
from substantial assistance departures and from non-substantial assistance below range
sentences. These figures compare the average guideline range minimum to the average sentence
imposed on offenders sentenced from fiscal year 2005 to 2010.
Figure 10-10
Average Guidl"linl" l\'linimmn and Avel'agl" Sentence fol' Offl"lldl"l's COllvictl"d of an Offl"llsl"
Carrying a ClJild Pornograpb~' l\'landatol~' :\Iinillllllll Penalty
SII bstantial Assista Il('l" Offenders
Fis('al Vl"ars 2005 - 2010

350

:\IOnfb'

_Guid~Iin~:\linimum

_S.nr~nCf

,.,
250
200
150

,.,

-----....:

•

•

2007

2008

•

•

2009

2010

50

"

2005

2006

Figlll'l" 10-11
Avemge Guidl"linl" Minimum and Avel'agl" Sentence fol' Offelldl"l's COllvictN! of all Offl"llsl"
Cal'l~'ing a ClJild POl'nogl'apb~' Mandatol~' :\Iillillllllll Penalty
:"Ioll-Substalllial Assistance Bl"low Range Offl"ndl"l'S
Fi,..al V..a,', 200;'; _ 2010

350

:\IOnfb'

_Guid~Iin.:\linimum

_S.nr~nCf

,.,
250
200
150

,.,

-

•

•
•

2005

2006

•

•

•
•

•

•

2007

2008

2009

:010

50

"

SOUIlCL u.s. S -. . C_ _ ,.., _

"'Ol>aftlo. Io""",TY:'OOS-- u,,='o

315

In fiscal year 2010, the average extent of substantial assistance departures in child
pornography cases was 31.9 percent (45 months) from the bottom of the otherwise applicable
guideline range. In fiscal year 2010, the average extent of non-government sponsored below
range sentences (i.e., departures and variances combined) in child pornography cases that carried
a mandatory minimum penalty was 36.0 percent (64 months) from the bottom of the otherwise
applicable guideline range.
2. Special Coding Project: Application of Mandatory Minimum Penalties in Child
Pornography Cases
In order to further assess the application of mandatory minimum penalties on child
pornography offenders sentenced under USSG §2G2.2 – constituting nearly three out of four
federal sex offenders in fiscal year 2010777 – the Commission conducted a special coding project
of a 20-percent random sample of such cases (336 of 1,669 cases).778 That coding project
involved an analysis of the charging instrument, judgment and commitment order, presentence
report (PSR), and statement of reasons form in each case. The analysis focused on several
issues, including two relevant to this report: (1) the nature of the most serious offense of
conviction in each case; and (2) whether, in cases in which the sole offense of conviction was
simple possession of child pornography, the offense conduct section of PSRs (unless rejected by
sentencing courts) involved the offender’s knowing distribution of child pornography to another
person.
The Commission is undertaking a broader special coding project of all 1,669 child
pornography cases from fiscal year 2010 in which offenders were sentenced under USSG §2G2.2
and will include the results of that analysis in a separate report on child pornography cases that it
expects to issue in the coming year. It should be noted that the results of an analysis of a
relatively small sample, such as the 20-percent sample studied for this report, should be taken
with some degree of caution. The findings of such an analysis are only intended to be
preliminary. The findings of an analysis of all 1,669 cases will provide a more accurate
empirical description of child pornography cases.
With respect to the first issue, the Commission identified all federal penal statutes under
which a conviction resulted in sentencing pursuant to §2G2.2. Those statutes related to child
pornography offenses are discussed above. The Commission classified such statutes according
777

Of the 2,317 sex offense cases in fiscal year 2010, 72% (n=1,669) were sentenced under USSG §2G2.2. It
should be noted that the analyses discussed in the prior portions of this chapter refer to 1,677 child pornography
offenders rather than 1,669 offenders. The additional eight offenders were sentenced under the former USSG
§2G2.4, which solely applied to offenders convicted of simple possession and which was deleted by consolidation
with USSG §2G2.2 on November 1, 2004. See USSC App. C, amend. 664. Those eight offenders, although
sentenced in fiscal year 2010, committed their offenses before November 1, 2004, and thus were sentenced under
the former §2G2.4 to avoid a violation of the Ex Post Facto Clause.

778

The original analysis included an additional case in which the offender was sentenced under USSG §2G2.2, but
where the statute under which the offender was convicted was a federal obscenity statute (prohibiting the
distribution of obscenity to a minor) that did not carry a mandatory minimum penalty. The Commission excluded
that case from analysis because, although it involved distribution of child pornography and was treated as such
under USSG §2G2.2, the offender was not subject to a mandatory minimum penalty.

316

to the nature of the conduct proscribed; the offense types (in order of most serious to least
serious) include distribution, importation, transportation (including shipping and mailing),
receipt, possession, and “morphing” offenses. An examination of the charging instrument and
judgment and commitment order in each case revealed the most serious offense of conviction.779
The results of the Commission’s analysis780 are depicted in Figure 10-12. The most serious
offense of conviction for the majority (58.3%) of the offenders studied was possession of child
pornography.
Figure 10-12
:\Iosl Sl"riOIlS Offl"llsl" of COll\i('lioll fol' Cbild POl'llogl'~l)h~' Offl"udl"l's
Fis('~l Yl"~1' 1010 S~m(lil" GI'OIl(l

TraOSp<HUI;On

8.6%
rn"l'ibUI;OO

RK.ipl
!O..l%

11.8%

The Commission’s special coding project also sought to determine whether there was
evidence that offenders convicted of possession who did not face any mandatory minimum
penalty781 could have been convicted and sentenced based on distribution, a more serious child
pornography offense carrying a mandatory minimum penalty.782 Figure 10-13 compares the
779

Occasionally, a particular statutory provision includes two or more offense types in the disjunctive (e.g., receipt
or distribution in 18 U.S.C. § 2252(a)(2)) , which required the Commission to examine the indictment and judgment
and commitment order to determine under which prong of a multi-prong statute the defendant was convicted. If the
judgment and commitment order referred to multiple offenses disjunctively in a single count of conviction (e.g.,
“receipt or distribution”), the less serious offense type was chosen.

780

None of the 336 cases examined involved convictions of importation or morphing offenses.

781

The 13 offenders convicted of simple possession but who were subject to a ten-year mandatory minimum
penalty based on a prior conviction for a sex offense were not included in this analysis. Such offenders are subject
to a mandatory minimum ten-year prison term (unless they receive a downward departure based on substantial
assistance) and thus differ significantly from first-time sex offenders convicted of simple possession, who face a tenyear maximum penalty.

782

An analysis of the offense conduct section of PSRs (except those portions rejected by district courts) in the 183
cases in which offenders were convicted only of possession and who did not receive an enhanced sentenced based
on a prior conviction for a sex offense revealed that the PSRs typically (but not always) discussed the offense
conduct in sufficient detail to determine whether an offender had in fact knowingly distributed child pornography to

317

percentage of defendants convicted of simple possession who in fact engaged in distribution
conduct to the percentage of those who did not. Of the offenders studied, the Commission found
that the majority (53.0%) of offenders convicted of only simple possession also engaged in
distribution conduct. However, because these offenders were convicted of simple possession,
they were not subject to any mandatory minimum penalty.
Di~fl'ibutioll

Figure 10-13
Conducl Amollg Offl"udl"l'S COII\"icfed Onl~' of Simpll"
Fis.cal Year 1010 Sam)lll" Grollp

Posse~sioll

Po,,,,,,ion Onl~'
H.O%
Actual
Dimibution
C"ndnrt
53.0~'

SOlJR(L

u.s. " " - C_ _ ,.10 Ootafilo. U\'£TY10.

The results of this preliminary analysis of a 20-percent sample of child pornography
cases suggest that a substantial number of similarly situated offenders are being treated
differently under the mandatory minimum penalties applicable to child pornography offenses.
Further analysis of this issue will occur in the Commission’s comprehensive study of all 1,669
child pornography cases from fiscal year 2010, which will appear in a future report on child
pornography offenses. The Commission’s comprehensive study of all fiscal year 2010 cases also
will examine whether offenders convicted solely of possession also could have been convicted of
and sentenced for knowing receipt, which (like distribution but unlike possession) carries a
mandatory minimum penalty. The future report also will examine those possession cases with
substantial evidence of one or more offenses carrying a mandatory minimum penalty with those
possession cases in which no such evidence existed in order to determine whether any material
similarities or differences appear in the two types of cases.

another person in violation of 18 U.S.C. §§ 2252(a)(2) or 2252A(a)(2). It should be noted that only those cases in
which the offense conduct section of the PSR unequivocally found that the defendant had knowingly distributed
child pornography were included in the analysis. Several cases were excluded from the analysis because the PSR
mentioned possible distribution (e.g., the defendant used a peer-to-peer file-sharing program) but was unclear
whether the defendant knowingly distributed. Thus, the percentage of cases in which the Commission found that an
offender convicted of possession appeared eligible for prosecution for a distribution offense may be an underinclusive number.

318

E.

PRISON IMPACT

The number of federal offenders convicted of sex offenses is a small but increasing part
of the federal prison population. In 2010, 4.6 percent (8,767 of the 191,757 offenders) in federal
prison were sex offenders. Of those 8,767, 52.5 percent (n=4,601) were convicted of an offense
carrying a mandatory minimum penalty, 50.4 percent (4,414 of the 8,767) of whom were subject
to that penalty at sentencing. In 1995, less than one percent (492 of the 71,972 offenders in
federal prison) were sex offenders. Of those 492, 6.5 percent (n=32) were convicted of an
offense carrying a mandatory minimum penalty, and all but one of those offenders remained
subject to such a penalty at sentencing.
F.

SUMMARY

With respect to mandatory minimum penalties and sex offenses, Commission analyses
demonstrate the following:
Offenses and Offenders
•

In fiscal year 2010, 2,317 (3.2%) offenders were convicted of a sex offense. Of the 2,317
offenders convicted of a sex offense, 640 (27.6%) were convicted of a sexual abuse
offense and 1,677 (72.4%) were convicted of a child pornography offense.

•

Of the 2,317 offenders convicted of a sex offense, 1,176 (50.8%) were convicted of an
offense carrying a mandatory minimum penalty.

•

Of the 640 offenders convicted of a sexual abuse offense, 336 (52.5%) were convicted of
an offense carrying a mandatory minimum penalty.

•

o

Among sexual abuse offenders convicted of an offense carrying a mandatory
minimum penalty, over three-quarters (76.4%) of the offenders were White,
followed by Black (11.9%), Hispanic (8.7%), and Other Race (3.0%) offenders.
By comparison, among all offenders convicted of a sexual abuse offense, 55.2
percent were White, followed by Other Race (22.5%), Black (12.5%), and
Hispanic (9.7%) offenders.

o

The overwhelming majority of offenders convicted of a sexual abuse offense
carrying a mandatory minimum penalty (97.9%) were male.

o

United States citizens accounted for 94.9 percent of offenders convicted of a
sexual abuse offense carrying a mandatory minimum penalty.

Of the 1,677 offenders convicted of a child pornography offense, 840 (50.1%) were
convicted of an offense carrying a mandatory minimum penalty.

319

o

Among child pornography offenders convicted of an offense carrying a
mandatory minimum penalty, 88.2 percent were White, followed by Hispanic
(6.4%), Black (3.2%), and Other Race (2.2%) offenders.

o

The overwhelming majority of offenders convicted of a child pornography
offense carrying a mandatory minimum penalty (99.4%) were male.

o

United States citizens accounted for 97.9 percent of offenders convicted of a child
pornography offense carrying a mandatory minimum penalty.

•

No district had more than 50 convictions for sexual abuse offenses. Convictions occurred
most often in the Districts of Southern Georgia (n=16, 0.7% of all cases sentenced in the
district), Northern New York (n=11, 2.5%), Eastern California (n=10, 1.0%), and
Northern Georgia (n=10, 1.5%). These four districts together accounted for 14.0 percent
of all federal sexual abuse cases.

•

No district had more than 50 convictions for child pornography offenses. Convictions
occurred most often in Eastern Virginia (n=39, 3.2% of all cases sentenced in the
district), Middle Florida (n=34, 2.0%), Southern Florida (n=30, 1.4%), Southern Indiana
(n=28, 8.6%), and Western Texas (n=27, 0.4%). These districts together accounted for
18.8 percent of all child pornography cases.

•

The vast majority of sexual abuse and child pornography offenders had no prior criminal
record at the time they were sentenced and only a very small percentage were in Criminal
History Categories IV through VI.

Application and Relief
•

In fiscal year 2010, the trial rate for sexual abuse offenders was 15.2 percent – more than
twice the rate for sexual abuse offenders not convicted of an offense carrying a
mandatory minimum penalty (6.9%). The trial rate for child pornography offenders
convicted of an offense carrying a mandatory minimum penalty was 6.4 percent – four
times the rate for child pornography offenders not convicted of an offense carrying a
mandatory minimum penalty (1.6%).

•

In fiscal year 2010, 4.2 percent of offenders convicted of a sexual abuse or child
pornography offense carrying a mandatory minimum penalty were relieved of the
mandatory minimum penalty at sentencing pursuant to 18 U.S.C. § 3553(e) because they
rendered substantial assistance to the government.
o

•

The number of cases is too small to draw any meaningful conclusions about the
role of race, gender, or citizenship as it relates to substantial assistance relief in
sexual abuse cases.

Over 60 percent (63.7%) of offenders convicted of a sexual abuse offense carrying a
mandatory minimum penalty and 42.5 percent of offenders convicted of a child
320

pornography offense carrying a mandatory minimum penalty were sentenced within the
applicable guideline range.
o

Approximately 13 percent of offenders convicted of a sexual abuse or child
pornography offense carrying a mandatory minimum penalty received a
government sponsored below range sentence (13.1% and 13.4%, respectively).

o

Offenders convicted of a sexual abuse offense carrying a mandatory minimum
penalty received a non-government sponsored below range sentence in 17.3
percent of the cases, compared to 41.9 percent of offenders convicted of a child
pornography offense carrying a mandatory minimum penalty.

•

The average extent of substantial assistance departures in sexual abuse cases was 35.9
percent (70 months) from the bottom of the otherwise applicable guideline range; the
average extent of substantial assistance departures in child pornography cases was 31.9
percent (45 months) from the bottom of the otherwise applicable guideline range.

•

The average extent of non-government sponsored below range sentences in sexual abuse
cases that carried a mandatory minimum penalty was 19.2 percent (59 months) from the
bottom of the otherwise applicable guideline range; the average extent of nongovernment sponsored below range sentences in child pornography cases that carried a
mandatory minimum penalty was 36.0 percent (64 months) below the otherwise
applicable guideline range.

Sentencing
•

In fiscal year 2010, 95.8 percent of offenders convicted of a sexual abuse offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing.

•

In fiscal year 2010, the rate at which offenders convicted of a sexual abuse offense who
were subject to the mandatory minimum penalty at sentencing varied by race, gender and
citizenship.
o

White offenders were subject to the mandatory minimum penalty at sentencing
most often, in 97.3 percent of their offenses carrying such a penalty, followed by
Hispanic (96.6%) and Other Race (90.0%) offenders. Black offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 87.5
percent of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (96.4% of their cases, compared to 71.4% of
cases involving female offenders).

321

o

Non-citizens were subject to the mandatory minimum penalty at sentencing more
often than United States citizen offenders (100.0% of their cases, compared to
95.6% of cases involving United States citizen offenders).

•

The average sentence for offenders convicted of a sexual abuse offense who were subject
to the mandatory minimum penalty (i.e., who did not receive relief for rendering
substantial assistance) was 235 months. The average sentence for those offenders who
obtained relief from the mandatory minimum penalty was 139 months. The average
sentence for offenders convicted of a sexual abuse offense not carrying a mandatory
minimum penalty was 73 months.

•

In fiscal year 2010, 95.8 percent of offenders convicted of a child pornography offense
carrying a mandatory minimum penalty were subject to the mandatory minimum penalty
at sentencing.

•

In fiscal year 2010, the rate at which offenders convicted of a child pornography offense
who were subject to the mandatory minimum penalty at sentencing varied by race, gender
and citizenship.

•

o

Black offenders were subject to the mandatory minimum penalty at sentencing
most often, in 100.0 percent of their offenses carrying such a penalty, followed by
Hispanic (96.3%) and White (95.7%) offenders. Other Race offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 94.4
percent of their cases.

o

Female offenders were subject to the mandatory minimum penalty at sentencing
more often than male offenders (100.0% of their cases, compared to 95.8% of
cases involving male offenders).

o

Non-citizens were subject to the mandatory minimum penalty at sentencing more
often than United States citizen offenders (100.0% of their cases, compared to
95.7% of cases involving United States citizen offenders).

The average sentence for offenders convicted of a child pornography offense who
remained subject to the mandatory minimum penalty (i.e., who did not receive relief for
rendering substantial assistance) was 132 months. The average sentence for those
offenders who obtained relief from the mandatory minimum penalty was 121 months.
The average sentence for offenders convicted of a child pornography offense not carrying
a mandatory minimum penalty was 54 months.

Prison Impact
•

At the end of fiscal year 2010, 4.6 percent of the offenders in the custody of the Bureau
of Prisons were convicted of a sex offense. Of those offenders, 52.2 percent were
convicted of an offense carrying a mandatory minimum penalty. The percentage of
prisoners convicted of a sex offense has slowly increased over time, rising from less than
322

one percent in 1995 (of those prisoners, only 6.5 were convicted of an offense carrying a
mandatory minimum penalty).
Further Study
•

The Commission’s special coding project of a 20-percent random sample of child
pornography cases indicates that approximately half of offenders convicted of possession
(who did not face a mandatory minimum penalty) could have been prosecuted and
sentenced for distribution of child pornography, an offense carrying a mandatory
minimum penalty.

•

The preliminary analysis of data concerning child pornography offenses contained in this
report will be followed up by a more comprehensive analysis of child pornography
offenses and offenders in a future report issued by the Commission.

323

324

Chapter 11

MANDATORY MINIMUM PENALTIES FOR
IDENTITY THEFT OFFENSES
A.

INTRODUCTION

This chapter analyzes the application of mandatory minimum penalties for identity theft
offenses. First, this chapter provides an overview of the aggravated identity theft statute,783
related offenses, and the applicable sentencing guideline provisions. Second, this chapter
provides a statistical overview of identity theft offenses and the application of section 1028A.
Third, this chapter analyzes the effect of section 1028A on sentencing outcomes, including
sentence length and rates of relief from the mandatory penalty. Finally, this chapter presents
findings with respect to mandatory minimum penalties and identity theft offenses.
As used in this chapter, the term “identity theft offenses” refers to the offenses
established at 18 U.S.C. § 1028 (general identity theft) and 18 U.S.C. § 1028A (aggravated
identity theft), as well as any other offense sentenced under the fraud guideline, §2B1.1,784 that
received the 2-level enhancement for identity theft conduct.785 The term “identity theft offender”
means a person who committed an identity theft offense.
There are other offense types, particularly immigration offenses, in which an offender
may have engaged in identity theft or similar conduct but was not convicted of identity theft
under section 1028 or aggravated identity theft under section 1028A. Those cases are not
included in the Commission’s analyses because such an offender was not convicted of an identity
theft offense, and the guideline provisions applicable to immigration offenses do not include
identity theft enhancements.786 As a result, there is no reliable way to identify such cases. The
Commission’s analysis of identity theft offenses therefore may be under-inclusive.

783

18 U.S.C § 1028A.

784

USSG §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property;
Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments
Other than Counterfeit Bearer Obligations of the United States).
785

The enhancement for identity theft is found at USSG §2B1.1(b)(10)(C). Effective November 1, 2011, this
provision will be redesignated as §2B1.1(b)(11)(C).

786

See, e.g., USSG §§2L2.1 (Trafficking in a Document Relating to Naturalization, Citizenship, or Legal Resident
Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status of Another;
Fraudulent Marriage to Assist Alien to Evade Immigration Law) and 2L2.2 (Fraudulently Acquiring Documents
Relating to Naturalization, Citizenship, or Legal Resident Status for Own Use; False Personation or Fraudulent
Marriage by Alien to Evade Immigration Law; Fraudulently Acquiring or Improperly Using a United States
Passport).

325

B.

OFFENSES AND RELATED GUIDELINES
1.

Identity Theft Offenses

Congress created the offense of aggravated identity theft, codified at 18 U.S.C. § 1028A,
in 2004.787 That section provides, “Whoever, during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a
means of identification of another person shall, in addition to the punishment provided for such
felony, be sentenced to a term of imprisonment of 2 years.” 788 The enumerated felony offenses
include theft offenses,789 offenses involving false statements and fraud,790 offenses related to
nationality and citizenship,791 offenses related to passports and visas,792 and immigration
offenses.793
Section 1028A requires that the mandatory two-year term of imprisonment be imposed
consecutively to “any other term of imprisonment imposed on the person under any other
provision of law, including any term of imprisonment imposed for the felony during which the

787

See Identity Theft Penalty Enhancement Act, Pub. L. No. 108–275, § 2, 118 Stat. 831 (2004).

788

“[T]he term ‘means of identification’ means any name or number that may be used, alone or in conjunction with
any other information, to identify a specific individual,” and includes names, social security numbers, dates of birth,
driver’s licenses, taxpayer identification numbers, biometric data, and access devices. 18 U.S.C. § 1028(d)(7). In
turn, the term “access device” means “any card, plate, code, account number, electronic serial number, mobile
identification number, personal identification number . . . or other means of account access that can be used, alone or
in conjunction with another access device, to obtain money, goods, services, or any other thing of value . . . .”
18 U.S.C. § 1029(e)(1), incorporated by reference in 18 U.S.C. § 1028(d)(7).

789

See 18 U.S.C. § 1028A (c)(1) (“[18 U.S.C. §] 641 (relating to theft of public money, property, or rewards), [ ]
656 (relating to theft, embezzlement, or misapplication by bank officer or employee), or [ ] 664 (relating to theft
from employee benefit plans”).

790

§ 1028A (c)(3) (“[Title 18, United States Code,] section 922(a)(6) (relating to false statements in connection
with the acquisition of a firearm)”); § 1028A(c)(4) (“any provision contained in [chapter 47 of title 18, United States
Code] (relating to fraud and false statements), other than this section or section 1028(a)(7)”); § 1028A(c)(5) (“any
provision contained in chapter 63 [of Title 18, United States Code] (relating to mail, bank, and wire fraud)”);
§ 1028A(c)(8) (“section 523 of the Gramm-Leach-Bliley Act (15 U.S.C. § 6823) (relating to obtaining customer
information by false pretenses)”); § 1028A(c)(11) (“section 208, 811, 1107(b), 1128B(a), or 1632 of the Social
Security Act (42 U.S.C. §§ 408, 1011, 1307(b), 1320a-7b(a), and 1383a) (relating to false statements relating to
programs under the Act)”).

791

§ 1028A (c)(2) (“[Title 18, United States Code,] section 911 (relating to false personation of citizenship)”);
§ 1028A(c)(6) (“any provision contained in chapter 69 [of title 18, United States Code] (relating to nationality and
citizenship)”).

792

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

793

§ 1028A (c)(9) (“section 243 or 266 of the Immigration and Nationality Act (8 U.S.C. §§ 1253 and 1306)
(relating to willfully failing to leave the United States after deportation and creating a counterfeit alien registration
card)”); § 1028A(c)(10) (“any provision contained in chapter 8 of title II of the Immigration and Nationality Act (8
U.S.C. § 1321 et seq.) (relating to various immigration offenses)”).

326

means of identification was transferred, possessed, or used.”794 Moreover, the statute directs the
court not to reduce any sentence for the underlying felony, assuming the defendant is convicted
separately of the underlying felony, to “compensate for, or otherwise take into account, any
separate term of imprisonment”795 to be imposed for a violation of section 1028A.
The statute has a feature by which sentences for multiple violations of section 1028A
may be “stacked.” As described above, the sentencing court must impose the mandatory twoyear penalty for the first section 1028A count and must run that sentence consecutively to any
sentence imposed for the underlying felony. However, the court may in its discretion run the
sentence for any additional 1028A counts “concurrently, in whole or in part, [] with another term
of imprisonment that is imposed by the court at the same time on that person for an additional
violation of [section 1028A].”796 Thus, section 1028A does not require that multiple counts of
conviction be served consecutively, or “stacked,” with one another.
Other statutes penalize conduct that is similar to aggravated identity theft; however,
unlike section 1028A, those statutes do not carry mandatory minimum penalties. The general
identity theft statute, 18 U.S.C. § 1028, which does not carry a mandatory minimum,797
proscribes a broader range of identity theft activities than section 1028A. Thus, all conduct that
violates section 1028A also violates section 1028.798 Conduct that violates section 1028 often
will also violate section 1028A (depending primarily on the underlying offense), though not
necessarily.799 Additionally, in some circumstances, conduct covered by the aggravated identity
theft statute may be punishable under various fraud offense statutes, which do not carry
mandatory minimum penalties.800 These overlapping statutes thus provide multiple charging
options for offenders who engage in identity theft.

794

§ 1028A(b)(2).

795

§ 1028A(b)(3).

796

§ 1028A(b)(4).

797

See 18 U.S.C. § 1028(b).

798

A person violates section 1028 if he or she, among other acts, “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person with the intent to commit . . . or in connection with, any
unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or
local law.” 18 U.S.C. § 1028(a)(7). See United States v. Bonilla, 579 F.3d 1233 (11th Cir. 2009) (concluding that
the defendant’s indictment and conviction of both identity theft in violation of section 1028(a)(7) and aggravated
identity theft in violation of section 1028A(a)(1) violated the double jeopardy clause).

799

For example, in addition to using a means of identification in connection with certain offenses, section 1028
proscribes the unlawful production or transfer of an identification document, authentication feature, or a false
identification document. See 18 U.S.C. § 1028(a)(1) & (2). This conduct does not necessarily give rise to criminal
liability for aggravated identity theft under section 1028A.

800

See, e.g., 18 U.S.C. § 1029 (access device fraud), 18 U.S.C. § 1343 (wire fraud), and 42 U.S.C. § 408 (a)(7)
(fraudulent use of a social security account number).

327

The exercise of prosecutorial discretion in charging identity theft offenses is limited to
some degree by the differing proof requirements of the aggravated identity theft offense,
compared to identity theft offenses that do not carry a mandatory minimum penalty. In FloresFigueroa v. United States,801 the Supreme Court held that to establish the section 1028A element
that the defendant “knowingly” transferred, possessed, or used a means of identity of another
person, the government must prove that the defendant both knew that he or she was transferring,
possessing, or using a means of identification and knew that the means of identification in fact
belonged to another person.802 Although a similar proof requirement may exist under the general
identity theft statute insofar as the government alleges the defendant violated section 1028(a)(7)
(“knowingly transfers, possesses or uses, without lawful authority, a means of identity of another
person”)803 other sections of the general identity theft offense, other fraud statutes, and the
guidelines identity-theft enhancement impose less stringent proof requirements than section
1028A.
2.

Related Guidelines

The guideline applicable to fraud and other offenses (including non-aggravated identity
theft), USSG §2B1.1 applies to identity theft offenders generally, as it establishes a 2-level
enhancement if the offense involved certain identity theft conduct. As relevant here, an offender
is subject to the enhancement pursuant to §2B1.1(b)(10)(C) if the offense involved “the
unauthorized transfer or use of any means of identification unlawfully to produce or obtain any
other means of identification” or “the possession of 5 or more means of identification that
unlawfully were produced from, or obtained by the use of, another means of identification.”804
Conduct that triggers the guideline enhancement is also generally punishable under section
1028A. First, the guideline enhancement requires the commission of an underlying offense, that
is, an offense covered by the §2B1.1 guideline. Those offenses include many of the enumerated
felonies in section 1028A, such as mail fraud, wire fraud, bank fraud, and various social security
frauds. Second, many, though not all,805 of the acts that trigger the guideline enhancement may
also violate section 1028A, such as using another’s name and social security number to obtain a
bank loan or a credit card.806 The guideline also provides incremental enhancements based on

801

129 S. Ct. 1886 (2009).

802

See id. at 1894.

803

See id. at 1891 (explaining that “courts ordinarily read a phrase in a criminal statute that introduces the elements
of a crime with the word ‘knowingly’ as applying that word to each element”).

804

See USSG §2B1.1(b)(10).

805

The enhancement and section 1028A are not entirely coextensive. For example, if the offender used the means
of identification only to purchase consumer goods or merely forged a signature to cash a stolen check, he or she may
have committed aggravated identity theft, but §2B1.1(b)(10)(C) likely would not apply. See USSG §2B1.1,
comment. (n.9(C)(iii)).
806

See USSG §2B1.1, comment. (n.9(C)(ii)).

328

the amount of loss incurred in the offense807 and an enhancement of two, four, or six levels based
on the number of victims involved.808
The guideline provision applicable to convictions of an offense under section 1028A
reflects the statute’s fixed, mandatory penalty by providing that “the guideline sentence is the
term of imprisonment required by statute.”809 In addition, the guidelines provide a nonexhaustive list of factors for the court to consider in exercising its discretion concerning multiple
section 1028A counts. Those factors are: (1) the nature and seriousness of the underlying
offenses (e.g., whether the underlying offenses are crimes of violence); (2) whether the
underlying offenses are able to be grouped for guidelines purposes and, if so, specifying that
multiple section 1028A counts in that case “should run concurrently with one another”; and (3)
whether the purposes of sentencing as specified at 18 U.S.C. § 3553(a)(2) “are better achieved by
imposing a concurrent or a consecutive sentence” for the multiple section 1028A counts.810
C.

STATISTICAL OVERVIEW

Identity theft offenses constitute a small percentage of federal criminal cases. Of the
73,239 offenders sentenced in fiscal year 2010 and included in this analysis, 2.6 percent
(n=1,870) were convicted of identity theft offenses. Of the 1,870 cases involving identity theft
offenses, 42.6 percent (n=797) involved a conviction of an offense under section 1028A. See
Figure 11-1. Cases involving a conviction of an offense under section 1028A were only 0.9
percent of all federal criminal cases.

807

See USSG §2B1.1(b)(1).

808

See USSG §2B1.1(b)(2). Ten is the minimum number of victims triggering an increase.

809

See USSG §2B1.6 (Aggravated Identity Theft).

810

See USSG §5G1.2, comment. (n.2(B)).

329

Pel'('elll

Comirl~d of

ofldelllil~'

Figure 11-1
Tlieft Offenders Convkted of an
18 U.S.C § 1028A
Fis('al YeaI' 2010

OffelL~e Undel'

18 U.S.c. § 1028.-\

'"

~2,6%

"'01 Con,-klfi! of 18 U.S.c. § 1018.-\
1.012
57.~%

SOUR<I:.

u.s. s.-m.c ('_ _ "'0 DDlIlo. "'<;elY'O.

Although identity theft offenses are only a small percentage of the federal criminal
docket, the number of offenders convicted of section 1028A has increased since the Commission
began collecting data concerning those offenders.811 Of all offenders for whom the Commission
received sentencing information in fiscal year 2006, less than one percent (0.4%, n=309) were
convicted of an offense under section 1028A.812
Of the 797 offenders convicted of an offense under section 1028A in fiscal year 2010,
690 (86.6%) were also convicted of at least one additional felony offense. The type of additional
felony offenses in these cases can be determined by reference to the primary guideline provision
applicable at sentencing. Of the 797 offenders convicted of an offense under section 1028A,
71.1 percent (n=567) were sentenced pursuant to USSG §2B1.1; 13.4 percent (n=107) were
sentenced pursuant to USSG §2B1.6 because they were convicted only of violating section
1028A; and 10.8 percent (n=86) were sentenced pursuant to guidelines relating to immigration
offenses. The remaining offenders were sentenced under other guidelines.813
A discussion of several statistical analyses of identity theft offenses – using Commission
data from fiscal year 2010 – is set forth below.
811

The Commission began identifying offenders convicted of violating 18 U.S.C. § 1028A beginning with the data
for fiscal year 2006 (Congress created the offense in July 2004). In order to assess the prison impact of the
mandatory penalty, Commission data files were combined with a Bureau of Prisons data file to determine how many
offenders were in prison, what percentage of offenders at the end of each fiscal year were in prison due to conviction
of an offense under section 1028A, and what percentage of prisoners were subject to the mandatory penalty at
sentencing. All statistics are based on what offenders are in prison as of September 30 of the respective year (the
end of the fiscal year).
812

There were 575 convictions of offenses under section 1028A in fiscal year 2007 (0.8% of all offenders), 904 in
fiscal year 2008 (1.2% of all offenders); and 935 in fiscal year 2009 (1.1% of all offenders).
813

See Table D-19 (Average Sentence by Guideline for Identity Theft Offenders (Fiscal Year 2010)) in Appendix D
of this Report.

330

1.

Demographic Characteristics of Identity Theft Offenders

Table 11-1 presents the demographic characteristics of all identity theft offenders in fiscal
year 2010. This information is then compared to the demographic characteristics of identity theft
offenders convicted of an offense under section 1028A; identity theft offenders convicted of an
offense under section 1028A but relieved from its mandatory penalty because they rendered
substantial assistance; and identity theft offenders convicted of an offense under section 1028A
and subject to the mandatory penalty at sentencing. Table 11-2 presents information about the
criminal histories of those groups of offenders.
Table 11-1
Demographic Characteristics of Identity Theft Offenders
Fiscal Year 2010

Total (# of offenders)

All
Identity
Theft
Offenders

Convicted of
18 U.S.C. ' 1028A

1,870

797

Relieved of
Application of 18
U.S.C. ' 1028A

Subject to
18 U.S.C. ' 1028A
at Sentencing

124

673

Race of Offender (Percent)
White

29.9

32.8

27.6

33.7

Black

39.7

40.2

44.7

39.4

Hispanic

25.7

22.3

21.1

22.5

4.7

4.7

6.5

4.3

Other

Citizenship of Offender (Percent)
United States Citizen

70.3

74.4

83.1

72.8

Non-Citizen

29.7

25.6

16.9

27.2

Gender of Offender (Percent)
Male

72.7

71.8

62.9

73.4

Female

27.3

28.2

37.1

26.6

331

Table 11-2
Criminal History of Identity Theft Offenders
Fiscal Year 2010

Criminal History
Category
Total (# of offenders)

All
Offenders

Convicted of
18 U.S.C. ' 1028A

1,870

Relieved of
Application of
18 U.S.C. ' 1028A

797

Subject to
18 U.S.C. ' 1028A
at Sentencing

124

673

Criminal History Category (Percent)
I

52.2

45.4

49.6

44.6

II

9.9

10.5

9.2

10.8

III

13.1

12.2

7.6

13.1

IV

7.0

8.8

10.1

8.6

V

6.0

8.0

6.7

8.3

VI

11.9

15.0

16.8

14.7

2.

Guilty Pleas and Trials

Identity theft offenders convicted of an offense under section 1028A went to trial more
often than identity theft offenders who were not convicted of an offense under section 1028A.
Of the 797 offenders convicted of an offense under section 1028A in fiscal year 2010, 6.8
percent (n=54) proceeded to trial. By contrast, of the 1,072 identity theft offenders not convicted
of an offense under section 1028A, 2.1 percent (n=22) proceeded to trial. See Figure 11-2.

332

Figure 11-2
Pll"a and Tlial

Rate~ ofldenti~' Till"ft

Offl"ndl"l's b~' :\landalol}' iUillimum Stams
2010

Fi~l'al Yl"al'

Convil'ted or 18 U.S.c. § 1028A
TI'ial

"

6.8%

Plea

on
93,2%

,,"01 Convicted or 18 U.S.c. § 1028A
TI'ial

n

Plu
1,050

97,9%
SO<JRCL

3.

u.s. " " - c-._ ,.lOl>Dfilo, US'£1Y10.

Geographic Variations

Cases involving a conviction of an offense under section 1028A were primarily
concentrated in three circuits. Of the 797 cases in fiscal year 2010 that involved a conviction of
an offense under section 1028A, 23.8 percent (n=190) were from district courts in the Eleventh
Circuit, 16.1 percent (n=128) were from district courts in the Ninth Circuit, and 14.4 percent
(n=115) were from district courts in the Fourth Circuit. Thus, over half (54.3%, n=433) of the
797 cases involving the aggravated identity theft mandatory penalty came from district courts in
those three circuits.814 By way of comparison, 36.6 percent of all federal cases sentenced in
fiscal year 2010 came from district courts in those three circuits.815
Cases involving a conviction of an offense under 1028A were more geographically
dispersed at the district level than at the circuit level. Nonetheless, a disproportionately large
number of cases involving a conviction of an offense under section 1028A came from only three
judicial districts. The Southern District of Florida had significantly more cases involving a
conviction of an offense under section 1028A than other districts. Of the 797 cases in fiscal year
2010 that involved a conviction of section 1028A, 103 (12.9%) were from the Southern District
of Florida. By way of comparison, only 3.0 percent of all federal cases sentenced in fiscal year
2010 came from that district.816 Two other districts reported 30 or more cases that involved a
814

See Table D-18 (Mandatory Minimum Status for Identity Theft Offenders in Each Circuit and District (Fiscal
Year 2010)) in Appendix D of this Report.
815

See Table D-1 (Mandatory Minimum Status of Cases in Each Circuit and District (Fiscal Year 2010)) in
Appendix D of this Report.

816

Id.

333

conviction of an offense under section 1028A: 37 in Eastern Pennsylvania (comprising 4.6% of
all cases involving a conviction of section 1028A compared to 1.1% of all federal cases) and 30
in Eastern Virginia (comprising 3.7% of all cases involving a conviction of section 1028A
compared to 2.5% of all federal cases). Sixty-six districts reported fewer than ten cases
involving a conviction of an offense under section 1028A and 12 reported having no cases
involving a conviction of an offense under section 1028A.817 See Figure 11-3.
Figure 11-3
:"'nmbel' of Offenden Convicted of an Offense Undel' IS V.S.c. § I02SA
Fiscal Year 2010

..
"""RCl'. ,,-'

~

_.,~-

=, ..

c::::J ,.. '" , ••

c_ _ "no "'"""". "''''ITlO.

Cases involving a conviction of an offense under section 1028A, while geographically
concentrated in only a few districts, comprised only a small percentage of any district’s criminal
case docket. In fiscal year 2010, only five of the 94 federal districts reported that more than four
percent of the total criminal case docket involved a conviction of an offense under section
1028A: Hawaii (5.1%, n=8), Northern Alabama (4.9%, n=20), Southern Florida (4.8%, n=103),
Western Washington (4.3%, n=28), and Eastern Pennsylvania (4.1%, n=37).
4.

Application of Section 1028A

Because the statutes punishing identity theft overlap in the conduct they proscribe, and
only section 1028A carries a mandatory minimum penalty, the Commission conducted additional
analyses to determine whether any specific offense or offender characteristics are associated with
convictions of offenses under section 1028A. These analyses indicate that identity theft
offenders who commit more severe identity theft offenses or who have more significant criminal

817

See Table D-18 In Appendix D of this Report.

334

histories are generally more likely to be convicted of an offense under section 1028A than
identity theft offenders with less severe offenses or who have less significant criminal histories.
As an initial matter, it does not appear that offender demographic characteristics are
associated with the application of section 1028A. In fiscal year 2010, there are only minimal
demographic differences between identity theft offenders convicted of an offense under section
1028A and identity theft offenders who were not. See Table 11-1.
With respect to offense severity, it appears that identity theft offenders who committed
somewhat more severe offenses, as measured by the amount of the loss and the number of
victims involved in the offense, were more likely to be convicted of an offense under section
1028A. The Commission compared the amount of loss and the number of victims among
identity theft offenders sentenced pursuant to USSG §2B1.1 by mandatory minimum status.818
Identity theft cases involving a conviction of an offense under section 1028A had a median loss
amount ($75,836) that was 28.2 percent higher than the median loss amount in identity theft
cases not involving a conviction of an offense under section 1028A ($54,400). Additionally,
identity theft cases involving a conviction of an offense under section 1028A were more likely to
have ten or more victims (in 39.5% of the cases) than identity theft cases not involving a
conviction of an offense under section 1028A (in 31.5% of the cases).
With respect to criminal history, it appears that identity theft offenders with somewhat
more significant criminal histories also were more likely to be convicted of an offense under
section 1028A. See Figure 11-4. For example, a higher percentage of identity theft offenders
convicted of an offense under section 1028A were in Criminal History VI (15.0%, n=114) than
identity theft offenders not convicted of an offense under section 1028A (9.7%, n=104).
Conversely, a lower percentage of identity theft offenders convicted of an offense under section
1028A were in Criminal History Category I (45.4%, n=345) than identity theft offenders not
convicted of section 1028A (56.9%, n=610).

818

USSG §2B1.1 contains specific offense characteristics that enhance the defendant’s offense level based on the
amount of loss and the number of victims involved in the offense. See USSG §2B1.1(b)(1) & (2).

335

Figure 11-4
Cl'imiual Hislol)' Categol)" of Idellti~" Theft Offenders
Fiscal Y...al' 1010

b~'

:\hndatol)' i'lIinimllm Stams

."'Of ComirlOd of l8 U.S,c. § 1028.-\

.Comin"" of 18 U.s.c. § 1018.-\

Pflum
100.0

80,0

.H------------------j

00.'

20,0

,..
SOUR(E.

D.

u.s. ' " - C_ _ >010 Da!afito.l1S'£1Y10.

SENTENCING OUTCOMES
1. Sentence Length

Identity theft offenders convicted of an offense under section 1028A received longer
sentences, regardless of whether they received relief from the mandatory penalty at sentencing,
than identity theft offenders not convicted of an offense under section 1028A. In fiscal year
2010, identity theft offenders not convicted of an offense under section 1028A received an
average sentence of 22 months. Identity theft offenders convicted of an offense under section
1028A and who were subject to the mandatory penalty at sentencing received an average
sentence of 50 months. Identity theft offenders convicted of an offense under section 1028A but
who were relieved of the mandatory penalty at sentencing received an average sentence of 32
months. See Figure 11-5.

336

Figure 11-5
An"l'agl" Sentence Ll"llgtb fol' Identi~' Tbl"ft Offl"lldl"l's
i'lIalldatol'~' Minimum Statu~
Fi~cal Yl"al' 1010
.SubjK{ I.. :\1:\1

b~'

."'01 SubjK{ to :\1:\1

:\Iomb'

"

50

"
"
",J.£:::
SOUIlCL

2.

u.s. ' " - c_ _ "'0 """"".

"''''TV'O.

Relief from the Mandatory Minimum Penalty

Of the 797 offenders convicted of an offense under section 1028A in fiscal year 2010,
15.4 percent (n=123) were relieved of its mandatory penalty at sentencing pursuant to 18 U.S.C.
§ 3553(e) because they rendered substantial assistance to the government. See Figure 11-6. Of
the 123 offenders who were relieved of the mandatory minimum penalty, 44.7 percent (n=55)
received a sentence that was less than the mandatory minimum penalty (i.e., less than two years).
Offenders relieved of the mandatory minimum penalty received, on average, sentences that were
48.7 percent below the guideline minimum.
Figure 11-6 presents the demographic characteristics of offenders convicted of an offense
under section 1028A and the rates of relief from the mandatory minimum penalty.

337

Pel'('elll

100.0

Figure 11-6
Tlieft Offendel's Con\"kted of an
18 U.S.c. § 102SA
"'ho 'Vue Reliew'd of the Penalt~·
Fi~('al YeaI' 2010

ofldelllit~·

OffelL~e

Under

[J Sub"autial .-\"h,"o<~

Pflum

80.0

"'.,
40.0
10.0

"'

A'

"bin

BI,le" Hi,paoi<'

O{b~t·

~hl~

hmal.

U.S.
,,'011CitiZfo Citizell

There were only slight differences in the severity of offenses committed by offenders
who were relieved of the mandatory penalty and offenses committed by those who were not
relieved of the mandatory penalty. The Commission compared the amount of the loss and the
number of victims for identity theft offenders convicted of an offense under section 1028A and
sentenced pursuant to §2B1.1 because of another count of conviction.819 Of the 797 offenders
convicted of an offense under section 1028A in fiscal year 2010, 71.1 percent (n=567) were
sentenced pursuant to §2B1.1 and are therefore included in this analysis. Of these 567 offenders,
81.1 percent (n=460) were subject to the mandatory penalty and 18.8 percent (n=107) were
relieved of the mandatory penalty. Offenders subject to the mandatory penalty had a median loss
amount of $71,452 and 38.3 percent (n=176) committed an offense involving ten or more
victims, while offenders relieved of the mandatory penalty had a median loss amount of $86,258
and 43.9 percent (n=47) committed an offense involving ten or more victims. See Table 11-3.

819

Accordingly, this analysis of offense severity and rates of relief does not include identity theft offenders whose
only count of conviction was of an offense under section 1028A or, by virtue of another count of conviction, were
sentenced pursuant to a guideline provision other than §2B1.1. The amount of the loss and number of victims are
not available for those offenders because the applicable guideline provisions did not call for the sentencing court to
make those calculations to determine the offense level.

338

Table 11-3
Guideline Sentencing Characteristics of Identity Theft Offenders
Fiscal Year 2010
Convicted of
18 U.S.C.
' 1028A

Specific Offense Characteristics
Sentenced Under '2B1.1 (# of offenders)

567

Relieved of
Application of
18 U.S.C. ' 1028A

Subject to
18 U.S.C. ' 1028A
at Sentencing

107

460

39.3

43.9

38.3

$75,836

$86,258

$71,452

Characteristics
More than 10 victims (percent)
Median Loss

There was not an association between criminal history and rates of relief from the
mandatory penalty. See Table 11-2, supra. The proportion of offenders in each criminal history
category is generally similar, regardless of whether the offender was relieved of the mandatory
penalty.
3.

Stacking of Multiple Counts

Of the 797 cases in fiscal year 2010 that involved a conviction of an offense under
section 1028A, 10.2 percent (n=82) involved convictions of multiple counts of an offense under
section 1028A. In 69 of those 82 cases, the court exercised its discretion to impose a concurrent
two-year sentence for the multiple counts of conviction of an offense under section 1028A. In
the remaining 13 cases, the court imposed consecutive sentences for the multiple counts of
conviction of an offense under section 1028A.820
4.

Demographic Characteristics and Average Sentence Length

As noted above, demographic differences do not appear to affect the application of
section 1028A to identity theft offenders. See Figure 11-7. Identity theft offenders convicted of
an offense under section 1028A received longer average sentences than offenders not convicted
of an offense under section 1028A, regardless of race. However, among those identity theft
offenders to whom section 1028A applies, the average length of sentence imposed differs by the
offender’s race. Among those offenders, Other Race and Black offenders received average
sentences that were somewhat longer (54 and 53 months, respectively) than their White and
Hispanic counterparts (45 and 40 months, respectively).
820

This number of cases is too small to allow for any meaningful conclusions about offense severity and criminal
history. The Commission’s analysis revealed, however, that the median loss amount for these cases was $269,368.
Six of the 13 cases involved loss amounts in excess of $1 million, and five of the 13 involved offenders with a
Criminal History Category VI. The Commission further analyzed the loss amounts and criminal history categories
of offenders convicted of multiple counts of an offense under section 1028A who did not receive consecutive
mandatory penalties. Of the 69 cases in which the offender was convicted of multiple counts of 1028A and the court
did not impose consecutive mandatory penalties, 59 were sentenced under §2B1.1. These 59 offenders had a
median loss amount of $102,214; 28 (47.5%) were in Criminal History Category I; and 10 (17.0%) were in Criminal
History Category VI.

339

An"l'agl" Sl"IlIl"lu'l"

"
SOUIl(1:.

b~'

Figure 11-7
&1Cl" and :\IandaIOI)' i\Iillimllm Slams
Fiscal Yl"al' 1010

Comiclfi! of 18 U.S.c. § 11128.-\

ofldl"llIil~' Thl"f1

Offl"lldl"1'S

,,"of Comirl~d of 18 U.S,c. § 1028.-\

u.s. s.-m.c c_ _ "'0 DDlIlo.l1S'£1YIO.

To study why Other Race and Black offenders convicted of an offense under section
1028A received longer sentences than White and Hispanic offenders, the Commission conducted
additional analyses related to: offense severity, criminal history, “stacking” of multiple counts of
section 1028A, and relief from application of section 1028A. First, among identity theft
offenders convicted of an offense under section 1028A, Other Race and Black offenders tend to
be convicted of more severe offenses than White and Hispanic offenders, as measured by the
amount of loss and the number of victims involved in the offense. The median loss amount in
cases involving Black offenders convicted of an offense under section 1028A was $111,323,
which was the highest median loss amount among racial groups and 46.8 percent higher than the
median loss amount for all identity theft offenders convicted of an offense under section 1028A
($75,836). Other Race offenders convicted of an offense under section 1028A had the next
highest median loss amount ($77,518), followed by Hispanic offenders ($51,021), and White
offenders ($49,615). Cases involving Other Race and Black offenders convicted of an offense
under section 1028A were also more likely to have ten or more victims (50.0% and 40.8% of the
cases, respectively) than cases involving White and Hispanic offenders convicted of an offense
under section 1028A (34.0% and 26.6% of the cases, respectively).
Second, the criminal history of identity theft offenders convicted of an offense under
section 1028A does not appear to be associated with average sentence length. For example,
White offenders convicted of an offense under section 1028A, who received the second shortest
average sentences, had the smallest percentage of offenders in Criminal History Category I
(36.4%, n=88) of any racial group, followed by Black offenders (41.6%, n=128), Other Race
offenders (48.6%, n=18), and Hispanic offenders (64.1%, n=109). Moreover, White offenders
also had the highest percentage of offenders in Criminal History Category VI (24.4%, n=59),

340

followed by Black offenders (14.6%, n=45), Other Race offenders (13.5%, n=5), and Hispanic
offenders (2.4%, n=4). See Figure 11-8.
Figure 11-8
Race of Offeudel's Comicled of an Offense Unde!' 18 U.S.C. § 1028A
b~' Climinal HistOiT Calegol}'
Fiscal YeaI' 2010
Pflum

_Whi{~

_BI,lek

_Hi,plnk

100.0 : , , - - - - - - - - - - - - - - - - - - - ,

"'..
" ..
~o.o

20.0

•••
SOURC);.

u.s. ' " - c_ _ ,.10 DDfito.l1S'£TYIO.

Third, there were too few cases involving multiple section 1028A cases to draw any
meaningful conclusions about the role of race in the decision to run multiple section 1028A
counts consecutively and, in any event, these few cases did not significantly affect the average
sentence length data. As discussed above, of the 82 cases in fiscal year 2010 that involved
multiple section 1028A counts, courts imposed consecutive sentences in only 13 of them. Of the
13 cases in which courts imposed consecutive sentences, nine (69.2%) involved Black offenders.
Fourth, the rates of relief for offenders convicted of an offense under section 1028A,
when compared by race of the offender, did not produce higher average sentences for Other Race
and Black offenders. Other Race and Black offenders convicted of an offense under 1028A
received relief under section 3553(e) at higher rates than White and Hispanic offenders convicted
of an offense under section 1028A. See Figure 11-5.
E.

PRISON IMPACT

The number of offenders convicted of aggravated identity theft is a small but slowly
increasing part of the federal prison population. Of the 191,757 offenders in prison on
September 30, 2010, 1,649 (0.9%) were convicted of an offense under section 1028A. By
contrast, of the 173,922 offenders in prison on September 30, 2006, 273 (0.2%) were convicted
of an offense under section 1028A. The number of prisoners convicted of an offense under
section 1028A grew in subsequent years to 639 of 179,635 prisoners in 2007 (0.4%); 1,259 of
183,717 prisoners in 2008 (0.7%); and 1,649 of 188,876 prisoners in 2009 (0.9%).
341

F.

SUMMARY

With respect to mandatory minimum penalties and identity theft offenses, Commission
analyses demonstrate the following:
Offenses and Offenders
•

In fiscal year 2010, 1,870 offenders (2.6%) were convicted of an identity theft offense.
Of those 1,870 offenders, 797 (42.6%) were convicted of an offense under section
1028A.

•

Over 40 percent of offenders convicted of an offense under section 1028A were Black
(40.2%), followed by White (32.8%), Hispanic (22.3%), and Other Race (4.7%)
offenders.

•

The majority of offenders convicted of an offense under section 1028A (71.8%) were
male.

•

United States citizens accounted for 74.4 percent of offenders convicted of an offense
under section 1028A.

•

A disproportionately large number of cases involving a conviction of an offense under
section 1028A came from only three judicial districts in fiscal year 2010: Southern
Florida (n=103, 12.9% of all cases involving a conviction of an offense under section
1028A); Eastern Pennsylvania (n=37, 4.6%); and Eastern Virginia (n=30, 3.7%).

Application and Relief
•

Of the 797 offenders convicted of an offense under section 1028A in fiscal year 2010, 6.8
percent (n=54) proceeded to trial. By contrast, of the 1,072 identity theft offenders not
convicted of an offense under section 1028A, 2.1 percent (n=22) proceeded to trial.

•

Identity theft offenders who committed more severe identity theft offenses or who had
more significant criminal histories were generally more likely to be convicted of an
offense under section 1028A.
o

Identity theft cases involving a conviction of an offense under section 1028A had
a 28.2 percent higher median loss amount and were more likely to involve ten or
more victims than identity theft cases that did not involve such a conviction.

o

A higher percentage of identity theft offenders convicted of an offense under
section 1028A were in Criminal History Category VI, and a lower percentage
were in Criminal History Category I, than identity theft offenders not convicted of
an offense under section 1028A.

342

•

•

In fiscal year 2010, 15.4 percent of offenders convicted of an offense under section
1028A were relieved of the mandatory penalty at sentencing because they rendered
substantial assistance to the government.
o

Other Race offenders convicted of an offense under section 1028A obtained relief
from the mandatory penalty at the highest rate (18.9%), followed by Black
(17.2%), Hispanic (14.7%), and White (13.1%) offenders.

o

Female offenders convicted of an offense under section 1028A obtained relief
from the mandatory penalty at a higher rate (20.0%) than male offenders
convicted of such an offense (13.6%).

o

United States citizen offenders convicted of an offense under section 1028A
obtained relief from the mandatory penalty at a higher rate (17.3%) than noncitizens convicted of such an offense (10.3%).

Of the 797 cases in fiscal year 2010 that involved a conviction of an offense under
section 1028A, 10.2 percent (n=82) involved convictions of multiple counts of an offense
under section 1028A. In 69 of those 82 cases, the court exercised its discretion to impose
the mandatory penalties for violating section 1028A concurrently.

Sentencing
•

In fiscal year 2010, 84.6 percent of offenders convicted of an offense under section
1028A were subject to the mandatory minimum penalty at sentencing.

•

In fiscal year 2010, the rate at which offenders convicted of an offense under section
1028A were subject to the mandatory minimum penalty at sentencing varied by race,
gender and citizenship.

•

o

White offenders were subject to the mandatory minimum penalty at sentencing
most often, in 86.9 percent of their offenses carrying such a penalty, followed by
Hispanic (85.3%) and Black (82.8%) offenders. Other Race offenders were
subject to the mandatory minimum penalty at sentencing the least often, in 81.1
percent of their cases.

o

Male offenders were subject to the mandatory minimum penalty at sentencing
more often than female offenders (86.4% of their cases, compared to 80.0% of
cases involving female offenders).

o

Non-citizens were subject to the mandatory minimum penalty at sentencing more
often than United States citizens (89.7% of their cases, compared to 82.7% of
cases involving non-citizen offenders).

The average sentence for offenders convicted of an offense under section 1028A who
were subject to the mandatory penalty (i.e., who did not receive relief for rendering
343

substantial assistance) was 50 months. The average sentence for offenders convicted of
an offense under section 1028A but who were relieved of the mandatory penalty was 32
months. By contrast, identity theft offenders not convicted of an offense under section
1028A received an average sentence of 22 months.
•

Among offenders convicted of an offense under section 1028A, Other Race and Black
offenders received higher average sentences (53 and 54 months, respectively) than White
and Hispanic offenders (45 and 40 months, respectively).

•

The higher average sentences for Other Race and Black offenders convicted of an offense
under section 1028A may be attributable to the fact that those offenders tended to be
convicted of more severe offenses than White and Hispanic offenders, as measured by the
amount of loss and number of victims involved in the offense.

Prison Impact
•

At the end of fiscal year 2010, 0.9 percent of the offenders in the custody of the Bureau
of Prisons were convicted of an offense under section 1028A. The percentage of
prisoners convicted of an offense under section 1028A has slowly increased over time,
rising from 0.2% of the federal prison population at the end of fiscal year 2006.

344

Chapter 12

CONCLUSIONS AND RECOMMENDATIONS
A.

INTRODUCTION

The statutory directive for this report requires the Commission to assess the compatibility
of mandatory minimum penalties with the federal guideline system established under the
Sentencing Reform Act and as modified by the Supreme Court’s decision in Booker v. United
States, and to discuss mechanisms other than mandatory minimum sentencing laws by which
Congress may take action with respect to sentencing policy. To fulfill this part of the statutory
directive, this chapter first provides general findings and conclusions regarding mandatory
minimum penalties and the federal sentencing guidelines and then provides specific
recommendations regarding the four major offense types studied in this report.
B.

GENERAL CONCLUSIONS AND RECOMMENDATIONS

Mandatory minimum penalties have existed in varying number and severity throughout
the nation’s history,821 and their role in the federal criminal justice system has long been debated
by members of Congress, judges, prosecutors, defense attorneys, academics, and the public.
Stakeholders in the federal criminal justice system continue to hold a range of views regarding
mandatory minimum penalties.822 While there is a spectrum of views among members of the
Commission regarding mandatory minimum penalties, the Commission uniformly believes,
consistent with the general findings of the 1991 Commission Report, that a strong and effective
sentencing guidelines system best serves the purposes of the Sentencing Reform Act. However,
if Congress decides to exercise its power to direct sentencing policy by enacting mandatory
minimum penalties, the Commission believes such penalties should (1) not be excessively
severe, (2) be narrowly tailored to apply only to those offenders who warrant such punishment,
and (3) be applied consistently. Guided by these general principles, the Commission believes
that the current system of mandatory minimum penalties can be improved.
As discussed in more detail below, certain mandatory minimum provisions apply too
broadly, are set too high, or both, to warrant the prescribed minimum penalty for the full range of
offenders who could be prosecuted under the particular criminal statute. This has led to
inconsistencies in application of certain mandatory minimum penalties, as shown by the
Commission’s data analyses and confirmed by interviews of prosecutors and defense attorneys
who practice in 13 district courts.823 These analyses and interviews indicate that different
charging and plea practices have developed in various districts that result in the disparate
821

Chapter 2 provides an overview of the history of mandatory minimum penalties.

822

Chapter 5 provides an overview of the views held by stakeholders in the federal criminal justice system with
respect to mandatory minimum penalties. Appendix G and Appendix J summarize testimony before the
Commission pertaining to mandatory minimum penalties.

823

Chapter 6 summarizes the results of field interviews conducted with federal prosecutors and defense attorneys,
which included discussions of charging and plea practices in their respective districts.

345

application of certain mandatory minimum penalties, particularly those provisions that require
substantial increases in sentence length.
The Commission believes that these findings can largely be traced to the structure and
severity of mandatory minimum penalties. Mandatory minimum provisions typically use a
limited number of aggravating factors to trigger the prescribed penalty, without regard to the
possibility that mitigating circumstances surrounding the offense or the offender may justify a
lower sentence. For such a sentence to be reasonable in every case, the factors triggering the
mandatory minimum penalty must always warrant the prescribed mandatory minimum penalty,
regardless of the individualized circumstances of the offense or the offender. This cannot
necessarily be said for all cases subject to certain mandatory minimum penalties. For this
reason, Congress should consider whether a statutory “safety valve” mechanism similar to the
one available for certain drug trafficking offenders at 18 U.S.C. § 3553(f) may be appropriately
tailored for low-level, non-violent offenders convicted of other offenses carrying mandatory
minimum penalties.824
In contrast to mandatory minimum penalties, the guidelines prescribe proportional
individualized sentences based on many factors relating to the seriousness of the offense, the
harms associated with the commission of the offense, the culpability of the offender, and the
criminal history and other characteristics of the offender.825 This multi-dimensional approach to
sentencing seeks to avoid the problems inherent in the structure of mandatory minimum penalties
and, for this reason, best serves the purposes of the Sentencing Reform Act.
The Commission, however, recognizes that Supreme Court decisions rendering the
guidelines advisory and establishing a deferential appellate standard of review 826 have increased
inconsistencies in sentencing practices. Since Booker, the national rate of offenders receiving a
government sponsored below range sentence has been relatively stable, with 25.4 percent of
offenders receiving government sponsored below range sentences in fiscal year 2010827
compared to 24.6 percent in fiscal year 2006.828 In contrast, the national rate of offenders
824

Expansion of the safety valve would be consistent with the intent of 28 U.S.C. § 994(j), which directs the
Commission to “insure that the guidelines reflect the general appropriateness of imposing a sentence other than
imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence
or an otherwise serious offense . . . .” Expansion of the safety valve may also conserve prosecutorial and judicial
resources by increasing the number of offenders who plead guilty rather than proceed to trial. Drug offenders who
were eligible for the safety valve pleaded guilty at a higher rate (99.6%) than all drug offenders convicted of an
offense carrying a mandatory minimum penalty (95.5%) and drug offenders not convicted of an offense carrying a
mandatory minimum penalty (98.4%). See supra Chapter 8(C)(2).

825

Chapter 3 discusses the structural differences in how mandatory minimum penalties and the guidelines determine
sentences.

826

See Booker v. United States, 543 U.S. 220 (2005); Gall v. United States, 552 U.S. 38 (2007); Kimbrough v.
United States, 552 U.S. 85 (2007); Rita v. United States, 551 U.S. 338 (2007); Spears v. United States, 555 U.S. 261
(2009); Pepper v. United States, 131 S. Ct. 1229 (2011).

827

See Commission, 2010 Sourcebook of Federal Sentencing Statistics 50 (2010).

828

See Commission, 2006 Sourcebook of Federal Sentencing Statistics 52 (2006). The composition of government
sponsored below range sentences has changed somewhat since fiscal year 2006. The percent of offenders receiving

346

receiving a non-government sponsored below range sentence has increased from 12.1 percent in
fiscal year 2006 to 17.8 percent in fiscal year 2010.829 Geographical variations also have
increased since Booker. In fiscal year 2010, the rate of non-government sponsored below range
sentences ranged from 12.0 percent (Tenth Circuit) to 37.3 percent (Second Circuit), a difference
of 25.3 percentage points.830 By comparison, in fiscal year 2006, the rate of non-government
sponsored below range sentences ranged from 7.3 percent (Fifth Circuit) to 24.1 percent (Second
Circuit), a difference of 16.8 percentage points.831 Similar variations occur at the district level.
Recent analyses also indicate that some sentencing differences may be associated with
specific demographic characteristics, and these differences may be increasing post-Booker.832
For example, a recent Commission analysis found that, after controlling for relevant factors,
Black male offenders received longer sentences than White male offenders, and that those
differences in sentence length have increased steadily since Booker.833 Female offenders of all
races received shorter sentences than male offenders, and non-citizen offenders received longer
sentences than offenders who were United States citizens, after controlling for relevant factors.834
The Commission is concerned about these developments and stands ready to work with Congress
on possible legislative reforms to strengthen and improve the sentencing guidelines system.
Despite these developments, the Supreme Court’s decisions and the Commission’s
sentencing data make clear that the guidelines continue to play a central role in federal
sentencing. The Supreme Court has stated that “[a]s a matter of administration and to secure
nationwide consistency, the Guidelines should be the starting point and the initial benchmark” in
sentencing.835 Sentencing data show that the guidelines continue to play this role. The
a government sponsored below range sentence pursuant to an Early Disposition Program authorized by the Attorney
General of the United States and the United States Attorney for the district in which the court resides has increased
from 10.1 percent in fiscal year 2006 to 13.8 percent in fiscal year 2010, which reflects the increasing immigration
caseload in the federal docket. The percent of offenders receiving a government sponsored below range sentence for
providing substantial assistance to the government has decreased from 14.4 percent to 11.5 percent during the same
time period. See Commission, 2010 Sourcebook of Federal Sentencing Statistics 63 (2010).
829

See Commission, 2010 Sourcebook of Federal Sentencing Statistics 63 (2010).

830

See id. at 50–62.

831

See Commission, 2006 Sourcebook of Federal Sentencing Statistics 52–64 (2006).

832

See Commission, Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s
Multivariate Regression Analysis 1–2 (2010).

833

Id. at 2.

834

Id.

835

Gall, 552 U.S. at 49. Accordingly, district courts are required to properly calculate and consider the guidelines
and the grounds for departure provided in the policy statements when sentencing, even though after such
consideration courts may impose non-guidelines sentences, or “variances.” See 18 U.S.C. § 3553(a)(4), (a)(5);
Booker, 543 U.S. at 264 (“The district courts, while not bound to apply the Guidelines, must . . . take them into
account when sentencing.”); Rita, 551 U.S. at 351 (stating that a district court should begin all sentencing
proceedings by correctly calculating the applicable guideline range).

347

overwhelming majority of offenders — 80.4 percent in fiscal year 2010 — still receive a
sentence either within the guideline sentencing range or below the guideline sentencing range for
a reason sponsored by the government (most often congressionally authorized reductions for
substantial assistance to the government or an expedited guilty plea pursuant to an Early
Disposition Program approved by the Attorney General).836
Furthermore, average sentences for all major offense types continue to parallel the
average guideline minimum across time periods, including post-Booker.837 This ongoing trend
shows how changes in offense severity and offender culpability, as measured by the guidelines,
affect sentencing decisions over time and demonstrates that the guidelines continue to have a
strong gravitational pull on federal sentencing practices. Thus, although increasing differences
in sentencing practices suggest the need to strengthen the current guidelines system, effective
guidelines may provide a viable alternative to mandatory minimum penalties.
C.

SPECIFIC CONCLUSIONS AND RECOMMENDATIONS

Consistent with the general conclusions and recommendations set forth above, the
Commission provides specific conclusions and recommendations with respect to each of the
major offense types studied in this report: drug offenses, firearms offenses, sex offenses, and
identity theft offenses. 838
The Commission makes these recommendations cognizant of its responsibility to “take
into account the nature and capacity of the penal, correctional, and other facilities available,”839
and notes that 208,188 inmates were in the custody of the BOP as of December 31, 2009. This
figure is almost triple the number of inmates in the custody of BOP on December 31, 1991, and
is 35 percent over the BOP’s rated capacity for its 116 facilities.840 While mandatory minimum
penalties are only one of a myriad of factors that have contributed to the increased number of
inmates in the custody of the BOP and its corresponding budget of over $6 billion in fiscal year
2010,841 the Commission recommends that Congress request prison impact analyses from the
Commission as early as possible in its legislative process whenever it considers enacting or
836

See USSG §§5K1.1, 5K3.1; Commission, 2010 Sourcebook of Federal Sentencing Statistics 50 (2010).

837

See Figure 4-4 and accompanying text in Chapter 4 (All Offenses); Figures 8-6 to 8-7 and accompanying text in
Chapter 8 (Drug Offenses); Figures 10-8 to 10-11 and accompanying text in Chapter 10 (Sex Offenses); see also
Commission, Preliminary Quarterly Data Report: 2nd Quarter Release 32–37 (2011) (comparing average sentence
and average guideline minimum over time for multiple offense types).

838

Many of the 195 statutes carrying mandatory minimum penalties listed in Appendix A are rarely, if ever, used.
Compare Table A-1 (Current Statutory Provisions Requiring Mandatory Minimum Terms of Imprisonment) in
Appendix A, with Table D-3 (Number of Convictions and Mean Sentence for Mandatory Minimum Statutes) in
Appendix D. Congress may wish to consider whether such penalties should be revised in light of their infrequent
use.

839

28 U.S.C. § 994(g).

840

See Figure 4-8, note 456, and accompanying text in Chapter 4.

841

See text accompanying note 455 in Chapter 4.

348

amending criminal penalties. These analyses may assist Congress in focusing increasingly
strained federal prison resources on the offenders who commit the most serious offenses.
1.

Drug Offenses
a.

Importance of drug quantity and other factors

As discussed in Chapter 2, the Anti-Drug Abuse Act of 1986842 established the basic
framework of mandatory minimum penalties currently applicable to federal drug trafficking
offenses. The drug quantities triggering those mandatory minimum penalties, which range from
five years to life imprisonment, differ for various drugs and in some cases different forms of the
same drug. The available legislative history indicates that Congress intended to create a twotiered penalty structure under which “serious” traffickers would be subject to five-year
mandatory minimum penalties and “major” traffickers would be subject to ten-year mandatory
minimum penalties.843 Congress determined that drug quantity would serve as the proxy to
identify those categories of traffickers.844 The Commission responded to the mandatory
minimum penalties by establishing base offense levels in the Drug Quantity Table at §2D1.1(c)
that correspond to the first range on the sentencing table that exceeds the mandatory minimum
(i.e., levels 26 and 32, respectively, for the commonly applied five- and ten-year mandatory
minimums) and extrapolating upward and downward to set guidelines sentencing ranges for all
drug quantities.845
Drug quantity, however, is just one of many important factors in determining the
appropriate sentence for drug offenders. In addition to the guideline adjustments that apply to all
offense types, such as aggravating role,846 mitigating role,847 and acceptance of responsibility,848
the Commission has amended §2D1.1 numerous times over the years — many times in response
842

Pub. L. No. 99–570, 100 Stat. 3207.

843

See H.R. Rep. No. 99–845, pt. 1, at 11-12 (1986); 132 Cong. Rec. 27,193–194 (Sept. 30, 1986) (statement of
Sen. Byrd); 132 Cong. Rec. 22,993 (Sept. 11, 1986) (statement of Rep. LaFalce).

844

See Cong. Rec. 27,193–194 (Sept. 30, 1986) (statement of Sen. Byrd). For more discussion of the enactment of
the Anti-Drug Abuse Act of 1986, see supra Chapter 2(F)(2).

845

As explained in Chapter 3, incorporating the mandatory minimum penalties in this manner serves multiple
purposes. First, it fulfills the Commission’s statutory requirements to promulgate guidelines that are “consistent
with all pertinent provisions” of federal law, 28 U.S.C. § 994(a) & (b)(1), and to consider “the community view of
the gravity of the offense,” 28 U.S.C. § 994(c)(4), to the extent that mandatory minimum penalties reflect
Congress’s expression of the community view of such offenses. Second, it provides for graduated, proportional
increases based on drug quantity for the full range of possible drug types and quantities. Third, it reflects the
Commission’s concurrence with Congress’s judgment that the quantity of drug involved in an offense is an
important measure of the seriousness of the offense and the culpability of the offender. See supra Chapter 3(C).

846

USSG §3B1.1.

847

USSG §3B1.2.

848

USSG §3E1.1.

349

to congressional directives — to account for a variety of aggravating and mitigating factors.
Section 2D1.1 as initially promulgated in 1987 contained three alternative base offense levels
and one specific offense characteristic.849 Today, §2D1.1 contains five alternative base offense
levels and 16 specific offense characteristics to account for factors such as meeting the statutory
safety valve criteria, death or serious bodily injury resulting from the use of a drug, possession of
a dangerous weapon, use of certain aircrafts and submersible vessels, distribution in a prison or
correctional facility, distribution through mass-marketing, importation and manufacture of
amphetamine and methamphetamine, and environmental risks and risks of harm to people
created by certain methamphetamine offenses.850
Most recently, in response to congressional directives in the Fair Sentencing Act of
2010,851 the Commission amended §2D1.1 to expand upon the previously existing “mitigating
role cap” at subsection (a)(5) to provide a more lenient “minimal role cap” and added five
specific offense characteristics to account for the use or threat of violence, bribery of a law
enforcement officer to facilitate the commission of the offense, maintenance of a premises for
the purpose of manufacturing or distributing a controlled substance, certain specified aggravating
conduct by offenders who receive the aggravating role adjustment, and certain specified
mitigating conduct by offenders who receive the 4-level minimal participant adjustment.852
b.

Relationship between current mandatory minimum penalties and offender
function

Commission analysis indicates that the quantity of drugs involved in an offense is not as
closely related to the offender’s function in the offense as perhaps Congress expected. As
discussed in Chapter 8, the Commission studied a 15-percent sample of drug cases reported to
the Commission in fiscal year 2009 and assigned each offender to one of 21 separate offense
functions by reviewing the offense conduct section of the presentence report. The functions
ranged from higher-level functions such as High-Level Supplier/Importers to lower-level
functions such as Couriers and Mules. Offenders performing higher-level functions tended to be
convicted of a drug offense carrying a mandatory minimum penalty more often than offenders
performing lower-level functions. For example, offenders who acted as Managers, Supervisors,
and High-Level Suppliers/Importers were convicted of drug offenses carrying mandatory
minimum penalties in the overwhelming majority of their cases (92.3%, 84.2%, and 82.8%,
respectively).853 However, offenders who performed lower-level functions such as Couriers and
Mules also were convicted of drug offenses carrying a mandatory minimum penalty in a
significant proportion of their cases (49.6% and 43.1%, respectively).854 For every function, the
849

USSG §2D1.1 (Nov. 1987).

850

USSG §2D1.1 (Nov. 2011).

851

Pub. L. No. 111–220, 124 Stat. 2372.

852

See USSG App. C, amend. 748 (effective Nov. 1, 2010).

853

See Figure 8-9 and accompanying text in Chapter 8.

854

See id.

350

quantity of drugs involved in the offense on average resulted in a median base offense level that
included or exceeded the five-year mandatory minimum penalty.855
While the current mandatory minimum penalties for drug offenses may apply more
broadly than originally intended by Congress, the impact of such penalties on certain drug
offenders who perform lower-level functions is significantly ameliorated by the combined effect
of the safety valve and downward guideline adjustments.856 The Commission’s analysis shows
that offenders who performed lower-level functions were more likely to qualify for the safety
valve than offenders who performed higher-level functions. For example, offenders acting as
Mules and Couriers who were convicted of a drug offense carrying a mandatory minimum
penalty qualified for the safety valve (either by itself or in combination with substantial
assistance) in 79.2 percent and 67.9 percent of their cases, respectively, compared to offenders
who performed higher-level functions such as High-Level Suppliers/Importers (26.7%),
Organizer/Leaders (11.6%), Wholesalers (19.4%), and Managers (13.9%).857
The high rate of safety valve relief for offenders who performed lower-level functions
has enabled downward adjustments in the guidelines to differentiate these least serious drug
offenders from the more serious drug offenders in many cases. For example, offenders convicted
of a statute carrying a mandatory minimum penalty who acted as Mules and Couriers received a
mitigating role adjustment under §3B1.2 in 51.4 percent and 39.8 percent of their cases,
respectively. Conversely, offenders convicted of a statute carrying a mandatory minimum
penalty who acted as Organizer/Leaders, Managers, and Supervisors received an aggravating
role adjustment under §3B1.1 in 74.7 percent, 52.8 percent, and 37.5 percent of their cases,
respectively. As a result of these and other guideline adjustments, such as the “mitigating role
cap” in §2D1.1(a), offenders who performed lower-level functions received significantly lower
final offense levels than offenders who performed higher-level functions.858 For example, the
median final offense level for Mules (level 20) and Couriers (level 21) was significantly lower
than for High-Level Suppliers/Importers (level 29), Organizer/Leaders (level 34), Managers
(level 33), and Supervisors (level 28).859

855

See Figure 8-10 and accompanying text in Chapter 8.

856

See supra Chapter 8(C)(7); see also supra Chapter 2(H)(3) (detailing the enactment of the statutory safety valve
in 1994) and notes 116-127 and accompanying text in Appendix E (describing case law interpreting and applying
the safety valve).

857

See Figure 8-11 and accompanying text in Chapter 8. In contrast, offenders performing lower-level functions
tended to receive relief for substantial assistance (either by itself or in combination with the safety valve) at lower
rates than offenders performing higher-level functions. Managers (50.0%), Organizers/Leaders (39.1%), and
Wholesalers (33.8%), for example, received relief for substantial assistance significantly more often than Couriers
(27.1%) and Mules (19.5%). See id.

858

See Figures D-3 and D-4 in Appendix D.

859

See Figure 8-10 in Chapter 8.

351

As a result of the combined effect of the safety valve and applicable guideline
adjustments, offenders who performed lower-level functions received significantly shorter
average sentences than offenders who performed higher-level functions. For example, the
average sentences for Mules (29 months) and Couriers (39 months) were significantly shorter
than for High Level Suppliers/Importers (101 months), Organizer/Leaders (154 months),
Wholesalers (103 months), and Managers (147 months).860
c.

Cumulative impact of criminal history

Criminal history can have a disproportionate and excessively severe cumulative
sentencing impact on certain drug offenders. The impact of criminal history on drug sentences is
in part a function of the minimum term of imprisonment required by statute, and in part a
function of the interaction between the mandatory minimum penalties, the safety valve, and the
guidelines. For this reason, a single criminal history event can have a three-fold impact on the
sentence of certain drug offenders. First, the mandatory minimum penalties provided by 21
U.S.C. §§ 841 or 960 double from five to ten years of imprisonment, and from ten to 20 years of
imprisonment if the offender has a prior conviction for a “felony drug offense.”861 An offender
with two or more prior drug felonies is subject to a mandatory minimum term of life
imprisonment under section 841.862 The statute also defines the term “felony drug offense”
broadly to mean an offense that is “punishable by imprisonment for more than one year under
any law of the United States or of a State or foreign country that prohibits or restricts conduct
relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant
substances.”863 Second, the guidelines provide graduated sentencing increases for criminal
history along the Criminal History axis of the Sentencing Table. Third, an offender with more
than one criminal history point under the guidelines is ineligible for the statutory safety valve864
and its guideline counterparts.865
These cumulative impacts866 can result in disproportionate and excessively severe
sentences in certain cases. Commission data show inconsistent application of certain mandatory
860

See Figure 8-12 in Chapter 8.

861

21 U.S.C. §§ 841(b)(1)(A)–(B), 960(b)(1)–(2).

862

21 U.S.C. §§ 841(b)(1)(A).

863

21 U.S.C. § 802(44).

864

See 18 U.S.C. § 3553(f)(1).

865

See USSG §§2D1.1(b)(16), 5C1.2.

866

Weapon involvement has a similar cumulative impact on certain drug offenders. If the offender is convicted of
violating 18 U.S.C. § 924(c), a mandatory minimum penalty ranging from five years to life imprisonment applies.
Alternatively, if the offender is not convicted under 18 U.S.C. § 924(c) but a dangerous weapon was possessed
during the offense, USSG §2D1.1 provides an enhancement of two levels (an approximate 25% increase in sentence
length). In either case, an offender who possesses a firearm or other dangerous weapon (or induces another
participant to do so) in connection with the offense is excluded from safety valve eligibility under 18 U.S.C.
§ 3553(f)(2).

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minimum penalties, particularly in cases in which 21 U.S.C. § 851 could apply.867 Interviews of
prosecutors and defense attorneys in 13 districts confirm that different districts have adopted
different practices with respect to filing the necessary information required to seek an enhanced
penalty under 21 U.S.C. § 851 in part because of its severity.868
The structure of the recidivist provisions in 21 U.S.C. §§ 841 and 960 fosters inconsistent
application, in part, because their applicability turns on the varying statutory maximum penalties
for state drug offenses. The term “felony drug offense” as used in sections 841 and 960 “means
an offense that is punishable by imprisonment for more than one year under any law of the
United States or of a state . . . that prohibits or restricts conduct relating to narcotic drugs,
marihuana, anabolic steroids, or depressant or stimulant substances.”869 States have adopted
differing punishments for drug offenses, so that conduct qualifying as a “felony drug offense” in
one state may not qualify as such an offense in another state. Furthermore, the recidivist
provisions apply to a broad range of offenders, which vary depending on the state in which the
prior conviction occurred. For example, states have adopted differing approaches with respect to
the punishment of simple possession of controlled substances. As a result, some offenders with
prior convictions for simple possession may be subject to the enhanced penalties under sections
841 and 960 even though other offenders with prior state or federal convictions for simple
possession may not.870 Some states also classify offenses as misdemeanors even though the
crime is punishable by more than one year of imprisonment. These offenses are considered
“felony drug offenses” under federal law despite the state’s classification of the offense as a
misdemeanor.871
d.

Demographic effects

Notable differences exist in the application of drug mandatory minimum penalties among
various demographic groups, but these differences are largely attributable to the cumulative
effects of criminal history and weapon involvement. While these differences are attributable to
867

See supra Chapter 8(I). Mandatory minimum penalties for drug offenses typically increase the applicable
mandatory minimum penalty when the drug offender is convicted of a second or subsequent felony drug offense.
See 21 U.S.C. § 841(b). For these increased penalties to apply, the government must affirmatively seek the
enhanced penalties by filing an information with the court before trial, or before a guilty plea is entered, pursuant to
21 U.S.C. § 851(a). See supra Chapter 8(I)(1).
868

For further discussion of the different practices adopted with respect to the filing of information required under
section 851, see supra Chapter 6(D)(1) and Chapter 8(I).

869

21 U.S.C. § 802(44); see also 21 U.S.C. § 951(b).

870

See Lopez v. Gonzalez, 549 U.S. 47, 54 & n.4 (2006) (noting the states’ different approaches to classifying
simple possession offenses); Michael M. O’Hear, Statutory Interpretation and Direct Democracy: Lessons from the
Drug Treatment Initiatives, 40 HARV. J. ON LEGIS. 281, 288–89 (2003) (same); see also United States v. Brown,
383 F. App’x 543, 546 (7th Cir. 2010) (“We are not aware of any court holding that a state felony drug conviction
for possession does not trigger the increased mandatory minimum in 21 U.S.C. § 841(b)(1)(B) because simple
possession is not a felony in the federal system.”).
871

See Burgess v. United States, 553 U.S. 124, 127 (2008) (“A state drug offense punishable by more than one
year . . . qualifies as a ‘felony drug offense,’ even if state law classifies the offense as a misdemeanor.”).

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legally relevant factors, they may create perceptions of unfairness and unwarranted disparity that
cause concern insofar as they may foster disrespect for and lack of confidence in the federal
criminal justice system.872
The cumulative sentencing impacts of criminal history and weapon involvement appear
to be particularly acute for Black drug offenders. Three-quarters (75.6%) of Black drug
offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2010
were excluded from safety valve eligibility due to criminal history scores of more than one
point.873 Black drug offenders in Criminal History Category I who were convicted under
18 U.S.C. § 924(c) or who received the weapon involvement enhancement in the drug guideline
constituted an additional 2.4 percent and 3.3 percent, respectively, of Black drug offenders
sentenced in fiscal year 2010. These figures largely explain why only 14.4 percent of Black
offenders convicted of a drug offense carrying a mandatory minimum penalty received safety
valve relief (either by itself or in combination with substantial assistance), compared to 48.4
percent of Other Race offenders, 46.3 percent of Hispanic offenders, and 39.5 percent of White
offenders.874
These differences in safety valve eligibility in turn drive differences in the application of
mandatory minimum penalties among the various racial groups. Blacks account for 30.3 percent
of drug offenders convicted of an offense carrying a mandatory minimum penalty. However,
Blacks account for a higher percentage — 40.4 percent — of drug offenders subject to a
mandatory minimum penalty at sentencing, even though they receive relief for substantial
assistance more often than offenders in any other racial group.875 This result occurs because
Black drug offenders qualify for the safety valve less often than any other racial group.876 In
contrast, Hispanics account for 44.0 percent of drug offenders convicted of an offense carrying a
mandatory minimum penalty, and 46.3 percent of those Hispanic offenders qualify for the safety
valve. As a result, Hispanics account for only 39.6 percent of drug offenders subject to a
mandatory minimum penalty at sentencing.877

872

See Commission, Report to the Congress: Cocaine and Federal Sentencing Policy 102-03 (2002) (“Perceived
improper racial disparity fosters disrespect for and lack of confidence in the criminal justice system . . . .”); see also
Mandatory Minimums and Unintended Consequences: Hearing on H.R. 2934, H.R. 834, and H.R. 1466 Before the
Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. 38
(prepared statement of Chief Judge Julie E. Carnes on behalf of the Judicial Conference of the United States) (“To
function successfully, our judicial system must enjoy the respect of the public. The robotic imposition of sentences
that are viewed as unfair or irrational greatly undermines that respect.”).

873

See supra Chapter 8(C)(4).

874

See Figure 8-4 and accompanying text in Chapter 8.

875

See Table 8-1, Figure 8-4, and accompanying text in Chapter 8.

876

See Figure 8-4 in Chapter 8.

877

See Table 8-1, Figure 8-4, and accompanying text in Chapter 8.

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United States citizens account for 70.0 percent of drug offenders convicted of an offense
carrying a mandatory minimum penalty. However, United States citizens account for a higher
percentage — 79.9 percent — of drug offenders subject to a mandatory minimum penalty at
sentencing, even though they receive relief for substantial assistance more often than noncitizens, because they qualify for the safety valve significantly less often than non-citizens
(24.6% for United States citizens compared to 59.7% for non-citizens).878 The difference in the
rates of safety valve application is attributable to the fact that non-citizen offenders tend to have
fewer criminal history points than United States citizen offenders, which may in part be due to
the exclusion of sentences resulting from foreign convictions from criminal history calculations
under Chapter Four of the Guidelines Manual.879
Male offenders also account for a higher percentage (94.0%) of drug offenders subject to
a mandatory minimum penalty at sentencing than their proportion (89.8%) of drug offenders
convicted of an offense carrying a mandatory minimum penalty. This difference is attributable
to male offenders qualifying for the safety valve less often than female offenders.880
e.

Recommendations for drug offenses

In light of these findings and observations, the Commission recommends that Congress
consider the following suggestions for amending the mandatory minimum penalties for drug
offenses.
i.

Safety valve eligibility

Congress should consider expanding the safety valve at 18 U.S.C. § 3553(f) to include
certain offenders who receive two, or perhaps three, criminal history points under the guidelines.
Although further study would be needed before considering any specific proposals (for example,
study of the type of prior offenses committed by offenders who receive two and three criminal
history points), the Commission’s review of available data for fiscal year 2010 indicates that
1,127 offenders convicted of a drug offense carrying a mandatory minimum penalty would have
been eligible for the safety valve if it had included non-violent drug offenders in Criminal
History Category II (offenders who receive two or three criminal history points).881 Of these
878

See Table 8-1, Figure 8-4, and accompanying text in Chapter 8.

879

See USSG §4A1.2(h). Foreign convictions are excluded because of uncertainty regarding whether the offender
received adequate due process. Furthermore, it may be uncertain whether the defendant in fact has any such
convictions because “[i]t is often difficult to obtain the foreign defendant’s criminal history from the foreign
jurisdiction.” See Michael Edmond O’Neill et al., Past as Prologue: Reconciling Recidivism and Culpability, 73
FORDHAM L. REV. 245, 253 n.49 (2004). A court, however, may consider prior foreign convictions in determining
the adequacy of the defendant’s criminal history category, see USSG §4A1.2(h).
880

See Table 8-1, Figure 8-4, and accompanying text in Chapter 8.

881

See Table D-20 (Offenders Affected by Expansion of Safety Valve to Criminal History Category II by Race and
Drug Type) in Appendix D. The breakdown of the type of drug involved in the offense for these 1,127 offenders is
methamphetamine (305), powder cocaine (301), crack cocaine (236), marijuana (206), heroin (62), and other drugs
(17).

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1,127 offenders, 260 (23.1%) offenders received three points pursuant to §4A1.1(a) for a prior
sentence of imprisonment exceeding one year and one month, and 190 (16.9%) offenders
received two points pursuant to §4A1.1(b) for a prior sentence of imprisonment of at least 60
days.882 An expansion of the safety valve would mitigate the cumulative impact of criminal
history for certain less serious offenders as measured by their criminal history score under the
guidelines.
It is important to note that an expansion of the safety valve to include certain offenders in
Criminal History Category II likely would have little effect on the demographic differences
observed in the application of mandatory minimum penalties to drug offenders. The lack of
significant effect is because the demographic characteristics of offenders who are estimated to
become eligible if the safety valve were expanded to include Criminal History Category II are
similar to the demographic characteristics of offenders who are currently eligible under 18
U.S.C. § 3553(f).
ii.

Recidivist provisions at 21 U.S.C. §§ 841 and 960

Congress should mitigate the cumulative impact of criminal history by reassessing both
the scope and severity of the recidivist provisions at 21 U.S.C. §§ 841 and 960. The mandatory
minimum penalties provided in those provisions are doubled (from five to ten years of
imprisonment, and from ten to 20 years of imprisonment) if the offender has a prior conviction
for a “felony drug offense.” An offender with two or more prior drug felonies is subject to a
mandatory minimum term of life imprisonment. This doubling of the mandatory minimum
penalties, and the mandatory minimum term of life imprisonment, are sometimes viewed as
disproportionate and excessively severe in individual cases and far exceed the more graduated,
proportional increases provided by the guidelines for such prior conduct.
In addition, Congress should more finely tailor their scope to reduce inconsistent
application of these provisions. This could be accomplished by amending the current definition
of “felony drug offenses” that triggers the heightened mandatory minimum penalties. Among
other possible changes, Congress might consider incorporating the particular state’s
classification of an offense as a “felony” or “misdemeanor” to better reflect the state’s judgment
concerning the seriousness of the prior offense, or by excluding simple possession offenses from
the definition of “prior drug offense.”
2.

Firearm Offenses

The firearm offenses to which mandatory minimum penalties most commonly apply are
serious crimes that can result in violence and bodily injury. The penalties established at 18
U.S.C. § 924(c) reflect Congress’s judgment that when a firearm is involved, crimes of violence
and drug trafficking offenses are more serious and deserving of lengthier sentences. Similarly,
the penalties established in the Armed Career Criminal Act, 18 U.S.C. § 924(e), reflect
Congress’s judgment that offenders with prior violent felony and drug trafficking offense
convictions who illegally possess firearms should receive greater punishment than other
882

See supra Chapter 3(B)(3) for a discussion of how criminal history is calculated under the guidelines.

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offenders. Consistent with these policy determinations, the Commission has established
guideline enhancements for conduct involving firearms and other dangerous weapons,883 as well
as enhancements based on a firearm offender’s history of convictions for crimes of violence and
controlled substance offenses.884
There are important differences, however, in how the statutes and the guidelines account
for similar conduct, particularly with respect to enhancements for firearm involvement. Section
924(c) establishes mandatory minimum penalties that range from five years to life imprisonment
for conduct involving a firearm in the commission of a broadly defined “crime of violence” or
“drug trafficking crime.” The length of the applicable mandatory minimum penalty depends on
how the weapon was used,885 the type of firearm,886 and whether the offender committed other
violations of section 924(c).887 The statute defines a “crime of violence” as any felony that “has
as an element the use, attempted use, or threatened use of physical force against the person or
property of another,” or “that by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing the offense.”888 A
“drug trafficking crime” is any felony that is punishable under the Controlled Substances Act,
codified at 21 U.S.C. § 801 et seq., or the Controlled Substances Import and Export Act, codified
at 21 U.S.C. § 951 et seq.889 The sentence imposed for violating section 924(c) must be served
consecutively to any other sentences imposed on the offender, including sentences for other
violations of section 924(c).890

883

See USSG §§2B3.1(b)(2), 2D1.1(b)(1).

884

See USSG §2K2.1(a)(2), (a)(4).

885

Section 924(c) establishes a five-year mandatory minimum penalty for an offender who “during and in relation
to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A)(i). The mandatory minimum penalty increases to seven years
of imprisonment if the firearm was “brandished” and to ten years of imprisonment if the firearm was “discharged.”
See id. § 924(c)(1)(A)(ii) – (iii).

886

The statute establishes a ten-year mandatory minimum penalty if the firearm was “a short-barreled rifle, shortbarreled shotgun, or semiautomatic assault weapon” and a 30-year mandatory minimum if the firearm was “a
machinegun or a destructive device, or [was] equipped with a firearm silencer or firearm muffler.” 18 U.S.C.
§ 924(c)(1)(B).

887

A 25-year mandatory minimum penalty applies to offenders convicted of a “second or subsequent” violation of
section 924(c), and mandatory life imprisonment applies to offenders convicted of a “second or subsequent”
violation of section 924(c) when the firearm involved was “a machinegun or a destructive device, or [was] equipped
with a firearm silencer or firearm muffler.” 18 U.S.C. § 924(c)(1)(C). The “second or subsequent” violation of
section 924(c) may be charged in the same indictment and may be part of a single series of events as the predicate
section 924(c) offense. See Deal v. United States, 508 U.S. 129 (1993).

888

18 U.S.C. § 924(c)(3).

889

18 U.S.C. § 924(c)(2).

890

18 U.S.C. § 924(c)(1)(D).

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In contrast, the guidelines enhance sentences based on firearms in a more graduated
manner, also depending on the circumstances of the underlying offense and the individual
offender. Most offenders convicted of an offense under section 924(c) are convicted of robbery
and drug trafficking offenses referenced under §§2B1.3 and 2D1.1, respectively. Sections 2B1.3
and 2D1.1 each contain enhancements for conduct involving a firearm.891 USSG §2B1.3
provides for enhancements ranging from 5 to 7 levels for possessing, brandishing, using, or
discharging a firearm,892 which approximately doubles the otherwise applicable guideline range.
USSG §2D1.1 provides for a 2-level enhancement “[i]f a dangerous weapon (including a
firearm) was possessed,”893 which increases the otherwise applicable guideline range by
approximately 25 percent. Because the guideline enhancements operate through offense levels
rather than prescribing particular lengths of imprisonment, the amount of the increase based on
weapon involvement changes in proportion to the seriousness of the offense and the
characteristics of the offender.
The guidelines further consider the involvement of a firearm in the context of the various
offense- and offender-specific factors that determine the sentencing range. For example, the
guidelines provide enhancements for certain aggravating circumstances in addition to firearm
involvement, such as death and bodily injury,894 the abduction or restraint of a person,895 risks to
minors,896 the offender’s aggravating role in the offense,897 and the offender’s criminal history.898
The guidelines also account for certain mitigating circumstances, such as the offender’s minor or
minimal role in the offense899 and acceptance of responsibility.900 By viewing weapon
involvement as one of many relevant factors and not requiring a specific sentence in addition to
the sentence for the underlying offense, the guidelines provide a proportionally higher sentence.

891

If an offender is convicted of an offense under section 924(c) and an underlying offense for which the applicable
guideline provision contains an enhancement for firearm involvement, the guideline enhancement does not apply.
See USSG §2K2.4 comment. (n.4) (“If a sentence under this guideline [for violations of section 924(c)] is imposed
in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristics for
possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the
underlying offense.”).

892

See USSG §2B3.1(b)(2).

893

USSG §2D1.1(b)(1).

894

See USSG §§2B3.1(b)(3), 2D1.1(a)(1)–(4).

895

See USSG §2B3.1(b)(4).

896

See USSG §2D1.1(b)(13).

897

See USSG §3B1.1.

898

See USSG Ch.4, Pt.A.

899

See USSG §3B1.2.

900

See USSG §3E1.1.

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With those general observations, the Commission offers the following specific findings
and recommendations with respect to mandatory minimum penalties for firearm offenses.
a.

“Stacking” mandatory minimum penalties under section 924(c)

Unlike other statutes and sentencing enhancements that apply based on an offender’s
prior convictions, section 924(c) requires the “stacking” of its mandatory minimum penalties
based on multiple offenses charged in the same indictment.901 Thus, an offender convicted of an
underlying offense and two counts of an offense under section 924(c) will receive consecutive
mandatory minimum penalties of at least 5 years and 25 years of imprisonment, in addition to
any term of imprisonment imposed for the underlying offense and other counts of conviction.
An offender charged with three counts of an offense under section 924(c) will face another
consecutive 25-year mandatory minimum penalty. Such a result may occur even if the offender
has no prior record.
The “stacking” of mandatory minimum penalties for multiple violations of section 924(c)
results in excessively severe and unjust sentences in some cases. The sentences for offenders
convicted of multiple counts of an offense under section 924(c) were the highest average
sentences for any offenders convicted of an offense carrying a mandatory minimum penalty in
fiscal year 2010. Offenders convicted of multiple counts of an offense under section 924(c)
received an average sentence of 351 months of imprisonment, which was more than twice the
length of the average sentence of 151 months of imprisonment received by offenders convicted
of only a single count of an offense under section 924(c).902 The underlying offenses committed
by these offenders were primarily robbery and drug trafficking offenses. There are some
circumstances where such a long sentence may be appropriate (e.g., in the eight cases in fiscal
year 2010 in which the offender’s primary guideline was §2A1.1, which covers first degree
murder), but there are other circumstances in which the offender received such a long sentence
even though the offense did not involve any physical harm or threat of physical harm to a person.
This severity mismatch can lead to sentences that are excessively severe and disproportionate to
the offense committed.903
901

See Deal v. United States, 508 U.S. 129 (1993).

902

See supra Chapter 9(C)(5). The Commission further notes that offenders convicted of multiple counts of an
offense under section 924(c) received below-range sentences at a higher rate than offenders convicted of an offense
carrying a mandatory minimum penalty in drug offenses or sex offenses. See Table 9-3 in Chapter 9. This high rate
of below-range sentences suggests that the courts viewed the guideline range sentence, as it incorporated the
mandatory minimum penalties, as too severe.

903

The case of Weldon Angelos illustrates the unduly severe sentences that stacking mandatory minimum penalties
under section 924(c) produces. The Judicial Conference of the United States has twice cited Angelos’s case in
opposition to stacking section 924(c) penalties in its testimony before Congress, and has similarly cited the case in
testimony before the Commission. Angelos was a 24-year-old first-time offender convicted of three counts of an
offense under section 924(c), among other offenses, in the District of Utah. His offense conduct was not
extraordinary among drug offenses; he was the target of “controlled buys” in which a governmental informant
purchased eight ounces of marijuana from Angelos on three occasions. On two of those occasions, Angelos was
known to have possessed a firearm. A subsequent search of Angelos’s residence revealed three pounds of marijuana
and three additional firearms. Angelos’s three convictions of an offense under section 924(c) were based on the two
transactions at which he possessed a firearm, and the additional firearms found at his residence. The district court
sentenced Angelos to the mandatory minimum penalty of 55 years of imprisonment for violating section 924(c) (five

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While only 147 cases sentenced in fiscal year 2010 involved multiple violations of
section 924(c), many stakeholders agree that Congress should address the excessively severe
sentences that stacking produces in some cases. The Commission conducted hearings on
mandatory minimum sentencing, at which witnesses from a variety of perspectives — including
judges,904 prosecutors905 and defense counsel906 — identified the stacking of penalties under
section 924(c) as potentially producing unjustly severe sentences. In district interviews with
Commission staff, many representatives of the FPD and CJA panels, and some prosecutors,
stated that the mandatory minimum penalties for committing multiple violations of section
924(c) are particularly harsh.907
The Judicial Conference of the United States has historically opposed mandatory
minimum penalties, but it has rarely articulated a policy position with respect to particular
mandatory minimum sentencing provisions. Evidencing the strength of its opposition to the
stacking of mandatory minimum penalties under section 924(c), the Judicial Conference has
urged Congress on at least two occasions to amend the “draconian” penalties established at

years for the first section 924(c) offense and consecutive terms of 25 years of imprisonment for the second and third
offenses), in addition to a one-day term of imprisonment imposed for the underlying and other offenses. Assuming
Angelos receives good-time reductions, he can expect to be eligible for release from prison when he is 78 years old.
The sentencing judge concluded that this sentence, though constitutional and required by the statute, was “unjust,
cruel, and even irrational,” and he further noted that had Angelos been sentenced under the guidelines, his guideline
range would have been 97 to 121 months, still a substantial sentence. See United States v. Angelos, 345 F. Supp. 2d
1227, 1230-31, 1241 (D. Utah 2004), aff’d, 433 F.3d 738 (10th Cir. 2006).
904

See Testimony of Chief Judge Robert J. Conrad, Jr., U.S. District Court for the Western District of North
Carolina, to the Commission, at 130 (Feb. 11, 2009) (“Mandatory minimums have the most potential for
disproportionate sentencing in the stacking of Title 18 U.S.C. Section 924(c) charges.”); see also Mandator