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MEMORANDUM FOR ALL FEDERAL PROSECUTORS
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FROM: THE ATTORNEY GENERAL/
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SUBJECT: ADDITIONAL DEPARTMENT POLICIES REGARDING
CHARGING, PLEAS, AND SENTENCING IN DRUG CASES
General Department policies regarding charging an offense, entering into a plea
agreement, and making sentencing recommendations are set forth in General Department
Policies Regarding Charging, Pleas, and Sentencing (2022) (hereinafter "General Policies
Memorandum"). This memorandum provides additional, specific policies regarding charging,
pleas, and sentencing in drug cases
--
consistent with the priority the Department has placed on
focusing its prosecutorial resources on combatting violent crime.
CHARGING DOCUMENTS AND PLEA AGREEMENTS
Mandatory Minimum Offenses
As stated in the General Policies Memorandum, "charges that subject a defendant to a
mandatory minimum sentence should ordinarily be reserved for instances in which the remaining
charges ... would not sufficiently reflect the seriousness
of
the defendant's criminal conduct,
danger to the community, harm to victims" and "such purposes
of
the criminal law as
punishment, protection
of
the public, specific and general deterrence, and rehabilitation."
General Policies Memorandum at 2, 3.
This policy applies with particular force in drug cases brought under Title
21
of
the
United States Code, where mandatory minimum sentences based on drug type and quantity have
resulted in disproportionately severe sentences for certain defendants and perceived and actual
racial disparities in the criminal justice system. See Governor Asa Hutchinson, Statement before
the Senate Judiciary Committee 2 (June 22, 2021); Attorney General Holder, Department Policy
on Charging Mandatory Minimum Sentences
and
Recidivist Enhancements
in
Certain Drug
Cases (2013); United States Sentencing Commission, Mandatory Minimum Penalties for Drug
Offenses
in
the Federal Criminal Justice System 8, 26, 57 (Oct. 2017). Accordingly, in cases in
which Title
21
mandatory minimum sentences are applicable based on drug type and quantity,
prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum
sentence
if
the defendant satisfies all
of
the following criteria:
Memorandum for All Federal Prosecutors
Subject: Additional Department Policies Regarding
Charging, Pleas, and Sentencing in Drug Cases
Page2
• The defendant's relevant conduct does not involve: the use
of
violence, the direction to
another to use violence, the credible threat
of
violence, the possession
of
a weapon, the
trafficking
of
drugs to or with minors, or the death or serious bodily injury
of
any person;
• The defendant does not have a significant managerial role in the trafficking
of
significant
quantities
of
drugs;
• The defendant does not have significant ties to a large-scale criminal organization or
cartel, or to a violent gang; and
• The defendant does not have a significant history
of
criminal activity that involved the
use or threat
of
violence, personal involvement on multiple occasions in the distribution
of
significant quantities
of
illegal drugs, or possession
of
illegal firearms.
In making the above assessment, prosecutors should consider whether the above criteria
are satisfied without regard to whether the defendant would be eligible for a sentence below a
mandatory minimum term based on application
of
the safety valve,
18
U.S.C. § 3553(f), or on
substantial assistance under
18
U.S.
C.
§ 3 5 5 3( e
).
In cases in which prosecutors determine that some but not all
of
the criteria are satisfied,
prosecutors should not automatically charge the quantity necessary to trigger the mandatory
minimum, but rather weigh the considerations set forth in this memorandum and the General
Policies Memorandum to carefully determine, through the exercise
of
their discretion and in
consultation with their supervisors, whether a Title
21
charge with a mandatory minimum
sentence is appropriate.
1
As set forth in the General Policies Memorandum, any decision to include a mandatory
minimum charge in a charging document or plea agreement must be approved by a supervisory
attorney as designated by the United States Attorney or Assistant Attorney General for the
relevant litigating division.
If
information sufficient to determine that all
of
the criteria above are satisfied is
available at the time initial charges are filed, prosecutors should decline to pursue Title
21
charges triggering a mandatory minimum sentence.
If
this information is not yet available,
prosecutors may file charges involving these mandatory minimum statutes pending further
information.
If
information that the criteria are satisfied is subsequently obtained, prosecutors
should pursue a disposition that does not require a Title
21
mandatory minimum sentence. For
example, a prosecutor could ask the grand jury to supersede the indictment with charges that do
not carry mandatory minimum sentences; a defendant could plead guilty to a lesser included
offense that does not carry the mandatory minimum; or a defendant could waive indictment and
plead guilty to an information that does not charge the quantity necessary to.trigger the
mandatory minimum.
1
For example, in a case involving a defendant who serves only as a "drug mule," but who
arguably does not satisfy all
of
the criteria discussed above, the balance
of
considerations may
still weigh against the filing
of
a Title
21
charge carrying a mandatory minimum sentence.
Memorandum for All Federal Prosecutors
Subject: Additional Department Policies Regarding
Charging, Pleas, and Sentencing in Drug Cases
Page 3
Recidivist Enhancements
In deciding whether to file an information under
21
U.S.C. §
851
requiring imposition
of
enhanced statutory penalties, prosecutors in drug cases should be guided by the same criteria
discussed above for charging mandatory minimum offenses, as well as whether the filing would
create a significant and unwarranted sentencing disparity with equally or more culpable co-
defendants. Prosecutors are encouraged to make the Section
851
determination, and to file any
such a notice, at the time the case is charged or as soon as possible thereafter.
As with any filing, a Section
851
enhancement should not be filed simply to exert
leverage to induce a plea or because the defendant elected to exercise the right to trial. General
Policies Memorandum at 3.
SENTENCING RECOMMENDATIONS
The General Policies Memorandum advises that, although in many cases the appropriate
balance among the
18
U.S.C. § 3553(a) factors will lead to a recommendation for a sentence
within the advisory range resulting from the application
of
the Sentencing Guidelines, there are
cases in which such a sentence may not be "proportional to the seriousness
of
the defendant's
conduct" or "achieve the purposes
of
criminal sentencing as articulated in
18
U.S.C. § 3553(a)."
General Policies Memorandum at
5.
In such cases, prosecutors may conclude that a request for a
departure or variance above or below the guidelines range is warranted.
Id.
In the context
of
drug cases, requests for departures or variances may be particularly
justified in the following circumstances:
• Certain cases in which the guidelines range does not adequately reflect the
defendant's crime and culpability:
At times, a low-level seller in a large-scale drug
organization may be held responsible under the relevant conduct provisions
of
the
Sentencing Guidelines for a large quantity
of
drugs that produces an advisory range near
the top
of
the sentencing table. In such cases, prosecutors should consider supporting a
downward departure or variance, particularly where all or most
of
the criteria listed on
the first two pages
of
this memorandum are satisfied. Conversely, where the criteria are
satisfied and yet the penalty yielded by the advisory guidelines range is not proportional
to the seriousness
of
the defendant's conduct, prosecutors may consider seeking an
upward departure or variance.
• Certain cases in which the career offender guidelines range does not adequately
reflect the defendant's crime and culpability:
Similar consideration should be given in
a case in which the defendant is subject to sentencing under the career offender guideline,
see
U.S.
S.
G.
§ 4 B 1.1, which is designed to trigger guideline ranges at or near statutory
maximum sentences. In a case in which all or most
of
the listed criteria are present, and
the defendant's status as a career offender is predicated only on the current and previous
commission
of
nonviolent controlled substance offenses, prosecutors should consider
Memorandum for All Federal Prosecutors
Subject: Additional Department Policies Regarding
Charging, Pleas, and Sentencing in Drug Cases
Page4
supporting a downward variance to the guidelines range that would apply in the absence
of
career offender status.
2
(For purposes
of
this memorandum, nonviolent offenses are
those that do not involve the actual or threatened use
of
a weapon or other means
of
violence.) Conversely,
if
the defendant's prior convictions involved the actual or
threatened use
of
violence, but the crimes do not qualify as career offender predicates
under the "categorical approach,"
if
appropriate prosecutors may consider advocating for
an upward variance, including toward the career offender range.
Whatever the ultimate sentencing recommendation, prosecutors must always be candid
with the court, the probation office, and the public as to the full extent
of
the defendant's conduct
and culpability, including the type and quantity
of
drugs involved in the offense and the quantity
attributable to the defendant's role in the offense, even
if
the charging document lacks such
specificity.
CHARGING, PLEAS, AND SENTENCING IN CRACK COCAINE CASES
The Justice Department supports elimination
of
the crack-to-powder sentencing disparity
and has testified before Congress in support
of
the EQUAL Act,
S.
79, which would remove that
disparity. As the Department has explained: "First, the crack/powder disparity is simply not
supported by science, as there are no significant pharmacological differences between the drugs:
they are two forms
of
the same drug, with powder readily convertible into crack cocaine.
Second, as documented by the Sentencing Commission, the crack/powder sentencing differential
is still responsible for unwarranted racial disparities in sentencing. Third, the higher penalties for
crack cocaine offenses are not necessary to achieve (and actually undermine) our law
enforcement priorities, as there are other tools more appropriately tailored to that end." Justice
Department Statement, Senate Judiciary Committee 6 (June 22, 2021).
3
Accordingly, prosecutors in crack cocaine cases should take the following steps to
promote the equivalent treatment
of
crack and powder cocaine offenses.
2
The Sentencing Commission has documented the increasing frequency
of
sentencing variances
below a career offender range, particularly for those whose career offender status rested on drug
offenses rather than violent crimes. The Commission reported that, by fiscal year 2014, judges
imposed a sentence below the career offender range in roughly 75%
of
drug-based career
offender cases, frequently choosing a sentence close to the non-career offender drug guideline.
United States Sentencing Commission, Report to the Congress: Career Offender Enhancements
35 (2016).
3
See Testimony
of
Acting ONDCP Director, Senate Judiciary Committee, June 22, 2021; U.S.
Sentencing Commission Report 1995 (recommending sentencing guidelines amendment that
would have equalized the guidelines penalties for powder and crack cocaine offenses based
solely on drug quantities).
Memorandum for All Federal Prosecutors
Subject: Additional Department Policies Regarding
Charging, Pleas, and Sentencing in Drug Cases
Page 5
If
charging a mandatory minimum term
of
imprisonment under Title
21
for a drug
offense involving crack cocaine is deemed warranted under this memorandum, prosecutors
should charge the pertinent statutory quantities that apply to powder cocaine offenses. The
Criminal Division and the Executive Office for United States Attorneys will issue further
guidance
on
how
to structure such charges.
At sentencing, prosecutors should advocate for a sentence consistent with the guidelines
for powder cocaine rather than crack cocaine. Where a court concludes that the crack cocaine
guidelines apply, prosecutors should generally support a variance to the guidelines range that
would apply to the comparable quantity
of
powder cocaine.
As noted above, prosecutors must always be candid with the court, the probation office,
and the public as
to
the full extent
of
the defendant's conduct and culpability, including the type
and quantity
of
drugs involved in the offense,
even
if
the charging document lacks such
specificity.
4
4
The policies contained
in
this memorandum, and internal office procedures adopted pursuant
thereto, are intended solely for the guidance
of
attorneys for the government. They are not
intended to create a substantive
or
procedural right or benefit, enforceable
at
law, and may not be
relied upon
by
a party to litigation with the United States. Justice
Manual§
9-27.150 (updated
Feb. 2018);
see United States
v.
Caceres, 440 U.S. 741 (1979).
