October 09, 2013 Articles

What the Holder Memo on Mandatory Minimum Drug Sentences Means

It is essential that federal criminal defense attorneys assess and assemble as much information as possible on the defendant's criminal history.

By Darren M. Gelber

Amid significant public fanfare, Attorney General (AG) Eric Holder issued a memo dated August 12, 2013, to all federal prosecutors. It relied on the holding in Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that factors that serve to trigger a mandatory minimum sentence are elements of the offense that must be found by a jury beyond a reasonable doubt, or admitted by the defendant during the course of a guilty plea. As a corollary to that holding, the AG instructed prosecutors that charging documents, i.e., the indictment or information, must allege those necessary elements that trigger the application of a mandatory minimum.

Seizing on this principle, the Holder memo announced that prosecutors must consider a variety of factors before pursuing a mandatory minimum in a charging document. The essence of the Holder memo reminds federal prosecutors that they hold the key to unlock the door leading to a statutory mandatory minimum sentence. If the charging document does not contain the essential elements to establish the applicability of a mandatory minimum, and the defendant does not admit necessary facts to establish the existence of the mandatory minimum during the course of a guilty plea, then, the Holder memo posits, there is no mandatory minimum about which to worry.

As an overall federal policy, the Holder memo reminds federal prosecutors that they “must assure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers.” By contrast, the Holder memo reasons, “long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.” These considerations, as well as rising prisons costs and other public-safety spending, require federal prosecutors to reevaluate which offenders should be subject to mandatory minimum penalties for drug offenses.

Not Pursuing a Conviction That Requires a Mandatory Minimum Sentence
In keeping with these policy principles, the Holder memo instructs federal prosecutors to decline to charge a defendant with an offense that requires a mandatory minimum sentence based on drug type and quantity if the defendant meets all of the following factors:

  1. The defendant’s conduct did not involve the use of violence or credible threat of violence or possession of a weapon, did not involve minors, and did not involve the death or serious bodily injury of any person.
  2. The defendant was not an organizer, leader, manager, or supervisor of others within a criminal organization.
  3. The defendant does/did not have significant (emphasis added) ties to large-scale drug trafficking organizations, gangs or cartels.
  4. The defendant does not have a significant criminal history, defined as normally involving three or more criminal history points, but may involve fewer or greater depending on the nature of the prior convictions.

If a defendant meets each of those criteria, prosecutors should not pursue a conviction that requires a mandatory minimum sentence. This determination can be made at the time a case is filed, or it can be made at a subsequent time if information develops that tends to indicate that a case and a defendant meet each of the four defined criteria.

Indeed, in what may be a point that has not attracted much attention as of yet, the Holder memo actually invites federal prosecutors to go one step further in favor of defendants in cases that meet each of the four defined criteria. In a footnote, the attorney general advised

as with every case, prosecutors should determine, as a threshold matter, whether a case serves a substantial federal interest. In some cases, satisfaction of the above criteria meant for low-level, nonviolent drug offenders may indicate that prosecution would not serve a substantial federal interest in that the case should not be brought federally.

The implication is inescapable—the Holder memo invites analysis about whether certain drug cases that might trigger a mandatory minimum sentence should be prosecuted at all by federal authorities. The thought of federal authorities declining to pursue an otherwise jurisdictionally sound federal prosecution based on the factors outlined in the Holder memo appears to be a significant change in policy.

In addition to investing in federal prosecutors a new sense of discretion about whether to charge or seek a conviction for a drug offense that requires a mandatory minimum, the Holder memo also allows prosecutors to decline to file a recidivist-enhancement information pursuant to 21 U.S.C. § 851 (2013) based on an assessment of factors quite similar to the ones identified above.

What Does the Memo Mean for My Federal Criminal Defense Practice?
In keeping with the principles and factors outlined in the Holder memo, federal criminal practitioners have a new tool and, therefore, an increased ability to advocate on behalf of their clients. It is essential that defenders assess and assemble as much information as possible that bears upon the four categories of information outlined in the Holder memo. Client interviews, interviews of witnesses, and even casual communications with Assistant United States Attorneys and case agents will help the defense attorney assemble information tending to show that the defendant did not use or threaten violence or possess a weapon, or traffic drugs to or with minors, or cause death or serious bodily injury to anyone. These same sources of information may enable a defense attorney to provide information to the prosecutor that the defendant is not an organizer, leader, manager, or supervisor of others, and does not have significant ties to organized gangs or cartels.

In many cases, a defense attorney may best be able to advocate the applicability of the Holder memo by assembling as much information as possible about the client’s criminal history. Many of our federal clients, especially those involved in drug trafficking, may have easily assembled three criminal-history points during their prior contacts with the criminal-justice system. It is essential that counsel assemble all available documentation about those prior convictions by obtaining case files from prior counsel, court documents, and even sentencing and plea-hearing transcripts. If a defendant has three or more criminal-history points, he or she can still be the subject of a waiver of a mandatory minimum pursuant to the Holder memo “depending on the nature of any prior convictions.” Therefore, counsel must assess the nature of the prior convictions and point out all applicable facts that tend to indicate that the prior convictions are indicative of a low-level offender. If the prior convictions satisfy the other criteria of the Holder memo—meaning that they do not seem to indicate the use or threat of violence or the presence of weapons, and that the defendant was not an organizer or leader or tied to a drug trafficking organization in the prior cases—those factors should be pointed out as well.

While in the past, counsel’s role in assembling and presenting the information described above has typically been at the time of sentencing, or during the course of plea negotiations following review of discovery or motion practice, it is important that counsel advance the timing of his or her efforts to assemble these types of information. Early presentation of information to the assigned Assistant United States Attorney may, in certain cases, allow your client to escape the applicability of a harsh mandatory minimum drug sentence.

Keywords: criminal litigation, mandatory minimum sentencing, Department of Justice, federal drug offenses

Darren M. Gelber is a shareholder with Wilentz, Goldman & Spitzer P.A. in New Jersey.

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