On August 12, 2013, Attorney General Eric Holder issued a Memorandum to United States Attorneys and Assistant Attorney General for the Criminal Division, in response to the United States Supreme Court case of Alleyene v United States, 133 S Ct 2151 (2013).  This case held that in order for a defendant to be subject to a mandatory minimum sentence, the charging document must include the elements of the crime that trigger such a sentence.  The obligation to make sure this is done properly is the federal prosecutors.  In this Memorandum, Attorney General Holder is announcing a change in Federal policy regarding mandatory minimum drug sentences for some federal offenders.

Consequences for Drug Possession Offense Charges

Prosecutors have discretion over charging decisions.  Current policy requires prosecutors to conduct an individualized assessment of the extent to which the charges fit the specific circumstances of the case, are consistent with Federal law, and maximize the impact of Federal resources.  Prosecutors must also take in to account numerous factors, such as defendant’s conduct and criminal history, the circumstances of the crime, the needs of the community and federal resources and priorities.

Sentencing changes have been made in response to the reality that long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.  Also rising prison costs have resulted in the reduction of spending on criminal justice initiatives, including spending on law enforcement agents, prosecutors, and prevention and intervention programs.  There is a finite amount of money and it needs to be spent more productively – and jailing low-level, non-violent offenders for a substantial periods of time is not accomplishing that.

The New Charging and Sentencing Policy

Prosecutors must continue to charge the more serious offense that is consistent with the nature of the defendant’s conduct, and that is likely to result in a sustainable conviction.  However, in cases where mandatory minimum sentencing applies based on drug type or quantity, prosecutors should decline to charge the quantity necessary to trigger mandatory minimum sentences if a defendant meets each of the following:

  • The Defendant’s relevant conduct does not involve the use of 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 is not an organizer, leader, manager or supervisor of others within a criminal organization.
  • The Defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and
  • The Defendant does not have a significant criminal history.

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Timing and Plea Agreements

If information sufficient to determine that a Defendant meets the new charging criteria is available at the time the initial charges are filed a prosecutor should decline to pursue charges triggering a mandatory minimum sentence.  If there is insufficient information at the time the initial charges are filed, than prosecutors should file involving mandatory minimum sentencing.  If it is later determined that the defendant meets the criteria, prosecutors should dismiss the original charges and re-file charges that do not trigger mandatory minimum sentencing.

Prosecutor’s Advocacy at Sentencing

Attorney General Holder stated in his Memorandum that the United States Attorneys and the Assistant Attorneys General must candid with the court, probation and the public as to the full extent of the defendant’s culpability, including the quantity of drugs involved in the offense and the amount that was attributable to the defendant.  Prosecutors should also continue to accurately calculate the United States Sentencing Guidelines.

Enhancements for Repeat Offenders

The memorandum addresses repeat offenders and states that prosecutors should not file charges triggering a mandatory minimum sentence unless the defendant is involved in conduct that makes the case appropriate for severe sanctions.  Prosecutors are instructed to look at, among other things, whether the defendant was a leader within a criminal organization, was there a threat or use of violence in connection with the offense, defendant’s prior criminal history and if it includes violent crimes.

Michigan Criminal Defense Attorneys

Michigan Criminal Defense Attorney

Navigating the criminal justice system is daunting, and even more so if done without the assistant of a federal criminal defense lawyer.  There are many criminal defense attorneys in Michigan, but few that have experience with the criminal law in the Federal court system.  The differences between State court and Federal court are significant enough that you should have a criminal defense attorney that is familiar with Federal court represent you.  The attorneys at LEWIS & DICKSTEIN, P.L.L.C. have experience with in the Federal Court system representing individuals charged with federal and misdemeanor crimes, as well as individuals charged in cases involving multiple defendants.  If you have any questions or wish to speak to one of our highly experienced attorneys please contact us at (248) 263-6800 or complete a Request for Assistance Form and someone will contact you promptly.

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