Drug Offense Sentencing

For over 25 years Congress and the state legislatures have answered the call to step up the war against drugs by imposing mandatory minimum sentences for drug offenses. A mandatory minimum sentence applies if it is expressly stated in the language of the statute. Normally the weight and quantity of controlled substance will trigger the mandatory minimum. Generally if the quantity is in excess of what might be considered commercial recreational use, the mandatory minimum sentence may apply. The laws are intended to punish individuals who are in the business of trafficking and supplying quantities other who are using or abusing. Under federal law a person faces a minimum mandatory sentence for the possession of 100 kilograms or more of marijuana, possession of 500 grams or more of cocaine, or for possession of 28 grams of crack cocaine (cocaine base.) The mandatory minimum sentence jumps to 10 years for 1 kilogram of cocaine, 1,000 kilograms of marijuana, or 280 grams of crack cocaine. Simple possessing the substance without any proof it was intended to go to anyone in particular is sufficient. The possession of these large quantities implies there is intent to distribute. The sentence can be much higher depending on the quantity but can not be less than this amount. Miami attorney Ken Swartz has the experience and knowledge to help you if you are facing a drug-related charge and facing incarceration in federal or Florida state court.

Like every law, there are exceptions. Under federal law, there are condition that can a person can avoid being sentenced to the mandatory minimum. If a person who pleads guilty has no prior felony convictions and the facts do not include the possession of a firearm, the sentencing court is authorized to disregard the mandatory minimum. Of course, a person who goes to trial and is convicted of distributing the threshold amount of controlled substance will not have the benefit of a sentence below the mandatory minimum even if he has no prior felony conviction.

There is no exception for a mandatory minimum sentence for a person with a prior felony conviction. A person with a prior felony drug conviction faces an enhanced mandatory minimum sentence. With one prior drug conviction, the mandatory sentence will double from 5 to 10 years or from 10 to 20 years depending on the quantity. A person with two or more felony drug convictions faces a mandatory life sentence.

For this enhancement to apply, the government must file a notice of intent to use the prior drug conviction to enhance. See 21 U.S.C. § 851. If the notice is not timely filed, the enhancement cannot be imposed. It is common for prosecutors to withhold filing the notice and use this as a bargaining chip to render a plea. Who wouldn’t find the chance of getting double time as an incentive to plead guilty?

A prosecutor can avoid the sentence enhancements by not filing the notice of prior drug felony convictions, but the prosecutor cannot get around the minimum mandatory sentence if the defendant has a prior felony conviction, drugs or otherwise. There is one exception however. If a person charged gives the government cooperation that leads to substantial assistance, the prosecutor can make a motion at sentencing tat will authorize the sentencing judge to sentence below the mandatory minimum sentence.

If you or someone you know is facing a drug-related charge and facing incarceration in federal or state court, call Swartz Law Firm to schedule a consultation with an experienced, board certified criminal trial attorney.