A lot of people who are charged with serious drug-related offenses are facing 5, 10, 15, and even sometimes, 20-year mandatory minimums, which means that if they plead guilty or if they are convicted in a jury trial, the judge must sentence them to at least the required minimum.
It can often become more than the mandatory minimum, especially in federal drug cases. So, you start to figure out what we can do to get around that mandatory minimum.
Of course, one way to get around the mandatory minimum in a federal criminal case is to go to a jury trial and be found not guilty. Then, not only do you get around the required minimum, but you also get around any conviction or punishment at all.
Another way to get around the mandatory minimum is if your attorney can convince the prosecutor to change the charge from one that requires a mandatory minimum to a different charge. That's not always easy to do.
Once someone is indicted, it seems very unlikely that the prosecutors will change the charge. In my experience, that takes place pre-indictment before they indict somebody.
If the person does something that makes them want to change a charge, they will often make them plead to something different than a sentence with a mandatory minimum. Our California criminal defense lawyers will examine this topic in further detail below.
What is a Federal Safety Valve?
Now let's get into the most common way to get around a federal criminal mandatory minimum sentence, which is called the safety valve. The safety valve is a concept that allows somebody who meets five criteria to avoid any mandatory minimum sentence.
One of the criteria is that you have to sit down with the government and give them all of the information related to your responsibility as it relates to the crime that you're charged with:
- you have to have low criminal history points;
- you can't be a leader/organizer;
- you can't have used a weapon;
- you can't have used any violence.
So, you get a feel for exactly what you'll need to get that safety valve. If you get the safety valve, you can go below the mandatory minimum, and there's also a chance that you can get two levels knocked off your sentence.
What is a 5K Departure?
The final way to get around a mandatory minimum sentence in a federal criminal case is called a 5K departure, which means cooperating with the government.
You give them information about other people, and they can capture and charge other people, get drugs, get guns, whatever the case may be, and if, in their sole discretion, they decide that you sufficiently cooperated.
In other words, if you gave them what is called substantial assistance, then they can give you what's called a 5K departure, and that puts you in a position to be able to not only get around the mandatory minimum, but the government can also take levels off your sentence so that the sentencing guidelines are not as harsh as it relates to you.
What is a Federal Drug Conspiracy?
Federal criminal prosecutions involving drug distribution often include allegations under 21 U.S.C. § 846, a common statute for all drug-related criminal conspiracies.
The concept of a conspiracy charge is an underlying agreement between two or more people to commit a crime. In other words, a conspiracy has three primary elements:
- an agreement to commit a crime
- intent, and
- an act to execute the agreement.
In any federal conspiracy case, there must be an agreement between people to commit a crime. Suppose the intended crime is to sell narcotics prohibited under federal law? In that case, federal prosecutors can file charges against the conspiracy members, called “co-conspirators,” with a violation of 21 U.S.C. § 846.
In addition to an agreement and intent to commit a crime, the conspirator must take an overt act to further the conspiracy. In federal court, the indictment will list the specific overt acts that every scheme member is alleged to have undertaken.
These crucial “steps” could be a direct action, such as showing up at the drug deal or selling the narcotics. It could also include an indirect effort, such as providing another member of the conspiracy with the necessary information or assistance to further the success of the drug conspiracy.
What Are the Penalties for a Federal Drug Conspiracy?
A primary factor in federal drug conspiracy charges is the impact of the federal sentencing law. For example, there are mandatory minimums and high offense levels in the sentencing guidelines for a drug offense, especially when there are large quantities of narcotics.
This means any defendant found guilty in a federal drug conspiracy case can be exposed to a significant number of years in a Federal Bureau of Prisons facility.
Also, due to the nature of the offense, most defendants charged with these types of drug crimes will be facing an exhaustive criminal investigation from federal law enforcement agencies that will often include video and audio recordings of the alleged drug sales activity.
This is another reason you need a defense lawyer who is a skilled negotiator who can work out a favorable settlement agreement with the prosecutor.
Get Help from a Federal Criminal Attorney
So, I've given you the ways to get around the mandatory minimum in a federal criminal case. Of course, you will need a great federal defense attorney to champion your position.
The key to obtaining the best possible outcome on your case could rest on your decision to retain a federal criminal lawyer early in the case process who could negotiate with the government.
I've been doing this for 30 years. I started working for the prosecutors in the early 1990s and then as a judge, and then in 1994, I started doing federal cases.
The United States Supreme Court has admitted me, and I've handled federal cases nationwide.
So, if you're looking for the best, pick up the phone now. Ask for a meeting with Ron Hedding. The Hedding Law Firm offers a free case evaluation.