Most federal sentences start from the Sentencing Guidelines range, which is one of the factors the court must consider under 18 U.S.C. § 3553(a). A mandatory minimum works differently: it is a term of imprisonment Congress wrote into the statute of conviction, and it sets a floor the court cannot go beneath on its own. Whether a minimum applies often depends on choices made long before sentencing, such as the drug quantity alleged in the indictment, whether a firearm count is added and whether the government files notice of a prior conviction. Spodek Law Group P.C. owes loyalty to only you, and the fight over a mandatory minimum starts the day we are hired.
Drug quantity sets the floor.
Under 21 U.S.C. § 841(b)(1), the minimum depends on the drug and the weight involved. A case involving 1 kilogram or more of a mixture containing heroin, 5 kilograms or more of a cocaine mixture, 280 grams or more of a mixture containing cocaine base, 400 grams or more of a fentanyl mixture, or 500 grams or more of a methamphetamine mixture (50 grams of methamphetamine itself) carries a 10-year minimum and a maximum of life. The lower tier, triggered by amounts such as 100 grams of a heroin mixture, 500 grams of a cocaine mixture, 28 grams of a cocaine base mixture, 40 grams of a fentanyl mixture or 50 grams of a methamphetamine mixture (5 grams actual), carries a five-year minimum and a 40-year maximum.
If death or serious bodily injury results from the use of the drug, the minimum at either tier becomes 20 years. Attempt and conspiracy under 21 U.S.C. § 846 carry the same penalties as the offense that was their object, which is why the quantity attributed to a conspiracy matters so much.
Prior convictions and the § 851 notice.
A prior conviction for a serious drug felony or a serious violent felony that has become final raises the drug minimums: under § 841(b)(1)(A) from 10 years to 15, and to 25 years after two or more such priors, and under § 841(b)(1)(B) from five years to 10.
The increase is not automatic. Under 21 U.S.C. § 851, no one may be sentenced to increased punishment by reason of a prior conviction unless, before trial or before entry of a guilty plea, the U.S. Attorney files and serves an information stating the prior convictions relied on. Whether that information is filed is one of the most consequential decisions a prosecutor makes in a drug case.
Firearms, identity theft and child exploitation.
Mandatory minimums reach well beyond drug cases. Using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime, or possessing one in furtherance of such a crime, adds at least five years under 18 U.S.C. § 924(c), seven if the firearm is brandished and 10 if it is discharged, and a § 924(c) violation that occurs after a prior § 924(c) conviction has become final carries at least 25 years. None of that time may run concurrently with any other sentence.
A person who violates § 922(g) after three prior convictions for a violent felony or serious drug offense committed on different occasions faces at least 15 years under 18 U.S.C. § 924(e). Aggravated identity theft adds a consecutive two-year term (18 U.S.C. § 1028A). Transporting, receiving or distributing child pornography carries a five-year minimum (18 U.S.C. § 2252(b)(1)), and production carries 15 years (18 U.S.C. § 2251(e)).
The facts that trigger a minimum must be proven.
Because a mandatory minimum increases the penalty for a crime, the Supreme Court held in Alleyne v. United States (2013) that any fact that increases the mandatory minimum is an element that must be submitted to the jury and found beyond a reasonable doubt. In a drug case, that usually means the quantity threshold has to be charged and then either proven at trial or admitted in a plea, which gives the defense real room to contest weight, purity and which transactions belong in the charged conspiracy.
The safety valve.
For drug offenses under 21 U.S.C. §§ 841, 844 and 846, §§ 960 and 963, and certain maritime drug offenses, 18 U.S.C. § 3553(f) requires the court to impose a guidelines sentence without regard to the statutory minimum if it finds five things: the defendant does not have more than four criminal history points (excluding one-point offenses), a prior three-point offense and a prior two-point violent offense; the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense; the offense did not result in death or serious bodily injury; the defendant was not an organizer, leader, manager or supervisor and was not engaged in a continuing criminal enterprise; and by the time of sentencing the defendant has truthfully provided the government all information and evidence about the offense.
In Pulsifer v. United States (2024), the Supreme Court read the first condition to mean that a defendant is eligible only if none of the three criminal history disqualifiers applies.
Cooperation and Rule 35(b).
Outside the safety valve, the main route below a statutory minimum runs through the prosecutor. Under 18 U.S.C. § 3553(e), the court may go below a statutory minimum to reflect substantial assistance only on the government's motion, and the Supreme Court held in Melendez v. United States (1996) that a motion under guideline § 5K1.1 does not by itself authorize a sentence below the statutory minimum. After sentencing, Rule 35(b) of the Federal Rules of Criminal Procedure allows the court to reduce a sentence below the statutory minimum, again only on the government's motion.
Whether cooperation is worth it when a minimum is in play is one of the hardest questions in federal defense, and it is a question we work through with you before any meeting with the government is scheduled.