Sentencing For Federal Drug Crimes In New York
NYC Federal Drug Crimes Lawyers
There are five schedules of drugs subject to control under the federal law. The schedules are designated I, II, III, IV and V, respectively. The law provides different penalties and regulatory provisions, depending in part upon the schedule in which a drug is listed. The tightest controls and most severe penalties are imposed for offenses involving drugs listed in Schedules I or II. The Act contains an initial listing of drugs for each schedule.
Schedule I Includes Heroin, Marijuana, LSD, Mescaline, and Peyote
The statutory criteria for the inclusion of drugs in Schedule I are:
- a high potential for abuse; and
- absence of any currently accepted medical use; and
- lack of safety even under medical supervision.
Of the drugs listed in Schedule I, heroin, marijuana, LSD, mescaline, peyote and psilocybin are the most commonly used in federal drug prosecutions.
Schedule II Includes Opium, Cocaine, Methadone, and Amphetamine
The statutory criterian4 for the inclusion of drugs in Schedule II are:
- a high potential for abuse;
- a currently accepted medical use in the United States; or
- a currently accepted medical use with severe restrictions; and
- a potential for severe psychological or physical dependence.
The initial listing of Schedule II drugs included opium, cocaine, and methadone, as well as many other substances. Methamphetamine and amphetamine were added to Schedule II by federal regulation.
Schedule III Includes Nalorphine
The statutory criterian6 for including drugs in Schedule III are:
- a potential for abuse less than that of drugs in Schedule I and Schedule II; and
- a currently accepted medical use in the United States; and
- a potential to create moderate or low physical dependence or high psychological dependence.
Anabolic steroids and lysergic acid are among the controlled substances within this Schedule.
Schedule IV Includes Meprobamate, Barbital, Chloral Hydrate, and Paraldehyde
The statutory criterian7 for including drugs in Schedule IV are:
- a low potential for abuse relative to the drugs in Schedule III; and
- a currently accepted use in medical treatment in the United States; and
- a potential to create limited physical or psychological dependence relative to the drugs in Schedule III.
Among the drugs listed in Schedule IV, the most familiar are: meprobamate, a well-known tranquilizer; barbital, a member of the barbiturate class; chloral hydrate, known as knock out drops when mixed with alcohol; and paraldehyde. For the most part, drugs included in Schedule IV are either hypnotics (drugs which induce sleep) or sedatives (drugs which relieve anxiety).
Schedule V Includes Codeine Combined with Small Amounts of Other Ingredients
The criteria for the inclusion of drugs in Schedule V are:
- a low potential for abuse relative to the drugs in Schedule IV; and
- a currently accepted medical use in treatment in the United States; and
- a potential for limited physical dependence or psychological dependence relative to the drugs in Schedule IV.
The drugs listed in Schedule V are compounds containing small quantities of certain narcotic drugs such as codeine combined with non-narcotic medicinal ingredients. To be included in Schedule V, the preparation must include at least one non-narcotic active medicinal ingredient in such proportion as to confer upon the preparation valuable medicinal qualities other than those possessed by the narcotic drug alone.
Federal Sentencing Guidelines
Federal criminal justice system is completely different from the state criminal justice system. That is especially true when it comes to sentencing issues. Some of the most commonly prosecuted crimes in federal courts are drug crimes.
One of the most important factors controlling sentencing under Drug Abuse and Control Act are Federal Sentencing Guidelines.
The criminal provisions of the comprehensive Drug Abuse and Control Act did not just change existing law. Serious changes occurred by the adoption of newly defined federal drug crimes and totally new sentencing provisions.
Most of the revised sentencing provisions of the comprehensive Drug Abuse and Control Act provided broad ranges within which sentences could be imposed, including, for many offenses, specified mandatory minimum sentences. Beyond the specified mandatory minimums, federal sentencing is driven and controlled almost entirely by the Federal Sentencing Guidelines.
The Sentencing Guidelines became discretionary, although a significant factor in the federal sentencing process, the United State Supreme Court ruled that they are no longer mandatory in United States v. Booker.
The Booker case made the Guidelines advisory but they still have a huge impact on the sentencing process. Judges are obligated to calculate the proper Guidelines recommended sentence and use that as one of numerous sentencing considerations. Therefore, important factors that can lower the Guidelines calculation in effect provides a lower starting point for the ultimate sentencing determination.
The cooperation with the government is absolutely critical when it comes to determining the sentence. Before Booker, in order for the judge to even consider depart from the Guidelines based on the defendant’s cooperation, the Government needed to file a Motion asking the judge to do so. After Booker, it’s no loner necessary. The Government may file such a Motion or the defense may simply ask the judge to consider cooperation as grounds for a lower sentence. In some cases, cooperation may even permit a judge to sentence the defendant below a mandatory minimum.
The issue of cooperation is one of the most important issues in a federal criminal case. While some defendants may not be willing to cooperate and have no interest in pleading guilty, for others it is the only optimal option. Cooperation is not for everyone. A person who is not guilty should not be pleading guilty and cooperating with the government. Still, cooperation must be seriously discussed with your defense attorney as early as possible in the case. In most federal drug cases, by the time the arrest is made, the federal prosecutors have accumulated high volumes of evidence, including undercover purchases, video surveillance, phone taps, and other types of evidence. Therefore, the question of cooperation should be brought up and seriously discussed.
The truth is that the federal drug cases usually have multiple defendants and those who cooperate first get the greatest sentencing reduction. How exactly this works depends on which district hears the case and the particular judges. However, considering the draconian sentencing practices under the mandatory sentencing and guideline sentencing provisions, it is very important for the defendant to consider cooperation.
Quantity of Controlled Substance
Although the Guidelines for drugs largely emphasize the quantity of the controlled substance, an individual defendant may be liable for a smaller quantity than that proved for the entire conspiracy. This is known as the principle of ”foreseeability”. This means that the court must determine what amount of drugs was reasonably foreseeable by the particular defendant, based upon his involvement in the particular conspiracy.
A defendant may have points deducted from his Guidelines calculation based upon pleading guilty early in the stages of prosecution.
Defendant Has Minimal Criminal History and Crime Was Non-Violent
A judge may sentence below the statutory mandatory minimum, but still pursuant to the Guidelines, where the defendant has a minimal prior criminal history; the offense did not involve weapons, violence, or threats of violence; the defendant was not a leader, organizer, manager or supervisor of others in the offense; and the defendant has disclosed to the government all he/she knew about the crime and related crimes no later than the time of sentencing.
There are many criminal defense attorneys but not all of them are well equipped to represent clients in federal cases. A lawyer must have a very good knowledge of federal sentencing law in order to be provide the competent and effective representation of clients in a federal drug prosecution.