Ghost Dope in the Federal Sentencing Guidelines
When you are convicted in federal court, you are not sentenced based only on the charge for which you are found guilty. Your sentence will take into account everything that the judge decides is “Relevant Conduct.” Sometimes this includes what is commonly known as “Ghost Dope.” People call it “Ghost” because it is not physically present or recovered by law enforcement. The “dope” only exists in the statements and proffers of government incentivized witnesses (commonly called snitches). These uncorroborated accusations of co-defendants or “confidential human sources” may drastically increase the Sentencing Guideline offense level based on drug quantity. Sometimes, the United State Government even seeks convictions based wholly on “Ghost Dope.”
Can you have higher Sentencing Guidelines because of Ghost Dope? Yes. To achieve “truth in sentencing” the federal government uses “Relevant Conduct” to calculate the Sentencing Guidelines. The United States Sentencing Commission says “Relevant Conduct” is the “Cornerstone” of the Guideline System. Relevant conduct is supposed to be a person’s actual conduct—and not simply the conduct for which he or she was convicted—that is considered, along with a person’s conduct reflected in the count or counts of conviction, to calculate his or her sentencing guideline range.
PSR has a Higher Drug Quantity than Expected
Someone may enter a plea of “Guilty” to a charge of possession with intent to distribute a specific amount of a controlled substance. Then the person may execute a Factual Resume with a summary of facts that contain a specific amount of a controlled substance. Later the person looks at their Presentence Report (PSR) to see the drug quantity they are being sentenced for is drastically higher than the charge or the agreed to in the Factual Resume. This is a common scenario, and hopefully it was discussed with the federal defense lawyer before the plea was entered.
The judge is not bound by the facts you have agreed to, even if the prosecutor agrees with you. Your only options are to accept the PSR or object and try to convince the judge that the higher Sentencing Guidelines should not apply. Fighting Ghost Dope can be a complex and risky legal maneuver. Unlike deciding whether someone is Guilty or Not Guilty, the burden of proof (amount of evidence required) for federal sentencing is not Beyond a Reasonable Doubt. The judge just has to believe there is a Preponderance of the Evidence. Basically, this means there is slightly more evidence of the PSR drug quantity than evidence that the drug quantity is inaccurate. This is compounded by the presumption of reliability given to the PSR. (Fifth Circuit case law).
Fighting Inflated Drug Quantity at Sentencing
Fighting the drug quantity is risky, because the defendant could lose Acceptance of Responsibility. A federal sentencing attorney needs to be intimately familiar with: the Sentencing Guidelines for Acceptance of Responsibility; case law regarding losing Acceptance levels; and the practice of the judge that will be presiding over sentencing.
An attack of the drug quantity that is not based on physically seized or observed drugs can take two forms: a legal challenge; or a factual challenge. Basically, a legal challenge is based on the legal principles and rules related to determination at sentencing. A factual challenge is made by presenting evidence that contradicts the Ghost Dope included in the PSR. An attorney may consider a legal challenge, because it may not carry the same risk of loss of Acceptance of Responsibility. Further, if a defendant provides an affidavit or testimony that the judge disbelieves, then the defendant may face increased Sentencing Guidelines for obstruction of justice or even new criminal charges.
You cannot rely on a blog post or general internet “research” as your guidance for the fight against Ghost Dope. This is a very complex and nuanced issue. Find a federal criminal defense attorney you trust, walk through your concerns with the lawyer, and allow that attorney to guide your challenge to the drug quantities.
Federal Lawyer in Texas
Fort Worth Federal Attorney Cody L. Cofer is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is licensed to practice in the Federal Northern District of Texas and the United States Court of Appeals for the Fifth Circuit. He is a former Assistant Federal Public Defender for the Northern District of Texas, Fort Worth Division. He has defended hundreds of federal cases. Often, Mr. Cofer is engaged as a speaker for groups of other federal criminal defense attorneys.