Drug Quantity in Federal Sentencing
In sentencing in federal drug cases, quantity is the most important issue for determining the Sentencing Guidelines. It is rare that the drug amount or weight is limited to the amount charged in the offense of conviction (the amount someone agreed to plea to). The person being sentenced is held responsible for drug amounts involved in his or her “Relevant Conduct.” Relevant Conduct may include a defendant’s own acts as well as the acts of others. U.S. Sentencing Guideline §1B1.3.
The sentencing guidelines hold a person accountable for the “reasonably foreseeable acts and omissions of others” in furtherance of “jointly undertaken criminal activity,” which includes any “criminal plan, scheme, endeavor or enterprise undertaken by defendant in concert with others.” USSG §1B1.3(a)(1)(B). So, the judge will decide if the person being sentenced could reasonably foresee (be aware of beforehand; predict) what the other people involved might do in connection with the “jointly undertaken criminal activity.” This is not only for conspiracy charge.
Someone can be held responsible for reasonably foreseeable acts in preparation for the crime, or in the course of attempting to avoid detection or responsibility for that crime. In the controlled substance cases, the person being sentenced is responsible for “all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook.” USSG § 1B1.3. This is not limited to what co-defendants or charged coconspirators did.
Methods for Calculating Quantity
The amount of drugs used for Sentencing Guidelines may often be wholly dependent on co-conspirator testimony, the credibility of which is left up to the judge to decide. Even if no physical drugs are found with or near the person being sentenced. This is commonly called Ghost Dope. Your federal sentencing lawyer must make the best argument possible at sentences, because the credibility of a witness is hardly ever going to be a good appellate issue. The judge can rely on hearsay and estimates. Too often people being sentenced say, “But it’s just someone’s word. There is no evidence.” Wrong. Testimony or a statement in a proffer is evidence, and the judge can use that evidence to drastically increase your Sentencing Guidelines.
Aside from using uncorroborated statements of codefendants or co-conspirators, federal judges have used a variety of methods to approximate drug amounts. A judge might rely on an estimate of the production capacity of a laboratory based on the amount of precursor drug found in a defendant’s possession. So the judge might say:
- X amount of Pseudoephedrine is used to make Y amount of methamphetamine;
- Defendant had Q amount of Pseudoephedrine, so divide Q by X to get the estimated production methamphetamine.
In many cases the Presentence Report (PSR) will converting seized cash or drug notations into drug amounts. A Drug Enforcement Agency (DEA) will tell the probation officer preparing the PSR that in the current local market a particular drug costs about $3,000 per kilogram. Then the Agent says $15,000 was found a defendant’s home. So, the PSR will “convert” that $15,000 to five kilograms of drug quantity, increasing the Sentencing Guidelines.
A federal sentencing lawyer must challenge the reliability of whatever method the judge uses to calculate the drug quantity. Even though a judge has a lot of discretion (the freedom to decide what should be done in a particular situation), the judge still has to use reasonable and reliable methods for estimating drug quantity. Also, in open court, the judge has to make clear the evidence the judge is using to make the quantity estimate. When a judge does not make a particularized (treat individually or in detail) findings to support the assigned Sentencing Guideline, you may have an issue on appeal, if the federal sentencing lawyer makes the proper objection.
No Evidence to Refute the PSR
The presumption of innocence does not apply at sentencing. If there is at least some evidence to support the drug quantity in the PSR, then it is difficult to challenge the calculation. Most courts are reluctant to grant an objection to drug quantity if a defendant does not offer any evidence to refute the “factual” assertions in the presentence report related to the quantity of drugs. The judge is allowed to adopt those “facts” without further inquiry as long as the assertions are supported by “sufficient indicia of reliability.” This means, if the person being sentenced cannot provide some credible evidence to fight the drug quantity, then the federal defense attorney needs to challenge the “indicia of reliability.” Beware, if you someone decides to testify on their own behalf at sentencing, and the judge does not believe the person, then a lot of bad things can happen, including:
- Loss of Acceptance of Responsibility
- Additional levels added to Guidelines for Obstruction of Justice
- New criminal charges filed for Obstruction of Justice or Perjury
The decision to testify is complex, and a person should consult thoroughly with their federal sentencing attorney.
Important Note: The law can vary throughout the United States federal courts. As an example, as of this post, the Second Circuit requires “specific evidence,” such as drug records, admissions or live testimony, to prove a relevant conduct quantity of drugs for sentencing purposes. The evidence may be circumstantial — such as sampling — but must point to a specific drug quantity for which the defendant is responsible.
Identifying, filing, and arguing the best objections at sentencing is a difficult task. Even experienced lawyers may lack the imagination and attention to detail required to put up the best fight against incorrect or unreasonable Sentencing Guidelines. Fighting these issues is not limited to just filing “objections.” A federal sentencing attorney should start from the very beginning by trying to persuade the Agent investigating the case to view the facts more favorably toward a client. Then the lawyer needs to be sure to educate the probation officer (author of the PSR) about the facts of the case. Chances of success are much higher if you are able to influence how the PSR is written, compared to fighting about it after the fact. Any written objections need to be well researched, concise, and credible. Finally, the lawyer needs to push the judge to make the appropriate findings and rulings on the record. You want to win your arguments at sentencing, but your chances are better if the judge knows you are setting the case up well for an appeal.
Federal Sentencing Attorney Cody L. Cofer is criminal law specialist, Certified 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.