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How does the federal drug plea bargaining work in terms of quantities? Do you plead to a quantity of one drug if you sell two?

Orlando, FL |

How does the federal drug plea bargaining work in terms of quantities? Do you plead to a quantity of one drug if you sell two? Or do you plead to lesser quantities of both drugs?

Attorney Answers 5

  1. Every case is different, but as a general rule federal plea bargains work by negotiating with the AUSA which usually culminates in a guilty plea to the most serious count and the government abandoning the remains charges. The weight of the substance determines the sentencing range and the Judge determines the sentence based upon a review of a PSI ( a comprehensive sentencing memorandum prepared by Probation for the benefit of the Court) and various arguments of counsel for the respective parties.

    Federal sentencing is an art form and is not to be taken lightly. The "generalities" that I have described are just that. It is critical to note that every case, and every Defendant, and every PO (who prepares the almighty PSI) and every Judge are unique. You MUST, absolutely unequivocally must, speak in detail with an experienced criminal defense litigator before considering a guilty plea.

    The deck is stacked against you in federal court from the outset and a failure to protect your interests can be measured in years when it comes t sentencing.

    Good luck.

    First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.)

  2. You plead to the exact quantity described through the factual basis and usually adopted by the PSR. The AUSA and your defense attorney cannot stipulate to a quantity other than the actual without misleading the court and the ethical boundaries. Work with your attorney and fight any factual basis that adds in estimates or enhancing factors.

  3. The quantity of a controlled substance to which a defendant admits distributing in the charge of conviction is relevant for the purpose of determining the the maximum and minimum penalties that the district court may impose at sentencing. For example, a plea of guilty to one count of the distribution of no specific quantity of cocaine hydrochloride (HCl) (powder) is punishable by no more than 20 years of imprisonment; at least 500 grams, no less than 5 years nor more than 40 years; and at least 5 kilograms, not less than 10 years nor more than life. However, a person charged with distributing at least 5 kilograms of cocaine HCl (10-life) may plead guilty to the "lesser included offense" of distributing no specific quantity (0-20 years) and argue at sentencing for the attribution of a lesser amount of cocaine HCl than the original 5 kilograms or more charged. Nonetheless, the US Sentencing Guidelines, pursuant to U.S.S.G. §§ 1B1.3 and 2D1.1, will consider all drug quantities in the charge of conviction and all "relevant conduct," which includes all quantities of drugs that were distributed by the defendant, that he or she aided and abetted in distributing, and that were distributed as a part of the "criminal plan" or "scheme." Although these quantities will factor into the advisory Guidelines range, a plea of the lesser quantity will avoid the imposition of a mandatory minimum term of imprisonment without application of the "Safety Valve" in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 and substantial cooperation pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1.

    Joshua Sabert Lowther, Esq.

  4. The federal sentencing guidelines contain "drug equilavency tables." A certain weight of the primary drug charged can be increased by counting the drug equilavency of another type of drug. Having counts dropped may not help you, as the guidelines may apply other "relevant conduct" in determining the sentence. In this field, you need an experienced federal attorney, not one with only state law experience.

  5. The quantity of controlled substance is seldom a negotiating factor in federal, unlike state, prosecutions. That being said, small quantities and the amount listed in one count of the charges may be used to maximize the defendant's position in a negotiation environment.

    Of course, every answer or response is based on the information provided in the question asked and requires a much more complete context than is available in this public forum. This answer/response should NOT be relied upon to make any legal decisions. Seek the advice of an experienced Federal and/or state criminal defense attorney in your jurisdiction BEFORE you say or do anything.

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