Posted by BNB Quiz Questions:
1. Does a prior cocaine conviction qualify as an ACCA serious drug offense if (at the time of the prior offense) the state’s definition of cocaine included ioflupane, while the federal definition of cocaine excluded ioflupane?
2. When a sentencing court decides the scope or breadth of a substantial-assistance departure, may it consider all the usual § 3553(a) sentencing factors? If not, what may it consider?
3. Should a plea agreement reference U.S.S.G. § 5K1.1 (and Rule 35) and 18 U.S.C. § 3553(e), and should it name all the counts for which the government is obligated to make a departure motion?
Eleventh Circuit opinions:
Picture the iconic scene in Indiana Jones and the Temple of Doom when Indy skids through the rapidly closing door just in time to grab his hat. The defendant in US v. Miller just did the same thing—figuratively speaking. In Miller, the Eleventh Circuit revisited the “categorical approach” and the Armed Career Criminal Act (“ACCA”). The ACCA’s 15-year mandatory minimum is triggered when there are three prior “serious drug offenses.” But remember: If a prior drug conviction was under state law, and the state law’s definition of a drug was broader than the federal law’s definition of that drug at the time the state offense was committed, then that prior state conviction does not count as an ACCA predicate. All of Miller’s prior Florida convictions took place in February and March of 2017 and involved cocaine. But at that time, Florida’s definition of “cocaine” included “ioflupane,” while the federal definition of “cocaine” did not. Because the elements of the prior state convictions were categorically broader than the federal version of the law at the time, none of Miller’s priors counted as ACCA predicates. Miller escaped the clutches of the 15-year mandatory minimum. (And, by the way, Florida amended its cocaine law to exclude ioflupane only five months after Miller committed his crimes.) Georgia readers are undoubtedly wondering whether this decision impacts prior Georgia drug convictions. Please contact our office if you have any questions! [By Sean Young].
When the government files a motion under 18 U.S.C. § 3553(e) (which is akin to, but different than, a motion under U.S.S.G. § 5K1.1), the court may drop below a mandatory minimum sentence to reward a client’s substantial assistance. When the court decides the scope of the departure, may it consider all the usual § 3553(a) sentencing factors? In US v. Altagracia Perez, the Eleventh Circuit said no. Any reduction below the mandatory minimum must be based upon the client’s cooperation alone. The court cannot consider the circumstances of the offense, the history of the client, the need to provide care, or any of the other § 3553(a) factors. One note: A court may consider the § 3553(a) factors if the mandatory minimum is broken based on both § 3553(e) and upon § 3553(f) (the safety valve provision). Despite the above, it is still appropriate to address those § 3553(a) factors in the context of cooperation. For example, if a client committed a drug offense due to threats from a cartel or to secure money for a sick loved-one, then under U.S.S.G. § 5K1.1(a)(3), which requires the court to consider nature and extent of the defendant’s assistance, the mitigative reasons for your client’s crime in the drug-offense are relevant. The same logic applies if your client was susceptible to exploitation due to their youthfulness, trauma, or intellectual shortcomings. We must find a way to shoehorn a discussion of the client’s life story into a discussion of their cooperation. [By Stephen P. Johnson].
In US v. Day, the Eleventh Circuit held that a motion to depart below a mandatory minimum, per 18 U.S.C. § 3553(e), is offense specific. Unfortunately, Day was facing five-year mandatory minimum terms on two distinct counts, and the government’s departure motion mentioned only one. Day, a long-time drug addict, was stopped for a traffic infraction leaving her supplier’s trailer park, which unfortunately happened to be under surveillance. A search and pat down discovered methamphetamine in the car and a gun on her person. Day pled guilty to both offenses. Her plea agreement contained standard Section 5K1.1 language about government discretion. At sentencing, the government moved for a downward departure for only the methamphetamine offense. The district court sentenced Ms. Day to “time served” on Count 1 and one day on Count 2, consecutively. This sentence reflected Ms. Day’s breathtaking life turnaround during two years of pretrial release all the while providing Herculean cooperation to the government. The government objected because the motion only related to the first count, requiring five years in prison on the second. The district court judge disagreed. On appeal, the panel offered a mechanical reversal, pointing to the language of § 3553(e) and Eleventh Circuit precedent which allows a count-specific departure motion. And the plea agreement was not breached because it said nothing about § 3553(e) at all. Perhaps the most important words written in this offering were penned by Judge Kidd in concurrence. He recounts in detail Day’s life reversal: completing a year-long recovery program, working as a post-graduation mentor to recovering women in that program, remaining clean for years, maintaining two jobs, paying all her fines, obtaining a driver license for the first time in 12 years, obtaining housing, and repairing her relationships with her daughters. Oh, also, in the middle of drug addiction treatment, she cooperated against two suppliers who pled guilty. Judge Kidd recognized that his hands were tied but called for “reflection” about the asymmetry of district court discretion when considering an upward departure versus downward. Finally, speaking directly to the only actor with “nearly unbound discretion both ways,” Judge Kidd expresses his “hope” that the line prosecutor (whom he calls out by name) uses the discretion afforded to her by the people of the United States to reach a just result in Day’s case. [By Tom Hawker].
Answers:
1. No, when the state definition of the drug is broader than the federal definition (at the time of the state crime), it does not count as an ACCA serious drug offense.
2. No, a sentencing court, when it decides how much to reward a client’s substantial assistance through a § 3553(e) motion, may not consider the § 3553(a) sentencing factors, but must consider only facts related to the client’s cooperation.
3. Yes, make sure to insist on a commitment that the government’s motion under § 3553(e) must apply to all counts with a statutory mandatory minimum.
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