With acquittal rates at historic lows in the federal system, sentencing has become the most crucial stage of the federal criminal justice process.  In most cases, the pre-sentence investigation report (PSI) prepared by the probation officer and the sentencing hearing conducted by the judge are the primary means for determining the nature and circumstances of the offense and the history and characteristics of the defendant.

However, the importance of sentencing has not resulted in clear and consistent laws to achieve the purposes of sentencing, which can be described as the imposition of “a sentence sufficient, but not greater than necessary” in accordance with a number of factors set forth in 18 U.S.C. § 3553(a).  Federal sentencing law is a mixed bag of statutory provisions (including mandatory minimum sentencing), Sentencing Guidelines, and case law that often overlap and can complicate the law applicable to a particular case.

What are Mandatory Minimums?

There are a substantial number of statutes that require a minimum prison sentence.  Even if the Guidelines or other § 3553(a) factors appear to warrant a sentence below the statutory minimum, the statutory limit controls.  The most common of these statutes are discussed below, although there are many others.

Drug Offenses Carrying Mandatory Minimum Terms

The federal drug statutes include two types of commonly applied mandatory minimum sentences.  The first is based on the type and quantity of drugs involved: 21 U.S.C. §§ 841(b) and 960(b) provides for minimum sentences of 5 or 10 years imprisonment.  The other type of mandatory minimums is based on criminal history: for a defendant who has previously been convicted of one or more “felony drug offenses,” as defined in 21 U.S.C. § 802(44), the mandatory minimum is at least double and up to mandatory life imprisonment.

Firearms Cases Carrying Mandatory Minimum Terms

18 U.S.C. § 924, which sets out the penalties for most common federal firearms offenses, includes two subsections that require significant minimum prison sentences.  One is § 924(c), which punishes possession of a firearm during and in relation to a “drug trafficking crime” or “crime of violence,”  and provides graduated minimum sentences, starting at 5 years and increasing to a mandatory sentence of life imprisonment, depending on the type of firearm, how it was used, and whether the defendant has a prior § 924(c) conviction.  In addition, a § 924(c) sentence must run consecutively to any other sentence imposed.  A “second or subsequent” § 924(c) conviction carries a mandatory minimum sentence of 25 years.

The other firearm mandatory minimum is found in § 924(e), which is also known as the Armed Career Criminal Act (ACCA).  § 924(e) increases the statutory penalty range for a 18 U.S.C. § 922(g) offense from 0-10 years to 15 years-life if a defendant has three prior convictions for a “violent felony” or a “serious drug offense.”

Child Pornography Offenses

There are a number of mandatory minimum penalties applicable to child pornography offenses under 18 U.S.C. § 2552A, including a 5 year mandatory minimum sentence for a defendant who receives or distributes child pornography.  Receipt and distribution are perhaps the most commonly charged child pornography offenses because of the use of the Internet in downloading illicit images.

Failure to Register as a Sex Offender

A person who is required but fails to register under the Sex Offender Registration and Notification Act (SORNA) and commits a federal crime of violence is subject to a consecutive mandatory minimum sentence of 5 years.

Aggravated Identity Theft

Defendant convicted of this offense are subject to a mandatory minimum sentence of 2 years and a mandatory minimum sentence of 5 years if the offense occurred in connection with certain terrorism-related offenses.  Under 18 U.S.C. § 1028A, defendants are not eligible for probation and the sentence must run consecutive to any other sentence imposed.

Statutes Authorizing Sentences Below the Mandatory Minimum 

A sentence below a statutory minimum is authorized in only two circumstances: when the government moves for a sentence below the mandatory minimum based on cooperation, or when the defendant meets the requirements of a limited “safety valve.”  The safety valve statute, 18 U.S.C. § 3553(f) allows the judge to sentence a defendant below the statutory minimum sentence when:

• The defendant falls within Criminal History category I;
• The defendant did not use violence, credible threats, or possess a firearm or other dangerous weapon in connection with the offense;
• The offense did not result in death of serious bodily injury to any person;
• The defendant was not the organizer, leader, manager, or supervisor in the offense; and,
• The defendant truthfully provided the Government all information and evidence the defendant has concerning the offense.

There is also a Sentencing Guideline, § 5C1.2, which mirrors the requirements of § 3553(f) and reduces the recommended guideline range when no statutory minimum applies.