Once upon a time, it was reasonably simple to figure out the potential penalties for a criminal offense. In South Carolina, for example, if you were convicted of kidnapping, you would be looking at up to 30 years in prison. S.C. Code § 16-3-910. Possession with intent to distribute crack cocaine? Up to 15 years for a first offense. S.C. Code § 44-53-375(b)(1). Stealing a car? Up to 10 years depending on the value of the car. S.C. Code §§ 16-13-30, -420.

Due to a complicated scheme of recidivism enhancements in the federal criminal code and the hugely influential Federal Sentencing Guidelines, the federal system is far more complicated. This article is directed to statutory sentencing enhancements; a future article will be directed to the guideline enhancements (i.e. the Career Offender Guideline, U.S.S.G. § 4B1.1). 

Anyone representing you in a federal drug case needs to be not just familiar with these potential enhancements but must have internalized the basic statutory (and guideline) schemes and definitions and be consistently reviewing relevant appellate court decisions regarding these issues. If your lawyer cannot tell you what statutory penalties you face based on the counts set forth in your indictment and your criminal record, you need a new lawyer. (Your lawyer telling you that they’ll leave that complicated calculation to United States Probation is a major red flag.)

This article is limited to the primary federal controlled substance statute, 21 U.S.C. § 841. Under federal law, it is a crime “to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). The penalties are set forth in subsection (b) of § 841, and those penalties depend on the drug weight and type, as well as the defendant’s prior convictions, both state and federal.

Setting aside marijuana, which is the subject of a different section (§ 841(b)(1)(D)), the basic penalties for the most common controlled substances (heroin, crack and powder cocaine, methamphetamine, heroin, fentanyl, etc.) are set forth in three sections, (b)(1)(A), (b)(1)(B), and (b)(1)(C). Although all of these subsections are serious, the least serious in terms of potential penalties is (b)(1)(C), which contains no threshold drug weight—any detectable quantity is prohibited.

Under subsection (b)(1)(C), a defendant with no prior drug convictions faces a maximum sentence of 20 years. There is no mandatory minimum sentence. The statutory range is 0 (probation, for example) to 20 years. If, however, the defendant is convicted under this subsection “after a prior conviction for a felony drug offense has become final,” the maximum sentence increases to 30 years. There is still no mandatory minimum.

What counts as a prior conviction for a “felony drug offense”? This is relatively straightforward. A “felony drug offense” is defined in a separate statute to mean “an offense that is punishable by imprisonment for more than one year [the federal definition of a “felony”] under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44). Importantly, a “felony drug offense” can be mere possession—no need for distribution or intent to distribute. In most states, possession of controlled substances other than marijuana can carry a sentence of more than a year and, therefore, are felonies under federal law. See, e.g., S.C. Code § 44-53-370(d)(3) (prescribing a sentence of “not more than three years” for possession of cocaine in South Carolina); 720 ILCS 570/401 (prescribing a sentence of 4 to 15 years for possession of less than 15 grams of cocaine in Illinois).

Subsections (b)(1)(B) and (b)(1)(A), which set forth threshold amounts of controlled substances, carry mandatory minimum sentences of five years and ten years, respectively, even with no recidivism enhancement. The threshold amounts under (b)(1)(B) include the following:

• 100 grams or more of heroin
• 500 grams or more of cocaine
• 28 grams or more of cocaine base
• 10 grams or more of PCP
• 1 gram or more of LSD
• 40 grams or more of fentanyl
• 5 grams or more of methamphetamine (ice) or 50 grams or more of a mixture containing methamphetamine

The threshold amounts under (b)(1)(A) are ten times higher than those in (b)(1)(B):

• 1 kilogram or more of heroin
• 5 kilograms or more of cocaine
• 280 grams or more of cocaine base
• 100 grams or more of PCP
• 10 grams or more of LSD
• 400 grams or more of fentanyl
• 50 grams or more of methamphetamine (ice) or 500 grams or more of a mixture containing methamphetamine

Subsections (b)(1)(B) and (b)(1)(A) also contain recidivism enhancements, but the types of prior convictions that trigger those enhancements are different from the prior convictions that trigger the enhancement in subsection (b)(1)(C).

Under (b)(1)(A) and (b)(1)(B), defendants are subject to enhanced statutory penalties if they have been convicted of “a serious drug felony or serious violent felony.” These two terms, “serious drug felony” and “serious violent felony,” are defined in other statutes and those definitions are, unfortunately, NOT straightforward.

A “serious drug felony” is defined as either (a) (1) a federal drug offense for which a defendant could be sentenced to ten years or more or (2) an offense under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute” a controlled substance (not mere possession) and for which a defendant could be sentenced to ten years or more” and (b) for which the defendant served more than 12 months imprisonment and (c) the defendant’s release from the term of imprisonment imposed was within 15 years within the commencement of the instant offense. 21 U.S.C. § 802(57).

Practical questions abound!

• For (a)(1) and (a)(2) above, forget what sentence was actually imposed, could the defendant have been sentenced to ten years so more (i.e. is the maximum statutory sentence for the offense ten years or more)?
• If the prior conviction is a state offense, did it involve “manufacturing, distributing, or possessing with intent to manufacture or distribute” a controlled substance (i.e. does it require more than mere possession for a conviction)?
• Now ignore the maximum potential sentence for the prior conviction and also ignore the sentence actually imposed—did the defendant serve more than 12 months?
• So, you’ve determined the maximum potential sentence (ten years or more) and the time the defendant served (more than 12 months), now, figure out whether the defendant was released from that term of imprisonment within 15 years of the commencement of the federal offense? (When did the federal offense commence? Simple if the charge is distribution but not simple if the charge is a conspiracy.)

The fact that possession-only offenses are not predicate offenses for the recidivist enhancements in (b)(1)(B) and (b)(1)(A) leads to some counterintuitive results. For example, in South Carolina, the most serious drug offenses are “trafficking” offenses, which set forth the highest threshold amounts of drugs. South Carolina’s trafficking statute prohibits, for example, “actual or constructive possession or…attempt[ing] to become in actual or constructive possession” of ten grams or more of cocaine. So it is a mere-possession offense and does not trigger the recidivist enhancements in (b)(1)(B) and (b)(1)(A). See United States v. Brandon, 247 F.3d 186 (4th Cir. 2001) (holding that North Carolina’s “trafficking” statute, which has similar possession-only language, does not count as a predicate under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which also requires more than mere possession). 

The definition of a “serious violent felony” is no simpler. A “serious violent felony” is defined as one of the following:

• Murder,
• Manslaughter other than involuntary manslaughter,
• Assault with intent to commit murder,
• Assault with intent to commit rape,
  • Sexual abuse,
  • Abusive sexual contact,
  • Kidnapping,
  • Aircraft piracy,
  • Robbery,
  • Carjacking,
  • Extorsion,
  • Arson,
  • Firearms use,
  • Firearms possession during and in connection with or in furtherance of a controlled substance offense or crime of violence, or
  • Attempt, conspiracy, or solicitation to commit any of the above.

21 U.S.C. § 802(58); 18 U.S.C. § 3559(c)(2)(F)(i). Setting aside that all of these terms have definitions of their own, which present another level of complication (what is the difference between “sexual abuse” and “abusive sexual contact”?), the definition of “serious violent felony” has a catch-all, which includes “any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 3559(c)(2)(F)(ii) (emphasis added).

What offenses are included within that catch-all? Where to begin…the litigation regarding this and related questions has been nonstop for many years and tweaks and modifications to the controlling or potentially persuasive law arise daily. It is a mess, and defendants are left guessing whether their prior convictions trigger enhanced statutory penalties.

For all the delineated offenses (murder, manslaughter, assault, etc.) and the catchall offenses (those that have “as an element the use, attempted use, or threatened use of physical force against the person of another”), the defendant must have served more than 12 months in custody. There is no requirement that the defendant be released within 15 years of the commencement of the federal offense, as there is with a “serious drug felony.”

To determine whether a given state conviction qualifies as a catchall “serious violent felony” requires an additional level of analysis to determine whether the state offense “categorically” falls within the scope of the catchall provision. This “categorical approach” requires an analysis of whether the elements of the prior offense include “the use, attempted use, or threatened use of physical force against the person of another.” Put differently, does the prior offense criminalize the same or a narrower range of conduct than the definition of “serious violent felony”? Put a third way, do the elements of the prior conviction include any conduct (the most innocent conduct) that does not include “the use, attempted use, or threatened use of physical force against the person of another”? If it does, the prior offense is broader than or falls outside the scope of the catch-all provision.

Again, we haven’t even gotten to the Federal Sentencing Guidelines, which may play an even larger role in your case. Call me today to find out what your statutory penalties really are, whether United States Probation has calculated your penalties incorrectly, and whether your sentencing judge has sentenced you to an illegal sentence.