A Perspective on the Proposed Amendments to the Drug Distribution Guideline

Abstract

This Commentary provides a perspective on the U.S. Sentencing Commission’s proposed amendment to the drug distribution guideline. The proposed amendment has the potential to substantially affect federal sentencing and incarceration because of the sheer volume of advisory sentencing ranges that are calculated through the drug distribution guideline. Although the proposed almost-across-the-board offense level reduction is laudable, the Commission should go further in its amendment of the drug distribution guideline. First, the proposed amendment reduces most of the offense levels in the Drug Quantity Table by two levels, but it does not alter the offense levels for distributions of the smallest and largest drug quantities. The amendment would be more internally consistent if the Commission simply reduced the offense levels applicable to the entire Drug Quantity Table by two levels. Second, the amendment continues to base the offense levels in the Drug Quantity Table on the mandatory minimums in the drug trafficking statute. The Commission should delink the Drug Quantity Table from the mandatory minimums. An increasing number of drug defendants escape the operation of otherwise-applicable mandatory minimum sentences, particularly in the wake of the Supreme Court’s decision in Alleyne v. United States and the Attorney General’s directive to federal prosecutors to structure indictments to avoid mandatory minimums for certain low-level, non-violent drug offenders. Fairness dictates that these offenders receive a advisory sentencing range that reflects the Commission’s research and expertise rather than one that is bound to inapplicable statutory mandatory minimums.