Drug/Heroin Prosecution & Sentencing Federal Bar Association – Dayton Chapter Southern District of Ohio Federal Sentencing & Criminal Practice Institute Dayton, Ohio – Wednesday, April 26, 2017 April 21, 2017

Drug Offenses §2D1.1

Based on 67, 742 guideline cases National – FY 2016 Based on 67, 742 guideline cases

Southern District of Ohio – FY 2016 Based on 502 guideline cases

Length of Imprisonment by Drug Type – FY 2006-15 Average Prison Sentence in Months

§2D1.1 Drug Trafficking, Etc. (cont.) Base Offense Level (BOL) (apply the greatest): (5) the offense level from the Drug Quantity Table EXCEPT if mitigating role (§3B1.2) applies: BOL Reduction 32 -2 34 or 36 -3 38 -4 If resulting BOL is greater than 32, and minimal role (§3B1.2(a)) applies, decrease to BOL 32 6 6

§2D1.1 Drug Quantity Table Heroin Base Offense Levels (BOLs) 90 KG 30 KG 10 KG 3 KG 1 KG 700 G 400 G Level 38 Level 36 Level 34 Level 32 Level 30 Level 28 Level 26 7

§2D1.1 Drug Quantity Table Heroin Base Offense Levels (BOLs) (cont.) 8

Weight of Controlled Substance Note (A) to Drug Quantity Table Unless otherwise specified, the weight of a controlled substance refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance

Drug “Actual” (i.e., Pure Drug) Notes (B) & (C) to Drug Quantity Table Drug purity is only factored for methamphetamine, amphetamine, “ice,” PCP, oxycodone, and hydrocodone For meth, amphetamine, and PCP, a comparison is made between the offense level for the drug “actual” and the offense level for the mixture or substance of the drug, and the greater is used Note that Percocet sentences will be reduced

Drug Equivalency Tables §2D1.1, App. Note 8 Drugs not included on the Drug Quantity Table are converted to an equivalent amount of marijuana, which is on the Drug Quantity Table E.g., MDMA (“ecstasy”) 1 gm = 500 gm marijuana Different types of drugs are converted to a marijuana equivalency so as to be added together E.g., heroin and cocaine

Example: Use of Drug Equivalency Tables for Two Different Drugs 2 kg cocaine and 500 gm of heroin Marijuana equivalencies: 1 gm cocaine equals 200 gm marijuana 1 gm heroin equals 1 kg marijuana 2 kg cocaine equals 400,000 gm (400 kg) marijuana 500 gm heroin equals 500 kg marijuana Total 900 kg marijuana is Base Offense Level 28

The Drug Guideline (§2D1.1) & Relevant Conduct (§1B1.3) Application note 4 addresses the situations where the Commission does not wish a “double counting” application to occur.

Chapter Two Offense Guidelines on the Included List at §3D1.2(d):

The Drug Guideline & Relevant Conduct §§2D1.1 & 1B1.3(a)(2) & 3D1.2(d) Relevant Conduct analysis is “expanded” to include drug offenses in the same course of conduct or common scheme or plan as the offense of conviction for which the applicable Chapter Two guideline would also be §2D1.1 This does not require that there actually be multiple counts of conviction, however Application note 4 addresses the situations where the Commission does not wish a “double counting” application to occur.

3-Part Analysis of §1B1.3(a)(1)(B) Determinations required for acts of others to be relevant conduct What was the scope of the defendant’s jointly undertaken criminal activity? Were the acts of others “in furtherance of” the defendant’s jointly undertaken criminal activity? Were the acts of others “reasonably foreseeable” in connection with the defendant’s jointly undertaken criminal activity? AND 16 16 16 16

Determining Scope in a Conspiracy §1B1.3, App. Note 3(B) Scope of criminal activity jointly undertaken by a defendant is not necessarily the same as the scope of the entire conspiracy (i.e., Pinkerton doctrine is broader than “jointly undertaken criminal activity”)

§2D1.1 – “The Drug Guideline” §2D1.1(b) Specific Offense Characteristics Level (1) if a firearm, dangerous weapon was possessed +2 * * * (17) if defendant meets the subdivision criteria (1)-(5) of §5C1.2(a) (“the safety valve”) -2 §5C1.2(a) 2. the defendant did not . . . possess a firearm . . . 18 18

Role in the Offense Chapter Three, Part B Levels §3B1.1 Aggravating Role +4,+3 or +2 §3B1.2 Mitigating Role -4, -3 or -2 §3B1.3 Abuse of a Position of Trust or Use of a Special Skill +2 19 19 19

Role and Relevant Conduct Chapter Three, Part B Introductory Commentary Role is determined on the basis of relevant conduct and not solely on the acts in the count(s) of conviction 20