Federal sentencing guidelines: 4-level enhancement for fentanyl-laced drugs

Drug overdoses now exceed motor vehicle accidents as a cause of death among Americans. With the opioid crisis reaching new heights, lawmakers are clamoring for ways to curb the death toll - or at least make it seem like they're doing something in the eyes of the public. Unfortunately, that often translates to reactionary increases in already harsh drug penalties.

One such overreaction? Amendment 807 to the federal sentencing guidelines. Effective as of November 2018, section 2D1.1(b)(13) imposes a mandatory four-level enhancement for those who knowingly misrepresent or market fentanyl-laced drugs. "Level" refers to the grid that judges use to determine the appropriate sentence range. The starting point (presumptive sentence) depends on the defendant's criminal history, the offense, and other relevant factors – including whether any "special offense characteristics" apply. Those factors can move a presumptive sentence upward on the grid, resulting in a much harsher penalty.

The fentanyl enhancement is a special offense characteristic that applies to a broad range of federal drug offenses, including:

  • Trafficking
  • Importing/exporting
  • Possession with intent to distribute
  • Attempt
  • Conspiracy

The impact on sentence length is tremendous. For an offender with no criminal history caught with four to eight grams of fentanyl, it means that a presumptive sentence of 18-24 months shoots up to 30-37 months. It's the biggest sentencing enhancement in existence for federal drug cases.

Why target fentanyl?

Fentanyl is an easy target because it contributes to a significant number of fatal opioid overdoses. While some involve pure fentanyl, most - 70 percent - of fatal fentanyl overdoses involve other substances. Heroin, cocaine, methamphetamines and black-market opioids are often laced with fentanyl. It's cheap, fast and easy to produce.

Fentanyl is both extremely potent - fast-acting and up to 60 to 100 times more powerful than morphine - and extremely deadly. Death from overdose can occur in a matter of minutes. And because users are often inexperienced or unaware of its presence, the risk of death skyrockets with fentanyl-laced drugs.

For all of these reasons, fentanyl has become a buzzword in drug policy and a major source of political currency. It's therefore not surprising that 39 states (including North Carolina) and D.C. have enacted harsher penalties for fentanyl in the last decade.

The real impact

Punitive measures are woefully inadequate when it comes to saving lives or constraining the drug trade. Research has repeatedly shown that cracking down with harsher penalties doesn't have any measurable deterrent effect. The reasons for this inefficacy are numerous: illicit manufacturers are driven by profit, not potential penalties. Street-level dealers and couriers are even less likely to be motivated by the specter of harsher penalties. At the federal level, the existing penalties for fentanyl-related offenses were already harsh, with mandatory minimums ranging from five years to life without parole.

What's more, the enhancement is almost certain to have a racially disparate impact. Poverty-stricken minorities are far more likely to engage in low-level dealing or "muling" as a means to fund their addiction. Wealthy suburbanites - who can afford more pure varieties and have no financial need to traffic drugs - won't be impacted.

The enhancement is reminiscent of the crack-cocaine mandatory minimums that disproportionally landed minorities behind bars. The First Step Act reversed those minimums, but by the time it was enacted in late 2018, the fentanyl amendment was already in effect. One step forward, one step back.

Another tool for the prosecution

The enhancement includes a mens rea element, applying only to offenders who "knowingly" sold or marketed fentanyl-laced drugs. Street-level dealers and couriers rarely know the exact chemical compositions of their product. They're not chemists.

Regardless, most of these cases are resolved through plea bargaining. The enhancement thus gives federal prosecutors powerful leverage to flip defendants or extract valuable testimony in exchange for "shorter" prison sentences. Those sentences, though, are still likely to be extremely harsh. And federal prosecutors already have plenty of tools for pressuring defendants to plead guilty.

It remains to be seen whether more effective, nonpunitive measures - such as treatment options, drugs courts and alternative dispositions - will ever rise to the top of federal drug policy. In these politically heated times, it's doubtful.

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North Carolina vs. M.W.
Charge: Charge: Robbery with A Dangerous Weapon (4 Counts), First Degree Burglary, Conspiracy to Commit Robbery with A Dangerous Weapon
Facing: 12 - 17 years in prison
Result: Dismissed

An incarcerated defendant accused our client of participating in the robbery of a group of youth at a party. We were able to raise doubt as to the credibility of this individual. In the end, the prosecutor dismissed these charges, citing a lack of evidence.