To my surprise in a recent drug sentencing in the Middle District of Florida the Tampa federal Judge reduced the offense level by two based on Attorney General Holder’s recent comments about the need to reduce the amount of prison time in federal sentencing. Though reluctant, there was no objection on the record from the Government. 

Under the Justice Department even law enforcement in Tampa Bay could serve less time for unlawful acts.
Avoiding Jail is Justice’s Goal

For the most part the federal judges and prosecutors in the Middle District of Florida have shown very little inclination to give downward levels at sentencing on what the Federal Sentencing Commission or Congress may do in the future. Yet 

My client was charged with possessing a significant amount of steroids and marijuana found incident to a search warrant. After reviewing discovery and discussing possible defenses, he acknowledged his guilt and accepted responsibility for his actions upon signing a plea agreement. The plea agreement noted that the Government would have no objection to a sentence being given in the low end of the guideline range. 

Yet because of the large quantity of steroids and marijuana as well as a significant prior record the expected federal guideline range appeared to be well within in zone D with a likelihood of at least 12 to 18 months in prison. 

The following facts provided the judge better options under the federal guideline range to allow my client to receive a time served disposition at sentencing.

First, my client’s successful and timely proffer resulted in the Government filing of a 5K motion for substantial assistance. Some times the Government fails to file the motion despite what I believe is excellent cooperation. Here my client never stopped cooperating from the moment of his initial arrest. The assistant U.S. Attorney asked for a two level reduction in sentencing. The Court granted a three level reduction upon hearing testimony from the Government agent about the extraordinary cooperation of my client.

Second, based on Attorney General Holder’s speech the night before the sentencing the Court entertained a motion to reduce the sentence by two additional levels due to the likelihood of future federal Congressional action or action taken by the Federal Sentencing Commission at the behest of the Justice Department. However, the Defendant was asked on the record by the judge to agree that he would not ask for another two level reduction if Congress passed such a law though he could ask for a further reduction if Congress passed a law with more than a two level reduction.

Third, we established that on his own volition my client had enrolled in a halfway house while being free on a signature bond while awaiting trial or plea. We asked the Judge to consider the time in the halfway house as 157 days of time served in jail while awaiting sentencing.

The three level reduction for a successful 5k proffer combined with the two level reduction for the Justice Department’s future legislative goals were sufficient to bring my client from sentencing zone D to sentencing zone B. In zone B the judge has much more discretion to give a fair sentence. The judge gave credit for the time served by my client in the halfway house. Ultimately the judge sentenced by client to time served.

Although things went fine for my client in his case, the Justice Department should act quickly to push the necessary changes thru Congress with help from the Federal Sentencing Commission so that every defendant will have sentencing parity no matter where in the country their drug indictments originated. The goal must be to limit over-incarceration in nonviolent federal drug cases by giving federal judges more sentencing discretion.


Could an unintended consequence of Attorney General Holder’s memorandum for more lenient marijuana enforcement be stricter enforcement of federal steroid laws by federal and state law enforcement? 

Since as many as six million Americans use steroids, pushing for more arrests of steroid users could be catastrophic for unsuspecting users many of whom have no idea that the Government classifies steroids with hard drugs such as heroin, cocaine and LSD with equivalent harsh federal drug trafficking sentencing for relatively small quantities.

Not only do Federal Drug Enforcement Agents appear to be focusing on making more arrests for steroid users, but in the Middle District of Florida located in Tampa Bay numerous arrests are being made by local and state police officers which are then being pursued in federal court rather than in state court. Pushing the cases into federal court garners the risk of much more prison time if a Defendant is convicted. With steroids the actual weight of the drug is not as important as the number of ‘units’ one is accused of possessing, this can make for unfair sentencing results when the drugs are diluted. Therefore, it’s important to take urgent action if one is arrested for steroid possession or for steroid trafficking.

Reducing the damage of a federal arrest may be alleviated if the Government agrees to a timely Waiver of Indictment which allows a federal case to be filed with an information rather than by a grand jury indictment. When the Government files an information limiting the scope of the Defendant’s knowledge or the sheer amount of the steroids the Defendant may have sold or possessed, this can be useful in avoiding minimum mandatory sentences under the trafficking laws especially in cases where steroids have been found incident to a search warrant, but law enforcement has evidence of long term use, buys or sales of steroids. 

Often an early agreement on the filing of an information rather than an indictment from a grand jury has an addition benefit in that the Government also binds itself to an additional agreement that Government won’t object to allow the Defendant to be free on a bond. This is useful in achieving a successful Federal bond, bail and detention strategy. After every Federal arrest a Federal Magistrate determines whether a Defendant should be free on bond. Factors the Judge looks to include the Defendant’s ties to the community and whether the Defendant is a threat to the community. Unfortunately under federal law when a grand jury indicts a person for trafficking in drugs, the presumption is that the Defendant is a threat to the community and therefore must remain incarcerated until the case is resolved.

So there’s much more likelihood that the Federal Magistrate will agree to a bond when an agreement has reached with prosecutors that allows for a Waiver of Indictment and the avoidance of a trafficking charge. The bond gives security to the court that the Defendant can remain free and working to support his family while the case moves forward. In some cases the Magistrate may even allow a signature bond, which is one without direct security other than the signature of the Defendant promising to pay in the future whatever amount the Federal Magistrate believes will prompt the Defendant to attend each court hearing.