Wednesday, July 22, 2015

The SAFE Act and Mandatory Minimums

From Kirk, still on the SAFE Act,

So, the ten-to-life mandatory minimum penalties for drug offenses (841(b)(1)(A)) would apply only if the client was an organizer or leader of a drug trafficking organization with five or more participants. Meaning that if your client is not an organizer or leader, no mandatory minimum would apply.

And the (b)(1)(B) mandatory minimum penalties (5-40) only apply if your client was an “organizer, leader, manager or supervisor.”

These terms do not mean what you think they mean (said Inigo Montoyo). The Act provides new definitions, narrower than the current Sentencing Guidelines. A long but helpful block quote follows.

(2) The term “organizer” or “leader” is a person who, over a significant period of time—
(A) exercised primary decisionmaking authority over the most significant aspects of the criminal activity;
(B) engaged in significant planning of the acquisition or distribution of large quantities of drugs or sums of money for the initiation and commission of the offense;
(C) recruited and paid accomplices;
(D) delegated tasks to other participants on a regular basis;
(E) received a significantly larger share of the proceeds of the crime than other participants; and
(F) exercised supervisory control or authority over at least four other participants who meet the definition of “manager” or “supervisor” in subsection (d)(3) over a substantial period of time.
(3) The term “manager” or “supervisor” is a person who, over a significant period of time—
(A) exercised some decisionmaking authority over significant aspects of the criminal activity;
(B) received a larger share of the proceeds of the crime than most other participants; and
(C) provided ongoing, day-to-day supervision of, or specialized training to, at least four other participants over a substantial period of time.

Please note the “and” between the subsections. All of the requirements must be fulfilled before a mandatory minimum applies.

Also, we aren’t done with the impact of the Act on mandatory minimums. More tomorrow.


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