Wednesday, July 13, 2016

Can't get a minor-role adjustment? Aim for a variance instead.

With our thanks to Doug Berman, whose blog you should read as faithfully as you read the morning paper, we highlight an excellent new law-review article about the minor-role adjustment, USSG § 3B1.2.

The article addresses how frequently couriers and mules continue to be denied minor-role adjustments. There are three reasons why. First, reviewing courts apply outmoded versions of the minor-role guideline, ignoring amendments that tentatively creep toward a broader application. Second, the guidelines’ overwhelming emphasis on drug quantity continues to skew sentences. Third, guideline minor-role analyses ignore empirical research about the truly minor roles that couriers and mules serve in drug-trafficking organizations.

These are problems you often cannot address by asking the Court to apply the minor-role guideline. Mules and couriers are entirely fungible members of a drug trafficking organization. They are very often desperate people, who sign on for a brief and moderately lucrative payday. But they are sentenced just like kingpins, because the minor-role guideline does not dictate otherwise. If the guideline can’t help (though sometimes it can), don’t waste your time pounding on the minor-role door. Present the evidence, and ask for a variance.

---From Kirk Redmond

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