Options to Mitigate Sentences for Drug Trafficking

North Carolina’s special sentencing rules for drug trafficking are tough. A recently revised summary of those rules is available here. They include mandatory imprisonment and fines that go well beyond the sentence for a crime of comparable offense class on the regular Structured Sentencing grid. A first-time offender convicted of Class G sale of a Schedule I controlled substance could get an 8-month minimum sentence and probation. A Class G trafficker gets 35–51 months, active, plus a $25,000 fine. As Jessie noted in this prior post, trafficking sentences can pile up quickly.

With that in mind, I get a fair number of questions about situations where trafficking is the right charge as factual matter, but everyone, including the prosecutor, feels that the sentencing rules of G.S. 90-95(h) aren’t the appropriate measure of justice in the case. This post collects some of the options for dialing a trafficking sentence back to something between the mandatory sentences of G.S. 90-95(h) and the regular sentencing grid.

Substantial assistance. Under G.S. 90-95(h)(5), the sentencing judge can give a person convicted of trafficking essentially any sentence—a lower prison term, a reduced fine, or probation—if the judge finds that that the defendant has provided “substantial assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals.” The assistance offered need not be limited to accomplices, etc., in the defendant’s individual case; the court can consider assistance offered in the prosecution of other cases. State v. Baldwin, 66 N.C. App. 156, 158 (1984). There is no time limit on when the assistance must be rendered; any time before sentencing is fine. State v. Perkerol, 77 N.C. App. 292 (1985).

The ultimate decision on whether the defendant provided substantial assistance is in the discretion of the trial judge. State v. Wells, 104 N.C. App. 274, 276–77 (1991). And even when the judge finds that the defendant has offered substantial assistance, the decision to grant any sort of relief is also discretionary. State v. Willis, 92 N.C. App. 494 (1988).

When the judge finds substantial assistance and decides to reduce the sentence, the reduction is not limited by the ordinary Structured Sentencing grid for that class of offense. State v. Saunders, 131 N.C. App. 551, 553 (1998). However, to aid in the administration of the sentence, the court should probably order a maximum that corresponds to the imposed minimum according to the regular formula: 120% of the imposed minimum, rounded to the next highest month, plus additional time for post-release supervision as appropriate.

Attempted trafficking. Under G.S. 90-98, attempted trafficking is the same offense class as the completed offense, but it is punished under the regular sentencing grid for that offense class and that defendant’s prior record level. Returning to the grid results in a substantially reduced sentence. To illustrate, a Class E trafficker gets an active sentence of 90–120 months; the corresponding attempt could get as little as 15 months, suspended, depending on the defendant’s record. There’s also no mandatory fine for the attempt.

Note that G.S. 90-98 also suggests that conspiracies to traffic are sentenced under the regular grid. They are not. G.S. 90-98 begins by saying that it applies “[e]xcept as otherwise provided in this Article.” G.S. 90-95(i) otherwise provides, saying that the mandatory penalties of G.S. 90-95(h) apply to conspiracy convictions just as they apply to the object offense.

Habitual felon. In State v. Eaton, __ N.C. App. __, 707 S.E.2d 642 (2011), we learned that trafficking convictions may be sentenced under the habitual felon law. As I noted in this prior post, application of the habitual felon law results in a shorter sentence for many drug traffickers. A Class D trafficker gets 175–222 months. Habitualize that crime to Class C and the defendant could get as little as 44–65 months depending on his or her record.

Consolidated or concurrent sentences. Drug trafficking sentences must run consecutively with “any sentence being served by the person sentenced.” G.S. 90-95(h)(6). However, as Jeff discussed here, a trafficking conviction may run concurrently or apparently even be consolidated with other convictions sentenced at the same time, including other trafficking convictions, as none of them is yet “being served.” State v. Walston, 193 N.C. App. 134, 141–42 (2008).

Not Advanced Supervised Release. One form of mitigation that probably does not apply to drug trafficking is Advanced Supervised Release. An ASR date is determined based on the “shortest mitigated sentence for the offense at the offender’s prior record level.” G.S. 15A-1340.18(d). Neither of those determining factors makes sense as applied to drug trafficking: there are no mitigated sentences for drug trafficking under G.S. 90-95(h), and drug trafficking sentences do not take prior record level into account.

Those are some of the options I can think of. If you know of others or have thoughts on these, please post a comment. Whether as part of wholesale reform (like Jeff discussed yesterday) or retail-level plea negotiations, it’s good to have options.

3 thoughts on “Options to Mitigate Sentences for Drug Trafficking”

  1. Hi Jamie. My friend has an offense date of 7/2010 for trafficking. It was his first offense, he received 42 months. He was convicted 9/2011. His projected release date is 6/20/14. I have read some of your previous blogs where you stated that they have actually used the ASR law for some defendants who had an offense date prior to 12/11. Do you know how this happened? If his family were to hire an attorney, could this ASR be a possibility for him? I am thinking not after reading this blog. I personally contacted the parole board on his behalf and was told he did not qualify for ASR simply due to his offense date. Please advise.

  2. My new husband made a few poor and unlawful choices in a period in his life following his service in the US Army during Desert Shield and Storm and once out comes home to from work to find his wife well bedded down with another. PTSD is real. So with no priors he was arrested, convicted, sentenced and incarcerated. He then served the minimum of 3yrs & 4mo during which he was on work release; then completed parole his requirements was released and has never crossed the line again.
    It is devastatingly hard to put it behind you when everywhere you go it’s the only thing any possible employer or agency seems to see. The DSS has him classed with an H felony but according to the NC DPS Offender Public Information website He is type D. This means he is not eligible to receive or be counted a part of a household who does, yet every penny he makes is applied to that household. It’s as if I earned it myself and he did not exist. Since the only two in the home that count are myself and our 2 yr old we are eligible for $16 EBT a month. He needs to be able to work and get paid reasonably for it but when you are desperate to work steady you take the job(s) available even if it keeps you away from your home and bed for a week or more at the time. Now his employer informs him that he has a hefty garnishment being taken out of his checks for the State to total $84,000+! Please help us! We’d like to not need programs to assist us. We would love to put the past away and move forward. So if you’d be so kind, How do we and when can we get this expunged? Does the fact that he was charged and convicted of attempt play a part in his classification and/or his expungement possibilities? Is there any thing we can do about the garnishments? Or can you refer me to any entities that may be able to us?

    The following is info from the earlier mentioned site. (I thought itnmight be helpful in your giving me the best answers.)

    Sentence Number: BA-001
    Sentencing Penalty Class Code: CLASS D
    Offense Date: 01/24/2007
    Sentence Begin Date: 01/24/2008
    Actual Release Date: 04/17/2011
    County Of Conviction: RANDOLPH
    Docket#: 07050569
    Commitment: INITIAL
    Custody Classification: MINIMUM 3
    Total Incarceration Term: 4 YEARS 9 MONTHS
    Minimum Term: 3 YEARS 4 MONTHS
    Parole Begin Date: 04/17/2011
    Parole End Date: 01/12/2012


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