Judges, inmates, and others have asked me about the First Step Act, wondering whether it entitles certain defendants to a reduced sentence or an early release from prison. The confusing thing is that there are two First Step Acts—one federal, and one state. The federal First Step Act was signed into law in late 2018. North Carolina’s First Step Act did not become law. Continue reading
Tag Archives: 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.
Drug trafficking offenses can lead to really long sentences, and not just because of the special minimums and maximums that apply to those crimes. Consider this example: My husband and I agree to grow marijuana. We grow and harvest 50 pounds of it. We then arrange to sell it to a street-level distributor. Finally, we drive it in a truck to the distributor, where we hand over the ganja in exchange for a pile of money. How many trafficking offenses have we committed?
The answer is SIX! They are:
- trafficking in marijuana by manufacturing
- trafficking in marijuana by sale
- trafficking in marijuana by delivery
- trafficking in marijuana by transporting
- trafficking in marijuana by possession
- and, the drum roll please . . . conspiracy to traffic in marijuana.
State v. Lyons, 330 N.C. 298 (1991); State v. Perry, 316 N.C. 87 (1986).
And that’s not all! The conspiracy to traffic is punished at the same level as a completed trafficking offense, not one level lower as it typically the case for conspiracy. See, e.g., G.S. 90-95(h)(1) and (i). Now add in those special minimums and maximums for trafficking offenses, run them consecutively and my husband and I are looking at some very serious time apart in prison. And we haven’t even gotten to the fines that apply to drug trafficking!
Compare that to plain old sale or delivery of a controlled substance. If I sell and deliver a controlled substance, it’s just one offense. State v. Moore, 327 N.C. 378 (1990).
As I indicated at the outset, trafficking offenses can really bite.
I mentioned in this prior post that the 2012 Justice Reinvestment clarifications act, S.L. 2012-188, made changes related to drug trafficking. Specifically, the law amended G.S. 15A-1368.1 to make clear that the post-release supervision law applies to drug trafficking sentences and added time onto the maximum sentences for those offenses accordingly. In response to the changes I prepared a revised drug trafficking sentencing chart. It is available here.
The 2012 changes to the law were made effective for offenses committed on or after December 1, 2012. Going forward, it is clear the drug trafficking sentences for crimes occurring on or after that date receive post-release supervision (PRS) just like any Structured Sentencing felony: 12 months of PRS for Class B1–E trafficking, 9 months of PRS for Class F–I trafficking.
The changes do not, however, answer the question of how PRS applies (if at all) for trafficking offenses committed before December 1, 2012. Before it was amended, G.S. 15A-1368.1 said that PRS applied to “all felons sentenced to an active punishment under Article 81B.” Article 81B of Chapter 15A is Structured Sentencing. Some would say that drug trafficking crimes are not sentenced under Structured Sentencing. They are instead sentenced under G.S. 90-95(h), and thus PRS does not apply. I think there are at least two problems with that view.
First, the statute setting out the applicability of Structured Sentencing, G.S. 15A-1340.10, says that it applies to criminal offenses other than impaired driving and certain health control measures. In other words, certain crimes are expressly excluded from Structured Sentencing, but drug trafficking is not among the exclusions. If that statute controls, drug trafficking crimes fall under Structured Sentencing generally, but just happen to have an alternative punishment set out in G.S. 90-95(h)—a possibility expressly provided for within Structured Sentencing itself. G.S. 15A-1340.17(d) (“Unless provided otherwise in a statute establishing a punishment for a specific crime, [punishment] is as specified in the [sentencing grid] . . . .”).
Second, maximum sentences for class C, D, and E trafficking offenses have long been 120% of the minimum plus 9 months, indicating an expectation that they would, like other Class B1–E felons from that timeframe, be released onto PRS nine months before attaining their maximum. And as a practical matter, the prison system has always released those offenders onto PRS like other serious felons.
So, there were at least a few indications that PRS did apply to drug trafficking sentences.
That was all well and good until the Justice Reinvestment Act (JRA) expanded post-release supervision without increasing the maximum sentences for trafficking. That expansion gave rise to a statutory conflict: revised G.S. 15A-1368.2(a) commands a release from prison onto PRS before some inmates have a chance to serve their minimum as required by G.S. 15A-1340.13(d). The problem is most obvious with low-level traffickers. For example, a Class H trafficker who receives a 25–30 month sentence would, at the very latest, be due for release onto PRS after serving 21 months (maybe earlier depending on earned time), but G.S. 15A-1340.13(d) says he may not be released from prison until serving his 25-month minimum.
So what do you do? The issue won’t go away soon. It will persist as long as people are serving sentences for offenses that occurred on or after December 1, 2011 (the effective date of the JRA’s expanded PRS law), but before December 1, 2012 (the effective date of the clarifications act described above). How should sentences for cases in that “gap” be administered?
One possibility would be to give effect to as much of the law as possible and release the person onto PRS as soon as both the early release rule of G.S. 15A-1368.2(a) and the serve-the-minimum rule of G.S. 15A-1340.13(d) rule are satisfied. Applying that rule to the Class H trafficker described above, the inmate would be released from prison onto PRS as soon as he served his 25-month minimum. He would then be on post-release supervision for 9 months with the possibility of reimprisonment for the 5 months remaining on his sentence in the event of revocation (or less, depending on earned time). It’s a little strange for the time hanging over the person’s head not to match the period of supervised release, but not unprecedented. A similar thing happens with Class F–I sex offenders who are under supervision for 60 months with only 9 months time remaining on their maximum. And that’s okay, because the supervision time is dictated by G.S. 15A-1368.2(c), not by the length of time remaining on the maximum sentence.
Other interpretations are also possible. I’ll post an update if I learn more about how the statutory conflicts will be resolved. I imagine that some “gap” cases are being handled right now, and all parties have an interest in knowing how the sentence will be served.
Jeff mentioned in this prior post that S.L. 2011-12 created three new drug trafficking crimes—trafficking in MDPV, mephedrone, and synthetic cannabinoids. I have incorporated those new crimes (effective for offenses committed on or after June 1, 2011) into my tabular summary of the drug trafficking law, available here. The front page of the chart includes a brief summary of the sentencing rules for trafficking (including conspiracies and attempts), and a recap of the law on substantial assistance.
As most of you probably know, G.S. 90-95(h) sets out special sentencing rules for drug trafficking offenses, including mandatory fines and minimum and maximum sentences that apply regardless of the defendant’s prior record. This chart summarizes the law.
During the Felony Sentencing installment of my colleague Alyson Grine’s “Lunchinar” series (available on demand for free viewing or for CLE purchase here), a participant asked whether drug trafficking sentences could be enhanced under the habitual felon law. At the time of the lunchinar, that was a question that had never been answered by our appellate courts. Since then, however, the court of appeals decided State v. Eaton, __ N.C. App. __ (Mar. 1, 2011).
In Eaton, the defendant was convicted of trafficking by possession of 4–14 grams of an opiate (specifically, dihydrocodeinone). That’s a Class F felony under G.S. 90-95(h)(4), which prescribes a 70–84 month sentence and a fine of not less than $50,000. The defendant, who had a lengthy criminal record, was also found to be a habitual felon. He was sentenced as a Class C felon to 133–169 months, the high end of the presumptive range for his record level (IV) under the pre-December 1, 2009 sentencing grid.
The defendant appealed, arguing that drug trafficking sentences—“mandatory” under G.S. 90-95(h), “[n]otwithstanding any other provision of law”—can’t be habitualized. The court of appeals disagreed, reasoning that the drug trafficking law isn’t really any more “mandatory” than any other statutory provision setting out the punishment for a particular crime. Statutes “almost universally employ mandatory language directing that a person convicted of a particular offense ‘shall be punished’ as a Class ‘X’ felon or providing that specific terms of imprisonment are authorized for particular offenses and prior record levels.” Slip op. at 12. The habitual felon law itself provides in G.S. 14-7.6 that a covered offender “must, upon conviction . . . be sentenced as a Class C felon . . . ,” language the court of appeals described as “arguably even more mandatory” than the language in the drug trafficking law. Id. The court concluded by noting that the habitual felon law explicitly excludes a few types of offenses, but drug trafficking isn’t among them.
For now, the rule from Eaton is that drug trafficking convictions may be sentenced under the habitual felon law. The defendant petitioned for discretionary review just last week, so there’s a chance the supreme court might weigh in, and I’ll let you know if it does. As a practical matter, note that under the post-December 1, 2009 sentencing grid many trafficking defendants—all Class C and D traffickers and even some convicted of Class E and F trafficking crimes, depending on their prior record—would actually benefit from being sentenced as habitual felons.