Federal Drug Trafficking Sentence: 24 Months, Not 5 Years

How do federal drug trafficking sentencing guidelines work?

Drug type and quantity set the starting range. Mario Hernandez was stopped at the border with 162 pounds of cocaine, and his presentence report recommended five years; after nine months of preparation, Judge Anthony Battaglia imposed 24 months. He completed RDAP and served 11 months.

Mario Hernandez spent nine days in county jail after his arrest. He watched other men come back from their sentencing hearings with numbers they hadn't expected. Then he listened to what they said. They blamed their lawyers. They blamed the judge. They blamed everyone else.

"I realized they wasted their chance to influence their probation officer or judge. Then they spent their time blaming their lawyer, the judge, and everyone else. I wanted to go down a different path."

If you are out on bond and waiting for a sentencing date, you are standing where Mario stood the day he walked out of that jail. The men he watched had already spent their time. You still have yours.

October 11, 2017

Mario worked at a car dealership in San Diego. For years he crossed the border every day, using a SENTRI card to make the trip faster.

On October 11, 2017, Border Patrol stopped the car he was driving. Inside were 162 pounds of cocaine.

The nine days in county jail that followed were also his first nine sober days in three years. He was released on bail and pleaded guilty. His presentence investigation report recommended five years in prison.

He had nine months before sentencing.

What the guidelines see

In a federal drug case, the advisory guideline calculation starts with drug type and quantity, then adds relevant conduct, criminal history, and other case-specific factors. The government's file could tell the court the weight, the date, and the border crossing.

It couldn't tell anyone that Mario once slept on the floor of a one-room apartment in Mexico City with 13 other aspiring performers, sharing one bathroom. It couldn't tell anyone that he went on to sing in Mexican productions of Phantom of the Opera, Jesus Christ Superstar, and Man of La Mancha, or that he toured the United States with Miss Saigon.

Under the law, the judge has to consider the person as well as the grid. Nobody fills in that part of your file but you.

Nine months, three jobs

After his release on bail, Mario found me online and read Lessons from Prison. He hired White Collar Advice nine months before his hearing. He spent those months on three jobs, and you have the same three.

Job one: say how you got here.

Mario was born in California and grew up between the United States and Tijuana. There was abuse at home. He left for Mexico City to train as a singer and actor, and spent fifteen years on stage before coming home to his family. He sold cars in San Diego.

Then his marriage fell apart. He ran up debt and drank heavily. His brother-in-law, Oscar, offered him money to drive a car across the border. Mario was paid $4,000 for the first trip. When he asked what he was carrying, Oscar told him marijuana. Mario kept driving for about two years.

"I am deeply sorry that I lacked the strength of character to turn away from his proposition."

His narrative covered all of it: Tijuana, the abuse, the training and the stage, the marriage, the drinking, the debt, and the yes he gave Oscar. None of it excused carrying drugs across the border. Mario named his choices and owned them. He also made sure the judge would know everything that came before that car.

Write down the year your life started sliding. Then write down the first time you said yes. Everything between those two dates is what your narrative has to cover, and the second date is what it has to own.

Job two: get ready for the probation officer.

Mario prepared for his presentence interview and learned how RDAP, the Bureau of Prisons' Residential Drug Abuse Program, works. The officer who interviews you writes the report the judge reads, and later the report the Bureau of Prisons reads when deciding who qualifies for programs like RDAP. If alcohol or drugs are part of your story, the interview is where that history gets on the record.

Job three: plan the years after prison.

Mario's life plan covered sobriety, education, his children, and a possible return to music and theater.

"Not only did I prepare for sentencing, I also prepared for my life after prison. My life was spinning out of control before my arrest. Thanks to my work with White Collar Advice, I realized I still had a lot to live for."

When your lawyer is skeptical

Mario's defense attorney was skeptical of the narrative at first. They talked it through, and the narrative was submitted.

Your lawyer may react the same way, and that conversation is worth having early. Put the draft in front of counsel months before the hearing, not days. Listen to the objections. Your attorney makes the legal decisions about what reaches the court, and a lawyer who has had time to read your narrative can argue from it.

Judge Battaglia held it up

Mario was sentenced in the Southern District of California. By his account, Judge Anthony Battaglia held up the narrative in the courtroom and said he had read it and that it had affected him.

The probation report had recommended five years. Judge Battaglia imposed 24 months.

Sheridan

Mario qualified for RDAP and completed it. He served eleven months in federal prison, followed by four months in a halfway house.

He brought his release plan to his case manager at Sheridan.

"It really helped to have a release plan before I got there. I gave the plan to my case manager at Sheridan and she was impressed. She could see I was doing the work and not just talking about it."

He studied, exercised, wrote, and stayed out of trouble. He walked in at 230 pounds and walked out at 187.

Shadow Mountain

When Mario last updated us, he was working toward a bachelor's degree and singing with the Praise and Worship Team at Shadow Mountain En Español in El Cajon. He had a role coming up in a Mexican theater production and had been cast in a musical film planned for Mexico City.

His daughter had graduated from NYU with a concentration in theater. His son was studying music at Borough of Manhattan Community College. Mario was thinking about moving to New York.

"The work I did with Justin's team is still getting me through problems today. If you do the work consciously, it will help you get back on track in every way."

Questions people ask about federal drug trafficking sentencing

What drives the guideline range in a drug case? Drug type and quantity set the starting point. Relevant conduct, criminal history, and other factors adjust it. The guidelines are advisory; the judge must also weigh the factors in 18 U.S.C. § 3553(a), including your history and characteristics.

Are there mandatory minimums? For many drug offenses, yes. Under 21 U.S.C. § 841, certain quantities carry five- or ten-year mandatory minimum sentences. Your attorney can tell you whether one applies to your charge.

What is the safety valve? A provision in 18 U.S.C. § 3553(f) that can allow a judge to sentence below a mandatory minimum when a defendant meets specific criteria, including limits on criminal history, no violence or weapon, no leadership role, and truthful disclosure to the government. Whether you qualify is a question for counsel.

What is RDAP? The Bureau of Prisons' Residential Drug Abuse Program. Some eligible people who complete it can receive a reduction in time served under BOP rules. Mario completed it and served eleven months, plus four in a halfway house.

What if my lawyer doesn't want to submit a narrative? Ask why, and listen. Your attorney decides what goes to the court. Bring the draft early enough that the two of you have time to work through it.

How many months until your hearing? Mario had nine. Book a $500 diagnostic call with me, bring the date, and we'll lay out what you can finish before it.

Thank you,

Justin Paperny