We Know Who Runs The Courtroom (And It’s Not the Judge) – Update for December 30, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DOING A DAY FOR DAY

Erika Day had a night job selling methamphetamine. Unfortunately for her, one of her accessories was a handgun. Carrying guns can be dangerous for drug dealers, not so much because they shoot people as because they cause self-inflicted legal wounds: possessing a Glock during a drug deal carries a mandatory additional sentence of at least five years under 18 USC § 924(c), more if you “brandish” it and even more if you fire it.

Erika was charged with possession with intent to distribute meth under 21 USC § 841 and an 18 U.S.C. § 924(c)  offense. The § 841 offense carried a minimum sentence of five years, and the § 924(c) gun offense added another five. At that point, Erika made the prudent choice to cooperate with the government.

Under 18 USC § 3553(e), the government can reward a cooperator with a motion to the court to depart – that, ignore – from a statutorily-mandated sentence for substantial assistance.  In Erika’s case, the U.S. Attorney moved to depart below the statutory minimum for the meth offense but not for the gun offense. The district court granted the motion but sentenced Erika below the statutory minimum for both offenses, time served on the § 841 count and a single day on the Count 2 gun charge. The Government, arguing that she had to get at least five years on the § 841 count, appealed.

Last week, the 11^th Circuit agreed with the U.S. Attorney. The Circuit said that § 3553(e) is clear: such a motion is count-specific. A motion that authorizes departure below the statutory minimum for one count does not permit a district court to go below the mandatory minimum on another count unless the government’s motion expressly extends to that separate count.

“Subsection (e) uses the singular when allowing a district court to depart below “a level established by statute as a minimum sentence,” the 11^th wrote. “Although district courts often pronounce multiple sentences as an aggregate for administrative purposes, each offense still carries a separate sentence. Because subsection (e) applies to ‘a minimum sentence,’ not the aggregate of multiple sentences, a motion for departure on one sentence does not apply to other sentences.”

Because the government did not move to depart below the statutory minimum for count two, the Circuit held, the district court lacked the authority to do so independently.

One judge on the panel, Embry Kidd, concurred in an opinion that explained a lot. On pretrial release, Erika completed an arduous drug rehabilitation and excelled so in the program that the provider hired her as a mentor. She maintained two jobs, paid off her fines, obtained a driver’s license for the first time in twelve years, purchased a vehicle, secured stable housing, and repaired her relationship with her daughters.

“It is not often that a district court has the benefit of seeing what a defendant would do if given a second chance,” Judge Kidd wrote. “Normally, the court just hopes for the best. But here, due to Day’s cooperation with the government, the district court was able to observe Day’s rehabilitative actions over the course of two years… But that does not matter. By statute, only one person’s opinion mattered that day… Under the sentencing regime that Congress has established for consideration of assistance to the government… the United States Attorney had all the cards. Only she could allow the district court to impose the sentence that the court considered to be the most just. But she refused, and today’s opinion affirms that she had the power to do so.”

United States v. Day, Case No. 24-13312, 2025 U.S.App. LEXIS 33634 (11th Cir. Dec 23, 2025)

~ Thomas L. Root