Sentencing
Case Analysis
April
9, 2007
The
decision provides a wealth of useful persuasive authority for defense attorneys
arguing for below-guideline sentences.
Anyone
involved in the criminal justice system for any length of time inevitably comes
across a particular breed of defendant — a woman who is seems far more likely
to be in court as a domestic violence victim than as a criminal, but is charged
with abetting a boyfriend’s crimes.
State
courts have always been free to acknowledge this and show leniency to such defendants.
With the demise of mandatory guidelines, they can now receive some leniency in
federal court, too.
However,
attorneys should beware of quoting from the decision too much, as it contains
hyperbole that could irk some courts.
For
example: “Current drug laws punish not just those who sell drugs, but also
a wide range of people who help or associate with those who sell drugs”;
and “In too many cases, women are punished for the act of remaining with
a boyfriend or husband engaged in drug activity, who is typically the father of
her children.”
In
truth, however, whatever coercion may influence the decision of a woman, or anyone
else, to get involved in the criminal activity, criminal intent is still a necessary
element of any crime. By the time of sentencing, the defendant will either have
admitted criminal intent, or been found to have criminal intent beyond a reasonable
doubt, by a unanimous jury.
Simply
emphasizing the difficult position the defendant was in is likely to get more
favorable treatment from most courts than suggesting that the defendant’s
only crime is association, or not breaking up with a bad boyfriend. In fact, making
such arguments places a defendant at risk of losing credit for accepting responsibility.
The
court’s discussion of why the 100:1 crack to powder cocaine is also an excellent
source for making an argument for a below-guideline sentence in other crack cases.
A
defendant who is actively engaged in dealing crack has made a deliberate choice
to distribute crack, instead of powder cocaine. A defendant who is only a mule,
or as here, only abets the trafficking by driving the car, has made no specific
choice to transport crack instead of powder cocaine. That alone is a good reason
for a below-guideline sentence.
The
court’s imposition of a below-guideline sentence based on lack of control
over the amount distributed is also reasonable. If a defendant’s role in
a conspiracy is that of mule, she really has no control over the amount.
A
mule who transports 2 kilograms of controlled substances is no more morally culpable
than one who transports a half-kilogram. When sentencing a mule, rather than an
active participant in the drug trade, the drug quantity table in U.S.S.G 2D1.1
effectively dictates random sentences divorced from actual culpability.
In
this part of the discussion, too, however, the court might be overreaching, when
it adds, “Nor was there any evidence of specific harmful effects on the community
resulting from the offense, or of any specific victims of the crime.”
However,
this statement holds true in most controlled substance cases. Prosecutors can’t
reasonably be expected to produce individuals from the community that a drug dealer
has turned from straight-A students into degenerates. Harm to the community from
dealing crack can be, and should be, inferred.
Finally,
attorneys would be wise to avoid requesting a lower sentence based on the defendant’s
race.
The
court wrote, “Finally, defendant was African-American, as are the vast majority
of those sentenced for trafficking in crack while powder cocaine offenders are
usually white. This raised the specter of racial disparity, the most pernicious
type.”
Were this
case to be appealed, this statement would be grounds for summary vacation of the
sentence and remand for resentencing.
U.S.S.G.
5H1.10 explicitly states that race is not relevant in the determination of a sentence,
and even if it did not, the Equal Protection Clause would still require vacation
of the sentence.
In
U.S. v. Wallace, 458 F.3d 606, 608 (7th Cir. 2006), the Seventh Circuit observed,
“Freed from the mandatory nature of [the guidelines’] structure, the
court [is] free to consider the factors outlined in 18 U.S.C. § 3553(a),
including those that were specifically prohibited by the guidelines and those
that are not constitutionally prohibited such as race or sex (emphasis
added).”
It
is unfathomable that the Seventh Circuit would permit a reduction of the disparity
between African-American and white defendants generally, by approving leniency
for an individual defendant because of her race.
As
a whole though, the court’s opinion provides several good arguments for below-guideline
sentences when the defendant is a low-level actor in a crack conspiracy.
Click
here for Main Story.
David
Ziemer can be reached by email.
