Decision
offers support for
below-guideline sentences
Adelman
imposes one-year
sentence despite five-year guideline
By
David Ziemer
david.ziemer@wislawjournal.com
April
9, 2007
A
recent sentencing decision by U.S. District Judge Lynn Adelman provides an excellent
source for defense attorneys seeking persuasive authority for imposition of below-guideline
sentences for their clients.
However,
some of the reasons given by the court for imposing its sentence should be cited
with caution or avoided altogether.
Michelle
Willis pleaded guilty to interstate transportation in aid of unlawful activity
— she drove her boyfriend and several of his confederates from Wisconsin
to Michigan so they could sell crack cocaine.
The
calculated guideline range was 121-151 months, but since the maximum sentence
was five years, 60 months was the guideline “range.”
Adelman
departed from the guidelines, and imposed a sentence of 12 months and 1 day, for
several reasons, issuing a sentencing memorandum on March 28.
“The
Girlfriend Problem”
The
court concluded that a guideline sentence was greater than necessary, because
Willis did not plan the trip, prepare the crack, engage in any actual dealing,
or profit from the venture.
More
specifically, the court found that Willis became involved in the conduct at the
insistence of her boyfriend, and had “little criminal propensity herself.”
Adelman
quoted at length from a legislative briefing on “The Girlfriend Problem,”
which stated in part, “[Women] are often subjected to the same, or in some
cases, harsher sentences than the principals in the drug trade at whom the sentencing
statutes were aimed. 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. Many of these women have histories of physical and sexual abuse
and/or untreated mental illness.”
Adelman
also noted that, while Willis refused to cooperate against her boyfriend, he cooperated
against her. He stated, “Thus, in the present case, another aspect of the
girlfriend problem was the lack of reciprocal loyalty.”
Crack
Guideline
The
court also found that the crack guidelines are greater than necessary in Willis’
case.
Adelman
acknowledged that, in U.S. v. Jointer, 457 F.3d 682, 687 (7th Cir. 2006), the
Seventh Circuit held that district courts err as matter of law when they construct
a new sentencing based on a crack-to-powder ranger other than 100:1.
However,
the judge concluded he could still impose a below-guideline sentence, remarking,
“the Jointer court did not hold that the crack guideline was sacrosanct.”
Adelman
concluded, “[W]hile district courts may not construct their own alternative
crack/powder ratio, neither are they required to impose a sentence under the current
100:1 ratio in the guidelines. Further, they can, in imposing an appropriate sentence
in the individual defendant’s case under sec. 3553(a), consider the Sentencing
Commission’s reports on the problems with the crack guideline. Finally, they
may consider whether the aggravating circumstances that prompted the adoption
of the 100:1 ration are present in the case before them.”
Looking
to the specifics of the case, Adelman noted that Willis was not actively engaged
in the trade; thus, she never made a conscious decision to traffic in crack, as
opposed to powder cocaine. Nor did she choose the amount that would be distributed.
Adelman
also noted that, in this case, there was no weapon possession, ‘[n]or was
there any evidence of specific harmful effects on the community resulting from
the offense, or of any specific victims of the crime.”
Race
Before
concluding, Adelman added, “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.”
For
these reasons, he court imposed a sentence of 12 months and one day.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
