Archive for the ‘Drug Sentencing’ Category

Thoughts on the Holder Address: Two Cheers for the New Paradigm

Sunday, October 20th, 2013

In August, Attorney General Eric Holder delivered a widely noted address to the American Bar Association that seemed to promise significant changes in federal prosecutorial policies.  I wrote these reactions for the Federal Sentencing Reporter.

Following decades in which the U.S. Department of Justice has consistently advocated for a rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract principles of national uniformity, has willfully disregarded the devastating impact of its charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal criminal justice system, in which prosecutorial charging priorities are more specifically tailored to meet local needs, in which sentencing is more individualized to the offender and prosecutors sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney Offices experiment with new diversion programs as an alternative to conventional case-processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can achieve better public-safety results at a lesser cost than a system in which preserving the integrity of the federal sentencing guidelines is the overriding value.

Through Holder’s address, DOJ offers its most prominent and unequivocal endorsement yet of an emerging new criminal justice paradigm.   (more…)

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District Court May Deny Crack Sentence Reduction Based on False Statements, Seventh Circuit Holds

Monday, December 3rd, 2012

The U.S. Sentencing Commission wisely made its 2011 reductions to the crack sentencing guidelines retroactive, but this decision left district judges with discretion to deny sentence-reduction requests based on, among other things, a defendant’s post-sentencing misconduct.

Larry Purnell has learned the scope of this discretion the hard way.  Purnell pled guilty to crack and firearms offenses in 2007.  In his plea colloquy, Purnell admitted to the gun allegations under oath.  Based on various concessions from the government in return for his guilty plea, Purnell’s guidelines range for the crack offense was 78-97 months, and he received a sentence at the bottom of this range.  Despite the relative lenience of this treatment, Purnell later mounted collateral attacks on the gun conviction, claiming that his alleged weapon was really only a BB gun — in contradiction to his own statements at the plea colloquy.

These collateral attacks failed, but Purnell was given a fresh opportunity for a sentence reduction thanks to the Commission’s retroactive changes to the crack guidelines.   (more…)

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Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions

Monday, October 22nd, 2012

From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences.  More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm.  First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide.  Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin.  Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first.   (more…)

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New Report on Criminal-Justice Reforms in 2011: States Continue to Look for Ways to Cut Costs

Tuesday, February 7th, 2012

In a new report entitled “The State of Sentencing 2011: Developments in Policy and Practice,” Nicole Porter of The Sentencing Project summarizes the most recent set of criminal-justice reforms adopted across the United States.  Continuing a recurring theme in recent years, many of these reforms are intended to reduce incarceration numbers and corrections budgets.  Here are some highlights:


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SCOTUS to Decide Retroactivity of Fair Sentencing Act

Monday, November 28th, 2011

Congress scaled back penalties for crack cocaine in the 2010 Fair Sentencing Act, but did not indicate how the law was to be applied to defendants who committed their crimes before the Act’s effective date.  The circuits have split on this question, and the Supreme Court has now granted certiorari in a pair of Seventh Circuit cases in order to resolve the split: United States v. Fischer, 635 F.3d 336, and United States v. Hill, 417 Fed. App’x 560.  I blogged about Fischer at the time it was decided, here.  I’m hoping for a reversal of the Seventh Circuit’s approach, which needlessly denies many defendants the benefits of the FSA’s much fairer, but still plenty tough, crack sentencing regime.

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Seventh Circuit Clarifies Sentencing of Wholesale Drug Traffickers, Encourages Dose-Based Approach

Thursday, September 22nd, 2011

Wholesalers often sell drugs in relatively pure form, with the knowledge that retailers will dilute the drugs before reselling them on the street. Indeed, some powerful drugs, like the painkiller fentanyl, must be substantially diluted before they can be safely consumed. For that reason, wholesalers may end up selling much smaller quantities than retailers, at least as measured simply by weight. This presents a dilemma for sentencing, especially in the federal system, where weight drives sentences: should a wholesaler’s sentence be determined by the weight he sold, or by the weight of the diluted form of his product sold on the street?

The question has particular importance in fentanyl cases, as illustrated by the Seventh Circuit’s recent decision in United States v. Alvarado-Tizoc (No. 10-1613). In sentencing the wholesaler-defendants, the district court chose to attribute to them the full retail quantities, which were 11 to 16 times greater than the wholesale quantities.

This was improper, the Seventh Circuit held.


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DOJ Changes Its Mind, Seventh Circuit Does Not

Tuesday, August 30th, 2011

As I discussed in this post, the Seventh Circuit earlier this year rejected retroactivity for the Fair Sentencing Act of 2010, which softened the mandatory minimum penalties for crack cocaine offenses.  In the Seventh Circuit’s view, any crack offenses committed prior to August 3, 2010, when the FSA was signed into law, must still be sentenced under the harsh pre-FSA system.  Given the lag time between the commission of an offense and the conviction and sentencing of the offender, district judges in the Seventh Circuit are even now probably still imposing sentences that Congress has declared to be unfair.

The Seventh Circuit’s position followed that of the Department of Justice.  However, since the initial retroactivity ruling, DOJ has changed its position and now supports partial retroactivity.  Additionally, three other circuits have since rejected the Seventh Circuit’s position.  In light of these developments, one of the Seventh Circuit judges proposed that the initial ruling be reconsidered en banc.  Last week, however, the court announced that the initial ruling would stand.


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Seventh Circuit Vacates Below-Guidelines Sentence Based on Failure to Address Crack-Powder Disparity Argument

Saturday, July 2nd, 2011

Readers of this Blog will know that one of my pet peaves is sentencing judges who fail to address defendants’ arguments for lenience.  As I discussed in this article, the Seventh Circuit may have the best case law in the country on this issue.  You can now add to the court’s good precedent United States v. Johnson (No. 10-2503).  Convicted of trafficking in crack cocaine, Johnson argued that he should receive a below-guidelines sentence based on the unfairness of then-applicable 100:1 crack-powder disparity.  Although the judge was not obliged to accept the argument, the Seventh Circuit held that she was nonetheless required to respond in an express way to it.

What seems especially notable about Johnson is that the defendant actually did receive a below-guidelines sentence the first time around.  The government argued that this should have precluded relief.  Although the Seventh Circuit acknowledged that the “requirement that the district court specifically address the defendant’s principal, potentially meritorious sentencing arguments applies with less force where the judge received voluminous evidence and listened carefully to the defendant’s arguments and in the end imposed a short prison sentence significantly below the applicable guidelines range” (5, internal quotation marks and alterations omitted), the court sensibly declined to adopt a bright-line rule.  Just because the defendant caught a break at sentencing does not mean that he lacked a worthy argument for an even bigger break.

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Details on Crack Retroactivity

Friday, July 1st, 2011

The U.S. Sentencing Commission has now posted the unofficial “reader-friendly” version of its new retroactivity amendment.  The news is very good for defendants serving long prison terms under the pre-Fair Sentencing Act version of the crack sentencing guidelines, although it is also important to note that the Commission used this amendment as an occasion to make a general change to the retroactivity guideline that will diminish the value of retroactivity to some defendants with pending or future sentence modification requests.  Here are the highlights of the Commission’s work.

First, the big, good news for crack defendants: The Commission chose to make retroactive the changes to the drug quantity table that were promulgated in April.  The Commission also made retroactive another guidelines amendment that reduces sentences for crack defendants convicted of simple possession.  (To be technically precise, these are Parts A and C of Amendment 750.)  These were the two decisions that I (and many other witnesses) advocated most forcefully for at the June hearing on retroactivity (see my post here), and they will make a big difference for a large number of people.  According to Commission analysis, “approximately 12,000 offenders would be eligible to seek a reduced sentence and the average sentence reduction would be approximately 23 percent.”  To be sure, district judges will have discretion to turn down any sentence-modification requests they receive, but the experience with retroactivity for the 2007 crack amendment indicates that the great majority of eligible defendants will indeed be granted sentence reductions.

Second, the Commission wisely rejected the Administration’s misguided request to disqualify defendants above Criminal History III or with firearms involvement.  (See my post here.)


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Crack Amendment Made Retroactive

Thursday, June 30th, 2011

The Sentencing Commission announced today that its recent amendments to the crack sentencing guidelines will be made retroactive.  (See press release here.)  It is not yet clear to me whether the aggravating provisions are to be applied retroactively, too.  (See background here.)

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