Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

The draconian disparities in the sentencing of defendants convicted of crack cocaine offenses compared with those convicted of powder cocaine offenses is an oft-decried area of criminal sentencing. Since the 1980s, the United States Sentencing Commission's  Sentencing Guidelines used a "100-to-1" ratio, meaning that a criminal defendant  who was convicted or pled guilty to an offense involving a quantity of crack cocaine--"or cocaine base"--was sentenced as harshly as a defendant possessing a quantity of powder cocaine, or  cocaine hydrochloride, 100 times greater. These results were particularly harsh considering that exponentially smaller amounts of crack cocaine were necessary to trigger the 5 and 10 year mandatory-minimum sentences than other drugs.

On August 3, 2010, the Fair Sentencing Act of 2010 went into effect. The Act reduces the powder/crack ratio to 1:18. It eliminated the 5 year mandatory minimum sentence for simple possession of crack cocaine and raised it to 28 grams, and raised the quantity needed to trigger the 10 year mandatory minimum to 280 grams.

At least one federal case, U.S. v. Douglas (D. ME), has applied the changes retroactively to a pending case.

In the wake of the FSA, the Sentencing Commission has amended Section 2D1.1, revising the crack cocaine Guidelines downward by two offense levels, and also providing for capping the offense level of defendants with a minor role in the offense at 32.

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Canadian citizen Conrad Black, former head of Hollinger International, Inc., and once the third biggest newspaper magnate in the world, was charged in the Northern District of Illinois with diverting corporate funds for his own use and was convicted in July of 2007for "honest services" mail fraud, in violation of 18 U.S.C. s 1846, and obstruction of justice, following a jury trial. On June 24, 2010, the Supreme Court issued an opinion in Black v. U.S., case # 08-876, vacating Black's honest services convictions and remanding his case on the ground that the district court's instruction to the jury on honest services was incorrect. Black was incarcerated at the Federal Correctional Center in Coleman, Florida, and was released on bail two weeks ago after spending two years and four months in prison. He remains in the U.S. pending an appeal to return to Canada.

Lord Black's (he was made a member of the House of Lords of the United Kingdom by Queen Elizabeth II and Prime Minister Tony Blair) legal odyssey aside, he has become an observer and critic of the U.S. criminal justice system. Black has kept a diary, which may be viewed here, regarding his experience in prison. Most recently, on July 31, Black published a letter in Canada's National Post entitled "Conrad Black: My Prison Education." Black does pause to criticize his conviction in passing, citing the "fallibility of American justice." However, Black's letter provides a glimpse into life at the end of the tunnel of the federal criminal justice system. Black discusses his daily calls to his wife and his difficulties in getting updates on his application for bail in prison. He recounts the interest of his fellow inmates in the developments and media attention in his case, and rather poignantly describes the lengthy goodbyes from his friends:

"The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells."

"Most goodbyes were brief and jovial, some were emotional, and a few were quite heart-rending. Many of the 150 students that my very able fellow tutors and I had helped to graduate from high school, came by, some of them now enrolled in university by cyber-correspondence."

Black goes on to criticize harsh federal sentencing policies, especially for drug offenders, citing in particular the disparities in the crack cocaine sentencing Guidelines and their disproportionate impact on African-Americans. He also takes the public defender system to task for being subservient to the will of prosecutors, and laments the United Sates' massive prison population and prison industry in comparison with other Western democracies. Black concludes that "America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency."

CTV.ca

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            Resuming Federal Criminal Defense Blog’s pledge to keep readers informed regarding substantial decisions in the Eleventh Circuit Court of Appeals (and the Court certainly keeps us busy), we take this opportunity to catch up. Following is a summary of substantial decisions from the end of March through April 8.

“Violent Felonies” Under the Armed Career Criminal Act, 18 U.S.C. § 924: In U.S. v. Townsley, No. 08-13517, 2009 WL 929986, (11th Cir., Apr. 08, 2009) (per curiam; unpublished), the Court reversed the defendant’s conviction, holding that the district court erred in counting the defendant’s three previous convictions for carrying a concealed firearm, in violation of Fla. Stat. § 790.01(2), as “violent felonies” pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), following its decision U.S. v. Archer, 531 F.3d 1347 (11th Cir. 2008), id. at *3.

Sentence Not “Too Lenient”: The Court affirmed the defendant’s sentence for pedophilia in the published opinion U.S. v. Irey, No. 08-10997, 2009 WL 806860, (11th Cir., Mar. 30, 2009), rejecting the government’s argument that the defendant’s sentence was “too lenient” and therefore unreasonable, id. at *4. Reaffirming earlier holdings that an appellate court must not substitute its judgment for that of the sentencing court, id. at *2 (citing U.S. v. Melvin, 187 F.3d 1316, 1323 (11th Cir.1999); Williams v. U.S., 503 U.S. 193, 204, 112 S.Ct. 1112 (1992)), the opinion, authored by Chief Circuit Judge Edmondson, contains potentially useful language for the practitioner regarding the gravity of punishment and a defendant’s characteristics:

       We appreciate that some people may feel that no sentence would be too harsh for this crime. But that is not the law. And courts never should see the imprisonment in this country of a person for 17-1/2 years as light punishment: although even longer terms of imprisonment can be lawfully imposed in cases, this many years is a substantial portion of a human life-and no serious person should regard it as a trifle.

      Furthermore, when the defendant is 50 at the time the sentence is imposed, the consequences must be seen as severe. Moreover, upon Defendant’s release from imprisonment, he will not be free in the way that most Americans are free. He will be subject to rigorous conditions of supervised release by federal authorities. Given the terms of his sentence, never will Defendant be a truly free man again.

Id. at *4.

Presentence Reports: The Court in U.S. v. Martinez, No. 08-14926, 2009 WL 839093 (11th Cir., Apr. 01, 2009) (per curiam; unpublished) observed that Federal Rule of Criminal Procedure 32(i)(1)(A) requires a district court to verify at sentencing “that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report,” id. at *2 (quoting Fed.R.Crim.P. 32(i)(1)(A)), while Rule 32(i)(4)(A)(ii) requires the district court to “address the defendant personally… in order to permit the defendant to speak or present any information to mitigate the sentence,” id. (quoting Fed.R.Crim.P. 32(i)(4)(A)(ii)). The Court held that the drafters of Rule 32 “did not intend to impose a requirement that the district court personally address the defendant when inquiring whether he and his attorney have read and discussed the PSI.” Id. (citing U.S. v. Aleman, 832 F.2d 142, 144 (11th Cir. 1987)). The Court also rejected the defendant’s argument that the district court failed to properly address his statement at sentencing that he wished to “go to trial.” Id. at *4.

Government’s Breach of Plea Agreements: “‘Efforts by the Government to provide relevant factual information or to correct misstatements are not tantamount to taking a position on the sentence and will not violate [a] plea agreement.’” U.S. v. Matisas Mesa, No. 08-14134, 08-14130, 2009 WL 868012, *2 (11th Cir., Apr. 02, 2009) (quoting U.S. v. Block, 660 F.2d 1086, 1090-91 (5th Cir. Unit B Nov. 1981)). “‘A prosecutor has a duty to insure that the court has complete and accurate information concerning the defendant...’” Id. (quoting Block, at 1091). Thus, the government’s informing the sentencing court of the defendants’ inconsistent statements in Matisas Mesa, which resulted in the court’s denial of safety-valve treatment pursuant to U.S.S.G. § 5C1.2(a)(5), was held by the Court not to violate the defendants’ plea agreement in which the government agreed to recommend safety-valve treatment. Id.

Booker is a Two-Way Street: In U.S. v. Beasley, No. 08-14977, 2009 WL 905103 (11th Cir., 2009) (per curiam; unpublished), the Eleventh Circuit held that, even if the sentencing court did not use evidence of three uncharged bank robberies in which the defendant was implicated as “relevant conduct” to enhance his sentence pursuant to U.S.S.G. § 1B1.3, “§ 1B1.3 did not limit the court's discretion to consider the robberies under [18 U.S.C.] § 3661 and [18 U.S.C. §] 3553(a),” id. at *2, in departing upward from the Guidelines range, id. at *2.

Hearsay (Not): In U.S. v. Jiminez, No. 08-14192, 2009 WL 921437, (11th Cir., Apr. 07, 2009), the Eleventh Circuit affirmed the defendant’s conviction on various charges concerning manufacture and distribution of marijuana plants, holding in the process that the district court’s admission of testimony by a police detective regarding a statement by a non-testifying witness that the defendant was involved in a marijuana growing operation was not inadmissible hearsay, finding that the statement was not hearsay since it was not admitted to prove the truth of the matter asserted, but only the fact that it was made, pursuant to Federal Rule of Evidence 801(c), id. at *5.

 “National Standard of Care” and “Red Flags” in Prescription Prosecution: When a doctor is prosecuted under the Controlled Substances Act (“CSA”), 21 U.S.C. § 841 for prescribing drugs to patients, he or she must show that they acted in good faith and for a legitimate medical purpose. See U.S. v. Johnston, No. 08-14594, 2009 WL 806740, *4 (11th Cir., Mar. 30, 2009) (per curiam; unpublished) (citing U.S. v. Merrill, 513 F.3d 1293, 1301-02 (11th Cir. 2008)). In Johnston, the district court instructed the jury that it should apply a “national” standard of care in determining whether there was a legitimate medical purpose for the defendant physician’s prescriptions. Id.  The defendant argued on appeal that Florida’s standard of care should govern. Id. The Eleventh Circuit held that the defendant had invited the error by previously arguing that jury must find that she acted “outside the course/scope of professional practice, not in accordance with a standard of medical practice generally recognized and acted in the U.S.” id., in order to convict her, id. (Emphasis in original). The Court affirmed the defendant’s conviction, also holding that admission of testimony from witnesses for the government regarding “red flags” for detecting drug abuse in patients was not plain error and was admissible pursuant to Fed.R.Evid. (“Rule”) 702. Id. at *6.

Fear, Loathing and Interstate Extortion: A feud between German immigrants resulted in charges of conspiracy and extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, and the Travel Act, 18 U.S.C. § 1952, in U.S. v. Bornscheuer, NO. 07-10009, 06-14607, 2009 WL 814587 (11th Cir., Mar. 31, 2009). The Eleventh Circuit affirmed the defendants’ convictions, simultaneously reaffirming its holding in U.S. v. Grassi, 783 F.2d 1572 (11th Cir. 1986) that a component of extortion for the purposes of the Hobbs Act is the victim’s fearful state of mind, and that “fear” is “‘a state of anxious concern, alarm or apprehension of harm and it includes fear of economic loss as well as fear of physical violence.’” Id. at *6 (quoting Grassi, at 1577).

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            As part of a new, ongoing weekly feature, following are summaries of relevant criminal decisions by the Eleventh Circuit Court of Appeals for the previous week. Only substantive opinions by the Court discussing criminal law will be covered—summary opinions and orders will not be listed.

In U.S. v. Watley, NO. 08-11768, 2009 WL 635185 (11th Cir., Mar. 13, 2009), a prosecution of the defendant for drug and firearm offenses, the Court affirmed the trial court’s admission of evidence of prior controlled drug buys not charged in the indictment, relying on the rule that “‘[e]vidence of criminal activity other than the charged offense is not extrinsic under [Federal Rule of Evidence] 404(b) if it is... necessary to complete the story of the crime, or [ ] inextricably intertwined with the evidence regarding the charged offense,’” id. at *2 (quoting U.S. v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004)). The Court also held that the district court did not abuse its discretion in refusing to compel disclosure of the identity of a confidential informant to the defense, finding that the CI was not involved in the events underlying the charges against the defendant, and that the CI’s proposed testimony would have harmed, rather than helped, the defendant. Id. at *3.

The Court in U.S. v. Strachan, No. 08-13949, 2009 WL 641225 (11th Cir., Mar. 13, 2009), held that it was not required to dismiss the defendant’s appeal of his sentence for various drug and firearms offenses despite a sentence appeal waiver in the defendant’s plea agreement where the record contained no transcript of the plea hearing and did not indicate that the defendant “clearly understood the consequences of his sentence appeal waiver,” id. at * 2. The Court proceeded to find that the district court did not discuss any of the sentencing factors under 18 U.S.C. § 3553(a) at sentencing and vacated the case and remanded for resentencing, observing that a sentencing court “‘need not make detailed findings with respect to each § 3553(a) factor, but the record must make it clear that it considered them.’” Id. at *2 (quoting U.S. v. Williams, No. 08-11361, at 5-7 (11th Cir. Feb. 9, 2009); U.S. v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997)).

Gillen Withers & Lake LLC have several of the most aggressive and successful criminal defense attorneys in Georgia and the Southeast, with national reputations, focusing on  federal and state white collar and corporate criminal litigation. Call Thomas Withers in Savannah (912) 447-8400 or Craig Gillen in Atlanta (404) 842-9700.

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A single gram of "cocaine base," or "crack" cocaine, is equivalent to 50 to 100 grams of cocaine for sentencing purposes, according to U.S. Sentencing Guideline §2D1.1. "Crack" cocaine is typically made by boiling cocaine in water with baking soda.

The Eleventh Circuit held late last week that there was insufficient evidence to uphold Ramon Singleton's sentence for possession with intent to distribute more than 50 grams of cocaine base. See  U.S. v. Singleton, No. 07-13329, 2008 WL 4595272, *2 (11th Cir., October 16, 2008). The reason? An insufficient amount of baking soda. Law enforcement had seized 937.30 net grams of powder cocaine from Singleton's motel room. Id. The Court observed that Singleton would have needed at least four 8 oz. boxes of Arm & Hammer to convert this quantity of powder cocaine into cocaine base. Id. It further noted, however, that "law enforcement officials only recovered one eight-ounce box of baking soda in the motel room, which was clearly not sufficient to convert all of the seized powder into crack cocaine." Id. The Court held that the district court's drug determination was not supported by the evidence, and that the error was not harmless. Id. In so doing, it reaffirmed that "'[a]lthough sentencing may be based on fair, accurate, and conservative estimates of the quantity of drugs attributable to a defendant, sentencing cannot be based on calculations of drug quantities that are merely speculative.'” Id. (quoting U.S. v. Zapata, 139 F.3d 1355, 1359 (11th Cir.1998)).

Gillen Withers & Lake LLC are white collar and corporate criminal defense attorneys with an outstanding reputation and track record, handling cases throughout Georgia and the nation. Call our Atlanta, Georgia, office at (404) 842-9700 or our Savannah, Georgia, office at (912) 447-8400.

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Effective March 3, 2008, the crack v. powder sentencing disparity was reduced from the previously ridiculous 100 to 1 and it is predicted that as many as 20,000 federal inmates will ultimately be affected.

Senator Biden (D-Delaware), Chairman of the Senate Judiciaty Committee, has introduced The Drug Sentencing Reform and Kingpin Trafficking Act of 2007, which would impose a 1 to 1 ratio for crack/powder cocaine. The Committee held hearings last month and even Senator Sessions of Alabama came out in favor of the 20 to 1 ratio.  These promising developments herald the end of one of the sentencing guidelines greatest injustices which have wrought harm to our system of justice for decades.

Professor Berman here has done great good work in attacking this injustice. A copy of the Sentencing Commission's Order form for district court's to use is available here.

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