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April 11, 2014

Comparing two federal drug offenders and the (now just amended) federal drug guidelines

To aid our discussion of drug sentencing under the existing federal sentencing guidelines (which were, as reported here, amended just yesterday) based on various offender and offense factors, let me briefly describe two notable federal drug offender:

Offender #1 was, at the time of his offense, a 21-year-old man in his second year at college and got involved in an ecstacy conspiracy through a friend.  This fellow himself used various drugs and served as a middle-man dealer of thousands of ecstacy pill for seven months, earning personally between $30,000 and $40,000.  Afraid of getting apprehended, this offender thereafter decided the drug business was not for him: he withdrew from the conspiracy on his own, graduated from college, stopped using drugs, and began lawful work in another state.  But, a few years later, when the ecstacy conspiracy was disrupted, and Offender #1 was indicted on various federal drug charges.  Offender #1 thereafter pleaded guilty and truthfully provided authorities with all the information he had about his offense and others involved in the conspiracy.

Offender #2 was, at the time of her offense, a 19-year-old woman who dropped out of high school when she got pregnant as a teenager.  Her half-sister got her involved in a methamphetamine conspiracy as a way to make money while she cared for two children and their mother.  She made at most a few thousand dollars as a drug courier, and was apprehended at a bus station by police during her third run as a courier with 2.35 kilograms of methamphetamine in her possession.  While on pre-trial/sentencing release, Offender #2 got married, had another child started, taking GED classes and got a low-paying job.  Offender #2 also pleaded guilty and truthfully provided authorities with all the information she had about her offense and others involved in the conspiracy.

Can you guess which of these two offenders faced a higher guideline sentencing range? 

Can you guess what federal sentence was ultimately imposed on these offenders?

Answers to both these questions are revealed by reading Gall v. US (in our text at pp. 415-423) and US v. Reyes, CR 12-1695 (D.N.M. March 2014) (available here).   Please review both these cases to facilitate our class discussions on Monday and Wednesday.

April 11, 2014 in Guideline sentencing systems | Permalink


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The fact situation of Offender 1 mirrors the fact situation in Gall v. US. In Gall, the trial judge gave the defendant with these circumstances 36 months of probation.

The fact situation of Offender 2 mirrors the fact situation in US v. Reyes. In Reyes, the defendant received a sentence of 30 months.

Both defendants received a downward variance from the guideline range. In Reyes, the regular guideline range was 51 to 63 months. In Gall, the bottom of the guideline range was 30 months.

Based on these facts, it seems likely that Offender 1 would receive a lower guideline sentencing range from Offender 2. This was probably because Offender 1 voluntarily withdrew, was not currently involved in the conspiracy, and did not possess any drugs at the time of his arrest. However, I did not specifically look at the Guidelines for the specific offense they were charged with.

Furthermore based on these facts, it seems likely that Offender 1 would receive a lower sentence than Offender 2. One significant reason that was discussed in Gall is that Offender 1 began rehabilitating himself before being charged with a crime. In Gall on page 421, the court said that this fact would lead a judge to believe that the defendant would likely not return to criminal behavior or be a danger to society. The fact that the defendant began rehabilitation before being charged with a crime rather than after being charged demonstrate that the defendants turn around was genuine as distinct from a transparent attempt to build a mitigation case. Therefore, even if the facts of the drug offenses committed by Offenders 1 and 2 were the same, Offender 1 would likely receive a lower guideline sentence.

Posted by: Heather S | Apr 14, 2014 1:05:13 PM

While the young, wealthy male was unquestionably involved in the ecstasy conspiracy to a much greater extent than the young, poor female was involved in the methamphetamine conspiracy, it is not at all surprising that the young woman received a lengthier sentence. Despite the fact that the young man dealt ecstasy extensively, involving himself in the exchange of thousands of pills and thousands upon thousands of dollars, he was sentenced to probation for 36 months. The young woman, on the other hand, was arrested dealing 2.35 kg of meth and was sentenced to 30 months in prison because she admitted to making two prior transports.

Despite the fact that both defendants lacked a criminal history, both exhibited exemplary behavior while awaiting trial, both received support from family, both took responsibility for their crimes by pleading guilty, and both were extremely young at the time of their offenses, only the young man’s sentencing judge found these offender characteristics persuasive. The judge in the young man’s trial also focused on the fact that he voluntarily and explicitly withdrew from the conspiracy, a withdrawal the young, poor mother of two could not afford.

Unlike the sentencing judge in the young man’s case, the sentencing judge in the young woman’s case focused on the seriousness of the offense and the fact that she made two other transports before arrest, analogizing this to a “criminal history”. The court was especially unsympathetic to the fact that the young woman was a mother, a mother who was trying to provide for her young children while caring for her mother. As noted in my previous blog post, family ties is an offender circumstance I believe should always be considered at sentencing. The young woman’s family was a strong motivating factor in committing the criminal act. This was ultimately a crime of necessity, however, the court did not consider it one. The court also refused to consider education. Unlike the young man, who had every benefit in life, the young woman was not so fortunate to finish high school, let alone attend college. Unfortunately, the young woman’s socioeconomic status and premature plunge into motherhood eliminated the few educational and earning opportunities she had. A 30-month prison sentence will undoubtedly diminish these opportunities further.

I read the sentences before completing this blog post, but I would have made similar predictions without reading the cases. This is a typical criminal “justice” scenario—money and stature speak volumes at a sentencing hearing, and more often than not the important offender characteristics of a less fortunate defendant are not thoroughly considered. It probably also didn’t hurt that the young man was able to afford a valuable attorney, while the young woman likely had less affective representation.

Posted by: Julie Keys | Apr 14, 2014 11:14:46 PM

The reasons that these two cases are in the book is to point out what seems to be an unjust outcome, whereby the woman, under sentencing guidelines would likely receive a higher punishment. I understand that in reading the cases it is easier to sympathize with the mother trying to get by than the successful college kid who received many more benefits from dealing, however this outcome does not really in my mind raise a lot of doubts about the system. The fact is that they were both involved in a conspiracy, they both committed very similar crimes and thus should receive similar criminal punishments. But here the key difference in this case makes all the difference, in the first case the guy voluntarily stopped dealing drugs, and went on to positively contribute to society. The mother was caught in the act, and the only reason she stopped was because she was caught red handed. Thus under the utilitarian theory of punishment as well as the rehabilitation theory of punishment it makes perfect sense that she should receive a higher punishment. Look I understand that she got married and got a low paying job, but I believe the reasons she did these things were at least in part due to the fact that it was pre sentencing and she wanted a lesser sentence. I feel that from a utilitarian prospective, both should be punished for their actions, but the woman should be given a larger sentence because she is a larger threat to continue to deal than the college graduate who had voluntarily given up the dealing. She did not give it up voluntarily and given her dire financial need she very likely could have fallen back into those habits without a sufficient punishment to deter her from continuing to deal in the future. Additionally under the rehabilitation theory, I think it makes sense that she needs more time for rehabilitation- As explained earlier i feel her pre sentencing(post arrest) actions were more for her benefit in sentencing than they were indications of her future behavior. So she needs more time to rehab in order to truly get the idea out of her head. The first offender however needs little to no time under the rehabilitation theory because he was 5 years removed from dealing and was positively contributing to society.

Posted by: Chris LaRocco(OSU Student) | Apr 16, 2014 11:35:25 AM

I think the difference in sentences between Reyes and Gall can be attributed to when they got caught. For Gall, he was caught well after he had stopped dealing drugs and was only caught really because one of his former conspirators talked. Gall was never apprehended with any drugs on him even though he admitted to dealing ecstasy back in college. For Reyes, she was caught with more than two kilos of meth on her person.

The prosecutor in the Reyes case was in a much stronger position to get a larger sentence imposed on Reyes because she was caught carrying so much meth. For both Reyes and Gall, they found themselves in wrong place wrong time situations - unfortunately for Reyes, she found herself in a worse place worse time situation.

Posted by: Max Reisinger | Apr 22, 2014 1:44:05 PM

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