Guest Blogger: Paula Notari On Sentencing And The Crack/Powder Ratio

I've received the following report from Paula Notari ([email protected]) on a recent sentencing she handled before the Honorable Dora L. Irizarry in the United States District Court for the Eastern District of New York in United States v. Dunbar, No. 08-CR-187 (E.D.N.Y. April 21, 2010).  In sum and notwithstanding pending legislation to change the 100:1 crack/powder ratio to 20:1, some judges continue to apply a 1:1 ratio.  Here's the report:

Dunbar was charged in a crack cocaine conspiracy, and pled guilty to a five-year mandatory minimum count.  Based in part on a prior New York Youthful Offender adjudication, Judge Irizarry classified Dunbar as a Career Offender, and determined that his advisory Guidelines range of imprisonment was 188 to 235 months.  Judge Irizarry, however, sentenced Dunbar to 60 months imprisonment based on a 1:1 crack/powder ration.  More particularly, applying this ration (and rejecting the Probation Department's application of a 20:1 ratio), Judge Irizarry concluded that Dunbar's advisory Guidelines range was 30 to 37 months, but was obliged to sentence him to the minimum mandatory five-year term of imprisonment.

Treatment Of State Common Law Crimes

United States v. Walker, 595 F.3d 441 (2d Cir. 2010)

An important decision -- and one of first impression in the Second Circuit -- concerning the treatment of prior convictions as they relate to the Guidelines.  Here is how the Second Circuit described its decision:

This appeal presents a question of first impression in this circuit, namely the proper Sentencing Guidelines treatment of prior convictions for state common law crimes.  For the reasons that follow, we hold that the modified categorical approach applicable in this circuit to prior convictions for statutory offenses also applies to prior convictions for state common law crimes.  We also conclude that the district court correctly applied this approach in finding that appellant's prior South Carolina "strong arm robbery" conviction was a crime of violence under U.S.S.G. § 2K2.1(a)(2).

Failure To Abide By "Transitional Supervision" Not A Violent Felony Within The Meaning of ACCA

United States v. Mills, Docket No. 07-0308-cr (2d Cir. June 26, 2009)

Mills challenged a district court's finding that he qualified for ACCA sentencing because of his prior Connecticut escape conviction.  Specifically, Mills was released from Connecticut prison and placed in "transitional supervision," under which he was authorized to reside in a private residence.  By statute, however, he remainder under the jurisdiction of the Connecticut Commissioner of Correction, and was required to satisfy conditions similar to those required of parolees, including reporting regularly to a community enforcement officer.  Mills failed to appear as required after his initial report date.  Thus, he was charged with escape.

Under Taylor v. United States, 495 U.S. 575 (1990) courts are required to take a "categorical approach" when determining whether an offense qualifies as a "violent felony" under the ACCA.  But where a statute encompases crimes that would qualify both as violent felonies and crimes that would not -- like the Connecticut statute at issue here, which defined escape as both an affirmative escape from custody or a mere failure to return -- courts can make a limited inquire into which part of the statute the defendant was convicted of violating.  So, when the Second Circuit combined its limited inquiry into Mills' conduct (he basically walked away) and the Supreme Court's decision in Chambers v. United States, 129 S.Ct. 687 (2009) (finding that a failure to report or failure to return is not a violent felony under the ACCA) . . . well, you can imagine what happened.  Reversed and remanded for resentencing.  Even the Government conceded the mistake.

Post-Booker Criminal History/Career Offender

United States v. Hodges, No. 07-CR-706 (CPS), 2009 WL 366231 (E.D.N.Y. Feb. 12, 2009)

In a decision apparently written for purposes of justifying the non-Guidelines sentence that the Court intended to consider at sentencing, Judge Sifton draws some smart conclusions concerning the imposition of non-Guidelines sentences, particularly in the context of a defendant who qualifies as a career offender.

Hodges pled guilty to conspiracy to import an unspecified amount of heroin into the United States.  Based on his offense and conduct, the Court determined that Hodges' offense level was 29.  And based on his criminal history, Hodges qualified as a career offender -- in other words, criminal history category VI.  The Guidelines range of imprisonment indicated was therefore 151 to 188 months.

Having engaged in that Guidelines analysis, however, Judge Sifton set forth his Section 3553(a) analysis in order to impose a sentence sufficient, but not greater than necessary, as is required by Booker.  With regard to criminal history, the Court noted that the Sentencing Commission "recognized the potential harm of overstating a defendant's criminal history and thus exposing the defendant to punishment far in excess of what may be necessary to deter recidivism."  The Court acknowledged, though, that the Guidelines limit horizontal criminal history departures to one criminal history category for career offenders, even though some caselaw exists permitting additional departures under Section 5K2.0(b) of the Guidelines.  But all of that predates Booker.  As Judge Sifton found:

Clearly, the Sentencing Commission intended that the sentencing court exercise discretion in determining the appropriateness of categorizing a defendant as a career offender, an intention echoed by the Second Circuit, and expected that the sentencing couert would reduce a defendant's range of pubnishment if the career offender designation were misplaced.  In this case, defendant's label as a career offender is, in fact, misplaced.

More specifically, Judge Sifton noted that Hodges' is a drug addict who has suffered from multiple addictions throughout adolescence and much of his adult life, and that all of his criminal convictions arise from drug-related activity.  He served ten years for a drug-related offense, was released in 1996 and, for ten years, worked and supported his family without any problems with the law.  When his family situation deteriorated, however, he turned back to drugs and ultimately landed in Judge Sifton's courtroom.  with regard to that history, the Court found that fact that his prior convictions stemmed from his drug use "does not provide a sufficient basis for a departure under the Guidelines."  But, once again, Judge Sifton comes though, finding that "the Guideline prohibition against considering a defendant's drug addiction does not affect a sentencing court's authority to factor in remoteness of a defendant's convictions in determining whether he ought to be classified as a career offender."

There's a lot more in Hodges, and I encourage you to check it out (in particular, the description of Hodges background so far as it relates to several of the other Section 3553(a) factors).  But, in sum, it represents nice work by a judge as I believe the Supreme Court expected of judges after Booker.  And it represents nice work on behalf of the defense attorney, JaneAnne Murray (who also authors of New York Federal Criminal Practice Blog) in preparing what was obviously a comprehensive and persuasive sentencing package.

When 18 U.S.C. 3553(a) Conflicts With Career Offender Classification

United States v. Rivera, No. 04 CR. 959-01 (RWS), 2006 WL 3432062 (S.D.N.Y. Nov. 29, 2006)

Rivera pled guilty to one count of conspiring to distribute and possess with intent to distribute heroin.  Based on the amount of heroin involved, the court calculated Rivera's offense level to be 29.  And, based on Rivera's eight prior, non-federal criminal convictions over the prior 20 years (for offenses ranging from disorderly conduct to attempted robbery to criminal sale of a controlled substance) that resulted in a total of 10 criminal history points, the court calculated Rivera's Criminal History Category to be V.  In addition, the court was required to designate Rivera as a "career offender" pursuant to U.S.S.G. 4B1.1(a), thereby elevating his Criminal History Category to VI.  And, based on that offense level of 29 and Criminal History Category of VI, the court determined that Rivera's advisory Guidelines range was 151 to 186 months imprisonment.

In considering 18 U.S.C. 3553(a), however, the court determined that a non-Guidelines sentence of 60 months imprisonment was appropriate because "the sentence resulting from Rivera's designation as a career offender is 'greater than necessary' to achieve the purposes of 18 U.S.C. 3553(a)(2)."  Initially, the court noted the significance of the disparity of the sentences imposed for his prior offenses (none of which was longer than 39 months) and the sentence dictated by his now career offender status (12.5 years).  Furthermore, the court noted that Rivera's Guidelines range would have been 37 to 46 months but for his career offender status.  Thus and based on the "goal" of career offender classification -- to wit, "to achieve a deterrent effect and to address adequately the concerns regarding recidivism that are reflected in that classification scheme" -- the court concluded that because "Rivera's prior imprisonment has not exceeded approximately 39 months at any one time, any term of imprisonment significantly greater than this amount will achieve the deterrent effect underlying the career offender designation."  And, because a 60 month sentence was significantly greater than his prior longest 39 month sentence, the court concluded that 60 months was sufficient to accomplish the sentencing goals of 18 U.S.C. 3553(a), notwithstanding Rivera's career offender classification.

(It also bears noting that the district court also imposed the non-Guidelines sentence that it did based on the sentence imposed on Rivera's co-defendant (approximately 22 months).  Judge Sweet continues to be a strong proponent of co-defendant disparity as a basis for a non-Guidelines sentence.)