AppealsConsumer Justice

What Does Unfair Sentencing Look Like? Mandatory Life For Minor Drug Offenses.

By January 19, 2016No Comments

Making a Murderer is correctly focusing public attention on the gross inequities that exist within the US criminal system. (Not the banking or corporate side…the side where courts throw human beings in cages.)

I am involved in a project that seeks reduction in sentences for certain offenders that are currently in federal prison. Under criteria announced by Obama, nonviolent offenders that meet certain criteria may petition for clemency to get out of prison.

In examining these cases, the issue of racial inequality immediately jumps out. But one thing more than ever that becomes so chilling is to see how defendants are persecuted for exercising their right to trial. As you see in this example which involved a conspiracy to distribute narcotics, the subject received a mandatory life prison sentence…based on two prior low level drug offenses….but the most disturbing factor is the enhanced punishment the defendant received….because he chose to exercise his right trial.

Think about that for a moment…and extrapolate that across the entire universe of the US prison population…and especially those spending the rest of their lives in prison….who are spending the rest of their lives in prison because they chose to exercise the right to access our justice system.

If you are sufficiently outraged about what’s happening in this country…and if you want to do something about it more than just standing there in your living room shouting:


Contact me and I’ll put you in touch with people that are part of this very important process that involves completing clemency applications for human beings here locally that…without your support…


You don’t need any criminal experience, and I’m told it should only take about 4 hours to complete each petition….and doing so will save the life of someone who is sitting in a cage.

Consider the following example:

I. is currently serving a federal sentence that would be
substantially lower if he were convicted of the same offense today.
was sentenced to a mandatory term of life imprisonment in April 1996
following his conviction for one count of conspiracy to possess with intent to distribute narcotics.
If Mr. were convicted of the same offense today, he would likely receive a sentence of 218
months or 242 months. To date, Mr. has been incarcerated for more than 242 months of
actual time. Taking into account good-conduct time awarded by the Bureau of Prisons, Mr.
has served the equivalent of a 276-month (or 23-year) sentence – three years beyond the higher term
he would likely receive if he were sentenced today.

Prosecutors filed a sentencing enhancement against establishing that he had
“two or more prior convictions for a felony drug offense” under 21 U.S.C. § 841.1 At the time of
his federal prosecution, Mr. had been convicted of four low-level, non-violent drug offenses.
The offenses, which were committed between 1979 and 1984, involved small amounts of drugs.
None of the offenses involved the use of violence, the threat of violence, or the possession of a
weapon. Despite the fact that the offenses were all relatively minor and remote in time, each
qualified as a “felony drug offense” under the federal enhancement statute.

Though Mr. ’s sentence was dictated by the statute of conviction and the § 851
enhancements filed by the government, the sentencing court calculated his sentencing range under
the then-mandatory U.S. Sentencing Guidelines. The court determined, over Mr. ’s
objection, to attribute more than three kilograms of heroin to him, which resulted in a base offense
level 34.4 The court added four offense levels based on its finding, over Mr. ’s objection, that
he acted as an organizer or leader, bringing the final offense level to 38.5 Mr. had fifteen
criminal history points based on the drug offenses he had committed more than a decade earlier,
which placed him in a criminal history category VI.6 With a final offense level 38 and criminal
history category VI, Mr. ’s guideline range (without statutory limits) was 360 months to life
imprisonment. However, because a mandatory life term was required under statute, the guideline
range was increased to life.7

On remand, the district court again imposed a mandatory life sentence, despite the appellate
court’s sentencing mandate.12 The judge cited to United States v. Cotton, 535 U.S. 625 (2002),
which the Supreme Court decided after Apprendi, to find that the evidence of drug quantity in Mr.
’s case was “overwhelming and essentially uncontroverted.”13 On appeal, the Circuit
Court of Appeals affirmed the life sentence.14 Applying a plain error standard of review, the court
determined that although an Apprendi error had been committed in Mr. ’s case, the error “did
not affect the fairness, integrity, or public reputation of [the] judicial proceedings.

If were sentenced for the same offense today, prosecutors would be unlikely
to file a notice of enhanced penalties under 21 U.S.C. § 851 based on the low-level, non-violent drug
offenses he had committed more than a decade earlier. In a memo dated August 12, 2013, the
Attorney General advised that prosecutors should “decline to file an information pursuant to 21
U.S.C. § 851 unless the defendant is involved in conduct that makes the case appropriate for severe
sanctions[,] . . . consider[ing]” six factors.16 Applying these criteria to Mr. makes evident
that the enhancement would not be applied today.

First, Mr. was not an organizer or leader of others within a criminal organization.
Second, Mr. did not engage in violence or threaten the use of violence in the instant offense.
Third, Mr. had no history of violent crime. Fourth, Mr. does not have any ties – let
alone significant ones – to large-scale drug trafficking organizations, gangs, or cartels. Fifth, the
filing of an § 851 enhancement against Mr. created gross sentencing disparities with equally
culpable co-defendants. Finally, prosecutors apparently used the sentencing enhancement against
Mr. to induce a guilty plea and then to follow through when he exercised his right to a trial.
The first four criteria, because they overlap with the criteria for clemency, are addressed in
detail elsewhere in the petition. See Sec. III, infra at 10 (leadership role); Sec. II, infra at 9 (lack of
actual or threatened violence); Sec. VI, infra at 12 (insignificant criminal history); Sec. IV, infra at
11 (lack of ties to large-scale criminal organizations).

The indictment in this case charged Mr. and seventeen others with participating in
a conspiracy to sell heroin and cocaine. Of the eighteen individuals charged in the indictment,
fifteen were convicted of the primary conspiracy offense charged in count one.18 Six of the
defendants pleaded guilty to the offense, and nine were convicted following a jury trial. The
disparity in sentences among the two groups is striking. The six defendants who pleaded guilty
received sentences ranging from 24 months to 120 months.
Defendants Who Pleaded Guilty Offense Sentence.

The nine defendants (including Mr. ) who went to trial were punished far more
severely. They received sentences ranging from 188 months to life imprisonment.19 As of
November 1, 2015, nearly all of these defendants will have completed their sentences. Only two
individuals – Mr. and his co-defendant , both of whom received mandatory life
sentences as a result of an § 851 sentencing enhancement – will remain in federal custody.

At the time of Mr. ’s trial , prosecutors routinely filed § 851 enhancements as a threat
to induce defendants to plead guilty and cooperate against others, and to punish those who
proceeded to trial.20 In Mr. ’s case, prosecutors pursued sentencing enhancements against
two of the defendants who proceeded to trial, but declined to seek enhanced penalties for any of the
defendants who agreed to plead guilty. Attorney General Holder has now directed prosecutors not
to use the enhancement statute in this manner. In a memorandum dated September 24, 2014, the
Attorney General advised prosecutors that they should not file an § 851 sentencing enhancement
“for the sole or predominant purpose of inducing a defendant to plead guilty.”
Considering the Attorney General’s recent directive, if Mr. were convicted of the
same offense today, it is unlikely that prosecutors would seek an enhanced penalty under § 851.
None of the criteria justifying the enhancement are present in Mr. ’s case. Moreover, the
enhancement would (as it did twenty years ago) lead to gross sentencing disparities and improperly
punish defendants who entered not guilty pleas. Without the § 851 enhancement, which mandated
imposition of a life sentence for Mr. , a district court would be free to impose any term

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