Opinion
No. 04-40007-01-SAC.
May 5, 2005
SENTENCING FINDINGS
On January 11, 2005, the defendant pleaded guilty to a single count information that charged him with possession with intent to distribute cocaine base. Pursuant to an agreed factual basis that appeared in the written plea agreement, the defendant admitted officers found 111.49 grams of cocaine base in the car he was operating on September 20, 2003. Relevant to sentencing, the plea agreement provided in part that the government would recommend a three-level reduction for acceptance of responsibility and a sentence at the low end of the guideline sentencing range; that the government would not seek an upward departure from the guideline range and the defendant would not seek a downward departure; and that the government would not file an information pursuant to 21 U.S.C. § 851 and would not oppose the defendant's admittance into a drug treatment program while incarcerated.
The presentence report ("PSR") prepared in this case recommends a base offense level of 32 using either the amount of cocaine base (more than 50 grams but less than 150 grams, U.S.S.G. § 2D1.1(c)(4)) or the career offender provision, U.S.S.G. § 4B1.1(b)(C), and a three-level reduction for acceptance of responsibility for a total offense level of 29. The PSR recommends a criminal history category of six using either the score from the actual convictions (14 criminal history points) or the career offender provision, U.S.S.G. § 4B1.1(b). The applicable guideline sentencing range is 151 to 188 months for a total offense level of 29 and a criminal history category of six. The addendum to the PSR identifies three unresolved objections made by the defendant.
OBJECTION ONE: The defendant objects to calculating his base offense level on the amount of cocaine base rather than powder cocaine. The defendant objects that the 100:1 quantity ratio between powder cocaine and cocaine base embodied in the sentencing guidelines results in a substantial unwarranted disparity in sentences. The defendant points to conclusions and recommendations from the United States Sentencing Commission for reducing this disparity and to post- Booker decisions which have considered this disparity in tailoring a sentence under 18 U.S.C. § 3553(a). In his sentencing memorandum, the defendant objects for the first time to considering as relevant conduct the additional cocaine base found during a search of his residence in December of 2003.
Ruling: The court determines that a ruling on this objection is unnecessary, because these disputed matters will not affect sentencing. Regardless of the court's consideration and ruling upon the defendant's argument against the unjustifiably harsh sentences for cocaine base and relevant conduct findings, the defendant's base offense level would remain 32 by reason of his career offender status. Thus, a ruling is unnecessary pursuant to Fed.R.Crim.P. 32(i)(3)(B). OBJECTION TWO: The defendant objects to using the career offender guidelines under U.S.S.G. § 4B1.1(b)(C), not because he fails to meet the requirements for a career offender status defined in U.S.S.G. § 4B1.1(a) but because counting prior drug trafficking convictions "has a disparate impact on minority defendants that is not justified by recidivism rates." (Dk. 57, p. 4). Citing different findings and conclusions in a United States Sentencing Commission's report, the defendant argues that the career offender provision overstates the likelihood of recidivism for drug trafficking offenders and particular African-Americans.
The Tenth Circuit "has specifically and clearly held that the disparity in the Sentencing Guidelines between cocaine base and powder cocaine is not a valid basis for downward departure." United States v. Lane, 208 F.3d 227, 2000 WL 286244 at *1 (10th Cir. 2000) (citing United States v. Maples, 95 F.3d 35, 37-38 (10th Cir. 1996) ("[T]he expansive issue of appropriate sentencing levels for crack offenses is not the sort of discrete, individual and case-specific mitigating circumstance justifying downward departure. . . ."), cert. denied, 519 U.S. 1070 (1997); see also United States v. McCloud, 127 F.3d 1284, 1291 (10th Cir. 1997) (citing Maples). The Tenth Circuit's holding has not been influenced by the Commission's recommendation to eliminate this disparity. Id. (citing Maples, 95 F.3d at 37 ("Congress has now rejected the Commission's recommendation, voting instead to preserve the higher sentences for crack-related crimes. Accordingly, . . . the district court lacked power to depart and the sentencing disparities of the current scheme have not only been considered by Congress and the President, but also retained.")). Even under this post- Booker system of sentencing, courts must still consult the guidelines, the departure provisions, and the case law interpreting and applying them. See United States v. Sierra-Castillo, ___ F.3d ___, No. 03-2123, slip op. at p. 11 n. 5 (10th Cir. May 3, 2005). This is not to say that a sentencing court may not consider this disparity in weighing the guideline sentencing factor and in evaluating the seriousness of the offense. See Simon v. United States, 361 F. Supp. 2d 35, 2005 WL 711916 (E.D.N.Y. Mar. 17, 2005); United States v. Smith, 359 F. Supp. 2d 771 (E.D. Wis. 2005).
At the change of plea hearing, the defendant admitted that 111.49 grams of cocaine base was recovered from his car. This amount of cocaine base alone places the defendant at a base offense level of 32 (more than 50 grams but less than 150 grams, U.S.S.G. § 2D1.1(c)(4)). Thus, the additional relevant conduct does not change the base offense level calculation as determined by the amount of cocaine base.
Ruling: The defendant's criminal history summarized in the PSR disputes the defendant's claim that the career offender provision here overstates the likelihood of his recidivism. At the age of 29, the defendant's criminal history score is already 14. Beginning at age 19, he has served nearly four years in state penal institutions in four different cases. He has three prior convictions for drug offenses and an aggravated battery conviction. He has five convictions for driving or attempted driving with a suspended license, two convictions for driving while a habitual violator, and two convictions for obstructing with official duty. Before turning even 23 years old, the defendant had committed all of these offenses. His sentence on the last conviction expired December 18, 2001, and he was arrested less than two years later for the offense of conviction here. Less than three months after this arrest, officers searched his residence finding additional cocaine base and marijuana. Whatever policy arguments the defendant may have with the career offender provisions and their general application to African-American offenders like himself, the defendant's criminal history is undisputably characteristic of recidivism and shows a strong likelihood of relapsing into criminal activities. As evidenced by the nature, number, and frequency of the defendant's criminal activity, he poses a clear danger to society and deserves the lengthier terms of incarceration provided in the career offender provisions. The application of U.S.S.G. § 4B1.1 to the defendant is consistent with the letter and spirit of that guideline provision. The defendant's objection is overruled.
OBJECTION THREE: The defendant objects that he was never convicted of theft as described at ¶ 34 of the PSR.
Ruling: No ruling on this objection is necessary, as this prior conviction will not affect sentencing. The defendant's criminal history category is set by the career offender provisions, and the single point scored for that conviction would not change the total of four points counted pursuant to U.S.S.G. § 4A1.1(c).
IT IS THEREFORE ORDERED that the defendant's unresolved objections to the PSR are denied.