§738 Departures: Drug Cases
8th Circuit approves large upward variance where defendant’s heroin distribution resulted in death. (721)(738)(741) Defendant distributed heroin to his friend Stenger, who died from acute heroin intoxication. Stenger had been taking Vivitrol, a drug to assist with heroin addiction that blocks opiate absorption. Vivitrol makes heroin users susceptible to overdose because they have an incentive to consume more heroin than usual to overcome the Vivitrol blockade. Defendant’s guideline range was 6-12 months, but the district court departed upward to 130 months under § 5K2.1 (authorizing departure where defendant’s conduct resulted in death). The Eighth Circuit upheld the sentence. The district court explained that defendant and Stenger were not strangers, that defendant knew Stenger was taking Vivitrol. Thus, defendant knew Stenger “was physically vulnerable to the possibility of an overdose because of the Vivitrol and possibly because of his asthmatic condition.” The panel rejected defendant’s claims that the court gave too much weight to various factors, finding that 130 months was within the range of reasonableness for a drug offense resulting in death. If defendant had pleaded guilty to an offense that had as an element that his distribution of heroin resulted in death, then he would have faced a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(C). U.S. v. Bollinger, 893 F.3d 1123 (8th Cir. 2018).
1st Circuit says court need not depart downward to account for crack/powder sentencing disparity. (738) Defendant was convicted of crack charges. He requested a below-guideline sentence to mitigate the powder cocaine/crack cocaine sentencing disparity under the Guidelines. In refusing this request, the sentencing judge stated that crack is “more devious,” “more addictive,” and “more devastating to society than powder cocaine,” and that therefore crack distribution offenses are at “a higher culpability level.” Defendant claimed that in Kimbrough v. U.S., 552 U.S. 85 (2007), the Supreme Court recognized these facts as disproved, and that the Justice Department supports legislation to eliminate the disparity between crack and powder cocaine. The First Circuit found no error in the court’s failure to depart downward. Neither Kimbrough nor the Sentencing Commission has declared that no sentencing disparity can be justified, and Congress and the Commission continue to believe some disparity is justified by differences in the two drugs’ addictiveness, propensity to involve weapons, and association with higher levels of crime. U.S. v. Laurent, 607 F.3d 895 (1st Cir. 2010).
1st Circuit rejects sentencing entrapment claim. (738) Defendant requested a downward departure based on the government’s sentencing entrapment, asserting that the government “arranged” to have him sell drugs on eight separate occasions rather than simply arresting him after the first sale. The First Circuit disagreed, since defendant failed to introduce sufficient evidence to demonstrate that the government improperly extended the duration of its investigation in an effort to extend his sentence. While the government could have arrested defendant after the first sale, it did not appear that its failure to do so was motivated by malice or bad faith. Since defendant used multiple sources of drugs, the government’s extension of the investigation allowed it to identify more dealers. U.S. v. Capelton, 350 F.3d 231 (1st Cir. 2003).
1st Circuit rejects sentencing manipulation claim. (738) Defendant argued that the court should have reduced the amount of cocaine attributed to him because of the intensive involvement of confidential informants Hernandez and Diaz in the conspiracy. This was a type of improper sentencing manipulation argument, for which defendant had the burden. However, “garden-variety manipulations claims are largely a waste of time.” It is insufficient to say that the idea of the conspiracy originated with undercover agents, or that the crime exceeded in degree or kind what the defendant had done before. Instead, the defendant must show that elements like these were so extensive that “the government conduct must be viewed as extraordinary misconduct.” The First Circuit found that defendant fell short of this standard. He offered nothing more than conclusory allegations. Further, Hernandez testified that the Colombians, not he or Diaz, set the amount involved in the cocaine importation. Defendant also bragged to Diaz that he and his team had been drug trafficking for years. Thus, it was unlikely that government agents encouraged defendant or his co-conspirators to engage in conduct in which they would otherwise have been unwilling to participate. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).
1st Circuit rejects sentencing entrapment claim. (738) Defendant argued that the government engaged in sentencing manipulation by enticing him to sell crack cocaine rather than powder cocaine to a government informant. He also claimed that the DEA strung out the investigation in order to have a larger amount of drugs to attribute to him. The First Circuit rejected the sentencing entrapment claim, finding no evidence of government misconduct. A co-conspirator testified that he and defendant had sold both crack and powder cocaine since January 1996, and that defendant regularly received large quantities of crack. In his discussions with the informants, defendant had a ready facility with the street prices of both crack and powder cocaine and quoted kilogram prices for both. The government, when investigating the business of a drug dealer who by reputation sells both crack and powder cocaine, is under no obligation to buy only that product or quantity which would produce the smallest sentence for the defendant. As for the duration of the investigation, the government claimed it was trying to trace other individuals involved in the drug network, to establish that defendant was a dealer in both substances, and to remove drugs from the streets — all permissible purposes. U.S. v. Terry, 240 F.3d 65 (1st Cir. 2001).
1st Circuit upholds cross-reference to murder guideline for drug defendant. (738) Section 2D1.1(d)(1) directs a court to apply § 2A1.1, the first-degree murder guideline, “[i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.” Defendant attacked the lack of proportionality between the sentence he “might have received” based on drug quantity, and the life sentence he received under § 2D1.1(d)(1). Life sentence enhancements constituting “the tail which wags the dog of the substantive offense” may raise due process concerns. See U.S. v. Lombard, 72 F.3d 170 (1st Cir. 1995). However, because defendant did not contest the district court’s finding that he was responsible for murders, the First Circuit found his complaint that the murders were not proven beyond a reasonable doubt to be without merit. The district court did not err in failing to depart downward to remedy the “disproportion” between the quantity-based sentence he would have received under § 2D1.1(a) and the enhanced sentence he received under § 2D1.1(d)(1). Defendant never requested such a departure, and the court did not address the subject. U.S. v. Padro Burgos, 239 F.3d 72 (1st Cir. 2001).
1st Circuit upholds refusal to resolve double counting issue where it did not affect sentence. (738) The PSR attributed to defendant 62 grams of powder cocaine and 770 grams of crack cocaine. Defendant objected at sentencing that some of the powder cocaine had been used to make crack. However, counsel conceded that the calculation would not affect the guideline range, explaining that defendant wanted to preserve the objection in case Congress later reduced the penalties for crack and made the reduced penalties retroactive. The district court declined to resolve the issue on the ground that it had no effect on defendant’s sentence. Defendant argued for the first time on appeal that the double counting issue might have affected her sentence because if the district court had found a lesser quantity of drugs, it might have deemed this a mitigating circumstance not adequately considered by the guidelines and thus warranting a downward departure. The First Circuit termed the argument “silly”; the guidelines specifically prescribe offense levels based on quantity, and defendant’s suggested departure could hardly be a matter not adequately considered by the Sentencing Commissions. U.S. v. Cruz, 213 F.3d 1 (1st Cir. 2000).
1st Circuit holds that government did not engage in sentencing manipulation. (738) Undercover agents agreed to sell defendant cocaine for $15,000 per kilogram, which was under the then-market price of $24,000. The agents said they had five kilos available. Defendant agreed to buy two kilograms of cocaine in cash and receive two kilograms on credit. At the arrest, defendant’s partner was in possession of $30,000. Defendant argued that the government’s “bargain basement pricing and generous consignment policy” constituted sentencing factor manipulation, and thus his sentence should be based only on the two kilograms that he originally intended to purchase. The First Circuit found no sentencing manipulation. This case involved a single transaction, not a string of crimes prolonged by the government; the price was within the market range; defendant by his own admission was a well-established drug dealer who had previously handled substantial quantities. Further, defendant and his partner expressed their intent to regularly buy five kilograms from the agent because they had the customer base. There was no evidence that the credit arrangement was devised to increase defendant’s sentence. U.S. v. Woods, 210 F.3d 70 (1st Cir. 2000).
1st Circuit upholds refusal to depart based on government’s use of reverse sting. (738) Defendant was arrested in a reverse sting operation, where the government, rather than the target, provides the controlled substance. Defendant argued that the government’s reverse sting was so unusual or so clearly devised and controlled by the government as to constitute a mitigating factor that merited a downward departure. The First Circuit held that it lacked jurisdiction to review the district court’s discretionary decision not to depart based on the government’s use of a reverse sting. The district court correctly understood the legal standards governing departures. The court found that there were no features of defendant’s case that distinguished it from the heartland of cases contemplated by the guidelines. Sting operations are commonly used, and the Sentencing Commission knew about them when it promulgated the guidelines. U.S. v. Portela, 167 F.3d 687 (1st Cir. 1999).
1st Circuit rejects departure based on Commission’s proposal to eliminate crack disparity. (738) Defendant was sentenced for crack cocaine. He argued that the district court erred in not departing downward to the offense level for powder cocaine, noting that the Sentencing Commission recommended eliminating the sentencing disparity. The district court actually agreed with his claim that the disparity was unfair and that in the right circumstances a departure based on the Commission’s findings would be justified. However, the judge noted that were she to depart downward, defendant’s extensive criminal record would then require a substantial compensatory upward departure. Accordingly, the judge refused to depart. The First Circuit rejected defendant’s claim that the Commission’s recent proposal to eliminate the crack sentencing disparity was a ground for departure. The district court, although it purported to exercise its discretion not to depart, actually had no discretion to depart on this basis. U.S. v. Andrade, 94 F.3d 9 (1st Cir. 1996).
1st Circuit says sentence disparity between cocaine and crack is not grounds for departure. (738) Defendant challenged the district court’s failure to grant a downward departure under § 5K2.0. Defendant claimed the judge believed he lacked the legal authority to depart; the government contended the judge exercised his discretion. The First Circuit did not settle this argument because the circumstances relied on by defendant—the Sentencing Commission’s recommendation to Congress to change the sentence disparity between cocaine and crack—was not a proper basis for departure. The Sentencing Commission’s recommendation to Congress is not the kind of circumstance that the provision covers. Moreover, Congress rejected the Commission’s recommendation. U.S. v. Sanchez, 81 F.3d 9 (1st Cir. 1996).
1st Circuit rejects downward departure based on 100-to-1 crack cocaine ratio. (738) Defendant argued that the district court had authority to depart downward because the Sentencing Commission adopted Congress’s 100-to-1 ratio of crack to powder cocaine without fully investigating the circumstances underlying the ratio. The First Circuit held that this was not a proper ground for departure. In light of Congress’s recent decision to retain the disparate penalties for crack and powder cocaine, the Sentencing Commission cannot be said to have failed in its statutory duty to investigate the distinction between the two. Moreover, even if the two substances are synonymous in the scientific and medical communities, crack in reality differs from cocaine powder because of its cheaper unit price which could radically increase drug use absent stiffer penalties for crack distributors. U.S. v. Camilo, 71 F.3d 984 (1st Cir. 1995).
1st Circuit says role increase and departure for drug purity are not double counting. (738) Defendant and his co-defendant arranged the sale of very pure heroin (87-96% pure) to a DEA confidential informant. He complained that a leadership enhancement and an upward departure based on the heroin’s high purity was double counting, because Note 9 to § 2D1.1 explains that a drug’s high purity is probative of the defendant’s role in the chain of distribution. The First Circuit found no double counting, since the leadership enhancement was not based on an inference from the heroin purity. Defendant used “mules” and “lackeys” to make deliveries for him and exercised leadership in some of these deliveries. Furthermore, note 9 does not say that drug purity and a defendant’s leadership role are mutually exclusive sentencing considerations. U.S. v. Rodriguez, 63 F.3d 1159 (1st Cir. 1995).
1st Circuit rejects sentencing manipulation claim where further deals allowed DEA to infiltrate conspiracy. (738) Defendant argued that some portion of the drugs he dealt should have been excluded from the quantity calculation because government agents coerced him to participate in additional deals in order to increase his sentence. However, to prevail on a sentencing manipulation claim, the defendant must establish “extraordinary misconduct by the government.” U.S. v. Montoya, 62 F.3d 1 (1st Cir. 1995). The district court rejected defendant’s sentencing manipulations claim because the DEA’s continued pursuit of defendant permitted the DEA to further infiltrate the conspiracy. The First Circuit found this analysis reasonable. The government efforts resulted in the arrest of Monroe, a co-conspirator.
1st Circuit rejects harsher crack penalties, federal prosecution, and status as young black man as grounds for downward departure. (738) Defendant argued that the district court should have departed because the harsher crack cocaine penalties have a racially disparate impact. He also claimed that a departure was warranted because of the discriminatory transfer of his case to federal court, alleged evidentiary errors, prosecutorial misconduct during his trial, and his status as an uneducated young black man. Since it was uncertain from the record whether the district court was aware of its authority to depart, the 1st Circuit addressed the merits of defendant’s claims, and rejected them. There was no discriminatory prosecution, evidentiary errors or prosecutorial misconduct, so these allegations did not merit a departure. All of the other factors cited by defendant were either discouraged or forbidden categories. Thus, the court’s refusal to depart was correct. U.S. v. Lewis, 40 F.3d 1325 (1st Cir. 1994).
1st Circuit upholds departure based on drug purity and amount, and use of children in offense. (738) Defendant, accompanied by his two young children, delivered 11 kilograms of 88 percent pure cocaine to an undercover agent. After he was arrested, he told the agent he brought the children to lessen the likelihood of being stopped on his drive. The 1st Circuit affirmed a two point upward departure based on (a) defendant’s prominent role in cocaine dealing, as evidenced by the quantity and purity of the drugs involved, and (b) the involvement of defendant’s minor children. Note 9 to section 2D1.1 specifically states that unusually high purity may warrant an upward departure, since it may be probative of a defendant’s position in the chain of distribution. Purity is relevant without regard to drug quantity, but it is particularly relevant where the quantities involved are small. The involvement of the children was also a proper ground for departure, given the relationship between drugs and violence. U.S. v. Legarda, 17 F.3d 496 (1st Cir. 1994).
1st Circuit finds error in denying power to depart for family situation. (738) Defendant had never committed a crime before transporting one pound of cocaine in an effort to obtain money to buy Christmas presents for her three children, ages three, five, and six. She sought a downward departure based on these facts, along with her children’s need for her care, the absence of financial aid from her ex-husband to support the children, and her lack of contact with other family members who might be able to rear her children. The 1st Circuit disagreed with the district court’s conclusion that it lacked power to depart. The district court could have concluded that this case was sufficiently unusual to depart. U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993).
1st Circuit affirms denial of downward departure based upon diminished capacity. (738) Defendant argued that the district court incorrectly believed that it lacked authority to depart downward under guideline § 5K2.13 based upon defendant’s diminished mental capacity. The 1st Circuit rejected this argument, finding the judge’s comments reflected that the judge did not depart downward because there was no evidence that defendant’s mental condition played a causative role in the offense, as required by the guideline. The fact that defendant might be victimized in prison due to his diminished capacity was not an independent ground for departure. Defendant’s mental condition also did not provide a ground for departure under guideline § 5K2.0. A person with borderline intelligence or mild retardation who is easily persuaded to follow others does not present a mitigating circumstance not adequately considered by the sentencing commission in formulating the guidelines. “Borderline intelligence is not so extraordinary as to overcome the clear mandate of § 5H1.3 that mental conditions ‘are not ordinarily relevant.’” U.S. v. Lauzon, 938 F.2d 326 (1st Cir. 1991).
1st Circuit affirms upward departure based upon quantity of drugs in conduct underlying telephone count convictions. (738) Although initially charged with various drug charges, defendants pled guilty to the unlawful use of a communications facility. At the time defendants were sentenced, this offense carried a base offense level of 12, under § 2D1.6, regardless of the quantity of drugs in the underlying crime. The district court departed upward based upon the quantity of drugs involved in the underlying conduct. The 1st Circuit affirmed, finding the quantity of drugs involved in drug transactions underlying a telephone count to be a proper ground for departure. Guideline § 2D1.6 was amended effective November 1990 to provide that the base offense level for the telephone count is the offense level applicable to the underlying offense. The commentary notes that under the previous guideline, departure was often warranted to take into account the scale of the underlying offense. Moreover, other circuits have also upheld this as a ground for departure. U.S. v. Citro, 938 F.2d 1431 (1st Cir. 1991).
1st Circuit rejects downward departure based upon government misconduct and failure to establish amount of cocaine. (738) The district court departed downward for several defendants because it found that the government failed to prove that the cocaine it seized was the same cocaine that the defendants conspired to import. The court determined that there was insufficient evidence of the actual amount of cocaine involved. In addition, the court referred to the government’s “false testimony” before the grand jury as reason for refusing to rely upon the quantities of cocaine advanced by the government. The 1st Circuit rejected both of these as grounds for a downward departure. A departure is not warranted in response to conduct of the government or an independent third party. Moreover, the district court should have determined the reliability of the evidence as to the quantity of cocaine involved prior to setting defendant’s offense levels. U.S. v. Valencia-Lucena, 925 F.2d 506 (1st Cir. 1991).
2nd Circuit remands to different judge where previous judge repeatedly imposed below-guideline sentence without giving reasons. (738) The PSRs found that each defendant had an offense level of 46 and a criminal history of VI, which yielded a range of life imprisonment under the guidelines. Because none of the individual offenses carried a life sentence, the PSR recommended stacking the sentences to achieve a 240-year sentence for one defendant and a 40-year sentence for the other. The judge accepted the PSR’s calculations, but departed downward, sentencing the first defendant to three-ten year terms (30 years total) and the other to 20 years. The judge provided no coherent explanation for the departures. The court also provided no advance notice to either party of its intent to depart. On remand, the judge did the same thing, although he did read a purported “notice” written by defense counsel and provided to the judge at sentencing, which provided a brief summary of several of the factors a sentencing judge is required to consider under § 3553. The Second Circuit again remanded for resentencing, this time to a different judge. The resentencings were perfunctory, and were not preceded by a notice of a possible deviation or accompanied by a statement of reasons. Moreover, this was the third time in two years that this particular judge failed to comply with the requirements of notice and an explanation for a non-guidelines sentence, and then on remand, failed to follow a direction of the appellate court to comply with those requirements. U.S. v. Hirliman, 503 F.3d 212 (2d Cir. 2007).
2nd Circuit does not review refusal to depart in reverse sting case. (738) Defendant was arrested while stealing 50 kilograms of real and “sham” cocaine during a reverse sting operation. At sentencing, he sought a departure because his conviction resulted from a reverse sting in which the government had unique control over the quantity of cocaine placed in the warehouse. The Second Circuit held that it lacked jurisdiction over the appeal, since there was no showing that a violation of law occurred or that the guidelines were misapplied. The district court’s ruling was not prompted by any impermissible consideration or error of law; the court recognized its authority to depart. Moreover, the guidelines were not misapplied. Defendant’s actions evidenced an intent to steal all 50 kilograms of real and sham cocaine. U.S. v. Caban, 173 F.3d 89 (2d Cir. 1999).
2nd Circuit rejects downward departure based on 100:1 crack/powder cocaine ratio. (738) Despite the Sentencing Commission’s attempt to equalize penalties, the guidelines currently treat a quantity of crack cocaine as equal to one hundred times as much powder cocaine for sentencing purposes. The Second Circuit rejected defendant’s contention that he should received a downward departure based on the 100:1 ratio. Departures under § 5K2.0 are intended to be based on atypicalities peculiar to the offender or the particular crime, not class‑wide departures based upon the typical offense. U.S. v. Teague, 93 F.3d 81 (2d Cir. 1996).
2nd Circuit says Commission’s crack report and Congress’s reaction do not justify departure. (738) Defendant was sentenced for conspiring to distribute crack cocaine. He argued that the court had the authority to depart downward from the harsher penalties for crack cocaine based on the Sentencing Commission’s 1995 report proposing to eliminate the difference between penalties for crack and powder cocaine. Congress rejected the proposal, but acknowledged that a lesser penalty differential might be warranted. The Second Circuit ruled that neither the Commission’s report nor Congress’s reaction to it provided grounds for a downward departure. U.S. v. Canales, 91 F.3d 363 (2d Cir. 1996).
2nd Circuit approves “time/quantity” downward departures for low level drug defendants. (738) Defendants sold drugs from a house run by large conspiracy. Although both defendants only handled small quantities, the aggregate amount they handled over time was large, and resulted in guidelines sentences of 19 years and 15 years, respectively. The Second Circuit approved a downward departure based on the “time/quantity” factor—the relationship between the amount of narcotics distributed and the time it took. Congress did not expect high sentences to be imposed on low level employees who work 72 hours a week for a salary of $500. Note 16 to § 2D1.1, effective November 1, 1993, suggests that the Sentencing Commission did not previously address the possibility that some high-end quantities may overrepresent a defendant’s culpability. The extent of the departures was reasonable. Both defendants received 10-year mandatory minimum sentences. However, the court rejected a third departure for a defendant who bought and resold four ounces of heroin during a four-month period. The resulting 51 to 63 month guideline sentence did not overstate his culpability. U.S. v. Lara, 47 F.3d 60 (2d Cir. 1995).
2nd Circuit suggests downward departure for gap between amount possessed and amount reasonably foreseeable. (738) Defendant entered the U.S. carrying 336.5 grams of heroin in his shoes. He claimed that he had been told that the shoes contained 250 grams of cocaine. The 2nd Circuit noted that its recent opinion in U.S. v. De Velasquez, 28 F.3d 2 (2nd Cir. 1994), made it clear that a defendant may be sentenced for the entire quantity of drugs in his possession, even if that total was not foreseeable. However, De Velasquez does not preclude considering a downward departure where there is a “significant gap” between the amount of drugs actually possessed and the amount reasonably foreseeable to a defendant. Here, the difference between 336.5 grams of heroin and 250 grams of cocaine was not significant enough to justify a departure. U.S. v. Ivonye, 30 F.3d 275 (2nd Cir. 1994).
2nd Circuit approves departure under 1987 guidelines for drug quantity. (738) Defendant was convicted of operating a continuing criminal enterprise and of a substantive drug offense involving 288 kilograms of heroin. The district court departed upward based on the scale of defendant’s smuggling operation. Defendant argued that this violated the ex post facto clause because this departure was not available under the 1987 guidelines, but only under the 1988 guidelines. The 2nd Circuit approved the departure. The 1987 guidelines do not make any distinctions between defendants based on quantities in excess of 10 kilograms. Thus, the Sentencing Commission did not adequately consider the propriety of terms of supervised release to deal with an extremely large heroin trafficking operation. The district court was therefore entitled to depart on this ground. U.S. v. Eng, 14 F.3d 165 (2nd Cir. 1994).
2nd Circuit upholds departure despite court’s failure to consider interim levels of departure. (738) The 2nd Circuit found that resentencing was not necessary even though in departing upward by six levels, the district court failed to explicitly consider and state its reasons for rejecting each interim level, as required by U.S. v. Kim, 896 F.2d 678 (2nd Cir. 1990). The applicable version of the continuing criminal enterprise guideline, section 2D1.5, carried a base offense level of 36, regardless of drug quantity involved. The commentary provides that if the quantity of drugs substantially exceeds that required for level 36 in the drug quantity table, an upward departure may be justified. A level 36 corresponded to only a half-kilogram of crack, while defendant’s offense involved over 100 times more than that. The court then noted that the November 1, 1989 version of the drug quantity table set an offense level of 42 for quantities of crack in excess of 15 kilograms, and found this then-current version was the “best guide for the degree of departure.” An offense level of 42 yielded a guideline range of 360 months to life, and defendant received a 360 month sentence. U.S. v. Rodriguez, 968 F.2d 130 (2nd Cir. 1992).
2nd Circuit holds that defendant’s intent to repay fraudulent loan did not require downward departure. (738) Defendant fraudulently obtained a loan by misstating his financial situation. He contended, based on application note 10 of § 2F1.1, that the district court should have departed downward because the amount of the loan overstated the seriousness of his offense. The 2nd Circuit rejected this argument, since a district court’s refusal to depart downward is not appealable unless the refusal was based upon the court’s mistaken belief that it did not have the discretion to do so. Defendant’s assertion that note 10 “requires” a reduction in the amount of the actual loss if the accused intends to repay was a misreading of the note, which provides that in some instances a downward departure may be warranted. U.S. v. Brach, 942 F.2d 141 (2nd Cir. 1991).
2nd Circuit affirms upward departure based upon defendant’s use of weapon in dealing drugs. (738) Defendant was convicted of being a felon in possession of a firearm. The court departed upward, finding that defendant had used the weapon in dealing drugs. To determine the extent of the departure, the district court looked to 18 U.S.C. § 924(c)(1), which sets a five-year mandatory minimum for a defendant who uses a weapon in the course of committing a drug offense. This five-year mandatory sentence was then added to defendant’s guideline sentence. The 2nd Circuit affirmed the departure. The district court’s explanation satisfied the requirements for upward departures set forth in U.S. v. Kim, 896 F.2d 678 (2nd Cir. 1990). The resulting sentence, based on the mandatory minimum set by Congress in § 924(c) for the offense that would apply to defendant’s relevant conduct, did not exceed what defendant would have received had he been convicted under § 924(c). The ultimate sentence was also reasonable. U.S. v. Hernandez, 941 F.2d 133 (2nd Cir. 1991).
2nd Circuit upholds upward departure despite reliance on an improper ground. (738) Defendant attempted to bribe an undercover police officer to assist in the escape of several federal prisoners. The district court departed upward by six months to 24 months based upon the fact that the prisoners defendant was assisting were “major” money launderers involved in “major” narcotics offenses, and that defendant attempted to bribe a law enforcement officer. The 2nd Circuit found some merit in defendant’s claim that guideline § 2P1.1(a) took into account the seriousness of the offense by providing for a five-level increase if the escapee committed a felony. Nonetheless, it upheld the departure because it found that the bribery element was an adequate ground for the small departure. The court refused to adopt a rule requiring remand when a district court relies on proper and improper grounds for a departure. A case-by-case approach should be taken and a court may uphold a departure despite a district court’s specification of an inappropriate ground if the departure is reasonable in light of the other grounds cited. U.S. v. Ahuja, 936 F.2d 85 (2nd Cir. 1991).
2nd Circuit affirms defendant’s limited involvement in offense as ground for downward departure. (738) The district court departed downward based on four separate grounds, one of which was defendant’s limited participation in the offense. Defendant only realized he was involved in a drug transaction “shortly before the incident” and his involvement was limited. A co-defendant stated that he deliberately did not disclose all of the details of the transaction to defendant. The 2nd Circuit found no abuse of discretion in the district court’s reliance upon this factor. Defendant had no knowledge of the transaction or the contents of the package he transported until he was in the parking garage where he was arrested. The district court was entitled to find defendant’s role was less than minimal. The district court also based the departure in part on its finding that defendant’s knowledge of the specific amount of drugs in the transaction was not as clearly demonstrated as required by the guidelines. This essentially was another way of saying that defendant was unaware of the transaction’s details, and therefore was improperly cited as an independent reason for a downward departure. U.S. v. Alba, 933 F.2d 1117 (2nd Cir. 1991).
2nd Circuit rejects upward departure based upon transaction in which defendant was not involved. (738) The district court departed upward based upon the high degree of purity of heroin involved. The 2nd Circuit reversed, finding that defendant was not involved in the transaction in question. There were two pertinent transactions. One was a delivery by a co-defendant of 1,944 grams of 96% pure heroin. The second was the conspiratorial undertaking by defendant to deliver 2 kilograms of heroin. The government conceded at sentencing that defendant had no involvement in the delivery of the 1,944 grams of heroin, yet the sentencing judge expressly referred to the “96% purity” as the basis for the upward departure. U.S. v. Contractor, 926 F.2d 128 (2nd Cir. 1991).
2nd Circuit rejects small quantity of drugs as a basis for downward departure from career offender guideline. (738) Defendant was arrested for selling one-half gram of cocaine. Since he had two prior felonies, he was sentenced as a career offender to 168 months. The district court refused to depart downward on the basis of the small quantity of drugs involved in the offense, concluding that this was not a proper basis for a downward departure from the career offender guidelines range. The 2nd Circuit agreed. The career offender guidelines do implicitly consider the quantity of drugs involved in an offense. The career offender base offense level is derived from the statutory maximum penalty, which in turn is based on the quantity of drugs involved. A sentencing court has discretion to give additional consideration to drug quantity when determining where in the applicable guideline range a defendant should be sentenced. The 2nd Circuit also rejected defendant’s argument that the length of time that elapsed since his prior felony convictions provided a basis for a downward departure. U.S. v. Richardson, 923 F.2d 13 (2nd Cir. 1991).
2nd Circuit rules upward departure from guideline for telephone count was justified by amount of cocaine. (738) Defendant was arrested with 20 kilos of 87 percent pure cocaine. In order to protect the confidentiality of an informant, the government agreed to accept a plea of guilty to 21 U.S.C. § 843(b), use of a telephone to facilitate a drug offense. Guidelines § 2D1.6 provided for a sentence of six to twelve months. The judge departed upward, imposing the maximum sentence permitted by the statute, 48 months. The Second Circuit affirmed, holding that the amount of cocaine was not considered by the Commission in adopting the guideline for telephone counts, so it was proper for the judge to depart on that basis. Under 18 U.S.C. § 3742, which permits appeals from sentences, this sentence was not “unreasonable.” U.S. v. Correa-Vargas, 860 F.2d 35 (2nd Cir. 1988).
3rd Circuit holds that court could not impose longer sentence solely to make defendant eligible for drug treatment program. (738) Although defendant’s guideline range was two to eight months, the district court imposed a 30-month sentence, finding such a term was necessary to make defendant eligible for a 500-hour drug treatment program offered by the Bureau of Prisons. The Third Circuit reversed. It is the policy of Congress that defendants not be sent to prison or held there for a specific length of time for the sole purpose of rehabilitation. See 18 U.S.C. § 3582(a) (“imprisonment is not an appropriate means of promoting correction and rehabilitation”). Rehabilitation is a legitimate goal of sentencing. See § 3553(a)(2)(D) (courts shall consider the need for the sentence imposed “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment…”). However, that legitimate goal of sentencing is to be accomplished through other authorized forms of punishment. U.S. v. Manzella, 475 F.3d 152 (3d Cir. 2007).
3rd Circuit holds that low drug purity was not reason to base sentence solely on pure meth found in mixture. (738) Defendant argued that he did not sell more than 500 grams of a mixture containing methamphetamine, because the drugs were so diluted they were effectively unmarketable and thus did not constitute a “mixture.” He argued that his sentence should be based on only the weight of the pure meth involved, about 27 grams. The Third Circuit rejected this argument. While § 841 does not explicitly define “mixture,” the Supreme Court has said that a drug combined with a carrier medium “used to facilitate the distribution of the drug” is a mixture.” Chapman v. U.S., 500 U.S. 466 (1991). Whether a drug plus its carrier is a mixture turns not on the purity of the controlled substance, but rather on how “combined” the substances are, and whether the impure drug is “marketable.” The district court did not clearly err in finding that the drugs defendant sold, which ranged between 1.2 percent and 5.9 percent pure and were on average 2.7 percent pure, contained a “detectable amount of methamphetamine.” The district court correctly refused to depart downward based on the low purity of the drug. If courts could depart whenever they were faced with less than average purity, “the Sentencing Commission’s decision to focus on the weight of the drugs in sentencing would be eviscerated.” U.S. v. Gori, 324 F.3d 234 (3d Cir. 2003).
3rd Circuit rejects upward departure based on drug quantity for courier cooperating with authorities. (738) Defendant advised the DEA that he had been propositioned by a drug trafficker to transport drugs from Belgium to New York on July 9. The DEA agreed to assist, provided defendant arrived in the U.S. on July 13. When defendant refused to change the date, the DEA advised defendant to “walk away” from the situation, warning that he would be stopped and searched if he entered the U.S. Nonetheless, on July 9, defendant arrived at a Newark airport, approached immigration officials, and turned over 21,269.2 tablets of ecstasy, a “designer drug.” He pled guilty to simple possession of a controlled substance. The district court departed from an offense level of two to six, based in part on note 1 to § 2D2.1, which authorizes a departure where the drugs were not intended for defendant’s personal use. The Third Circuit reversed, holding that the note authorized an upward departure where the drugs possessed were for use by someone other than defendant, not where the defendant intended to turn over the drugs to law enforcement. The fact that defendant did not follow the government’s preferred modus operandi did not alter the fact that there was no evidence that defendant intended to distribute or share the drugs. Although a large quantity of drugs can justify a departure in a routine possession case, the rationale for such departures is not dependent on quantity per se, but on what quantity connotes — an intent to distribute the drugs. Where, as here, the sole evidence of intent negates this normal inference, the inference is improper. U.S. v. Warren, 186 F.3d 358 (3d Cir. 1999).
3rd Circuit reverses downward departure based on crack penalty’s disparate impact on African-Americans. (738) Defendant was a heavy crack cocaine trafficker. The district court departed downward under § 5K2.0, concluding that the Sentencing Commission did not adequately consider the disparate impact that its policies would have on African-American males when it developed the guidelines ranges for crack. The court also found that the Drug Equivalency Table which converts one gram of cocaine base to 20 kilograms of marijuana was arbitrary and capricious and the result of “improper agency action.” The Third Circuit reversed, holding that no “improper” agency action was involved in the Sentencing Commission’s establishment of the Equivalency Tables, at least insofar as the 100:1 ratio between crack cocaine and cocaine powder. The statute, 21 U.S.C. § 841(b)(1), established the 100:1 ratio of cocaine powder to crack cocaine. The ratio’s disparate impact on African-Americans was not a proper ground for a downward departure. Every appellate court to consider the issue has rejected the claim. The proposed mitigating circumstance rests on membership in a class rather than on a factor personal to defendant or his offense. Defendant did not establish facts or circumstances peculiar to himself or his offense that justified a downward departure. U.S. v. Alton, 60 F.3d 1065 (3d Cir. 1995).
3rd Circuit rejects “cheap price” departure because defendant stipulated to drug quantity. (738) Defendant argued that a downward departure was required under note 17 to § 2D1.1, because the government’s confidential informant offered to sell him cocaine at price substantially below market price, thereby leading him to purchase significantly more than he would otherwise have been able to purchase. He maintained that his $12,500 would have purchased less than a kilogram of cocaine on the open market, instead of the more than 50 kilograms attributed to him by the district court. The Third Circuit found no error since defendant stipulated in his plea agreement that he was responsible for between 50 and 150 kilograms of cocaine. U.S. v. Melendez, 55 F.3d 130 (3d Cir. 1995), aff’d on other grounds, Melendez v. U.S., 518 U.S. 120, 116 S.Ct. 2057 (1996).
3rd Circuit holds that age and sex of marijuana plants are not grounds for downward departure. (738) Defendant argued that the district court erroneously believed that it lacked discretion to depart downward based upon the age and sex of the marijuana plants. The 3rd Circuit found no error. Departure is appropriate only in atypical cases. There was nothing atypical or unusual in the fact that the particular plants here were male, old and possibly weak. It was apparent that the sentencing commission gave serious consideration to how to assign the equivalency figures to marijuana. The exclusive focus on the number of marijuana plants led to the conclusion that the commission considered and rejected any other factors. Thus, a sentencing court could not conclude that the age or sex of particular marijuana plants were factors not adequately considered by the Commission. U.S. v. Benish, 5 F.3d 20 (3rd Cir. 1993).
3rd Circuit suggests downward departure where case only technically qualified under schoolyard statute. (738) The so-called “schoolyard provision” of the federal drug laws provides enhanced penalties for certain drug crimes that occur within 1000 feet of a school. Defendant argued that the provision requires an intent to distribute the drugs within 1000 feet of a school. The 3rd Circuit rejected this argument. The possibility of application to a defendant who goes by a school in a train or other vehicle on the way to a narcotics deal did not warrant an intent requirement. A trial court presented with one of these extreme cases could depart downward under the sentencing guidelines. In most cases, the effect of the schoolyard statute is a one or two point increase in offense level under section 2D1.2(a). If a case “technically” qualifies for such an increase but it is clear that the defendant’s conduct did not create any increased risk for those whom the schoolyard statute was intended to protect, a one or two point departure to eliminate this increase would be permissible. U.S. v. Rodriguez, 961 F.2d 1089 (3rd Cir. 1992).
3rd Circuit holds guidelines do not preclude departure based on quantity in drug possession cases. (738) The district court considered the quantity (10 grams) of the drugs possessed by the defendant when it departed by 10 months from the applicable range. The Third Circuit held that such consideration was proper because the commentary to § 5K2.0 indicates that the Commission’s failure to reject a particular factor permits, rather than precludes, consideration of that factor in imposing sentence. The Commission neither included nor excluded quantity in the formulation of the guidelines for possession charges. Thus the sentence was affirmed because the reasons for and the length of the 10-month departure were not unreasonable. U.S. v. Ryan, 866 F.2d 604 (3rd Cir. 1989).
4th Circuit rejects departure based on harsher penalties for crack than for powder cocaine. (738) The district court departed downward because of the harsher penalties for crack offenses than for cocaine powder, adopting the reasoning of Judge Wald in her dissent in U.S. v. Anderson, 82 F.3d 436 (D.C. Cir. 1996). Judge Wald argued that adhering to the atypicality requirement in the commentary to § 5K2.0 would violate § 3553(a)(2), which requires the court to impose a sentence sufficient but not greater than necessary to reflect the seriousness of the offense. She reasoned that since the Sentencing Commission has concluded that the harsher penalties for crack cocaine are unwarranted, applying the harsher penalties represents a punishment greater than necessary. The Fourth Circuit rejected this reasoning and reversed the downward departure. Under § 3553, a district court must adhere to the guidelines unless it finds specific circumstances not present in this case. Because § 3553(a)(2) is strictly limited to sentencing decisions within the guidelines’ range, there can be no conflict between it and the requirement in § 5K2.0 that sentencing courts not deviate from the guidelines except in atypical circumstances. Because there was nothing atypical about this case, the court erred in departing downward. U.S. v. Banks, 130 F.3d 621 (4th Cir. 1997).
4th Circuit rejects downward departure based on crack/powder cocaine sentencing disparity. (738) Defendant was convicted of crack cocaine offenses. He argued that the court should have departed downward based on the Sentencing Commission’s recent recommendation that Congress abolish the sentencing distinction between crack and powder cocaine. The Fourth Circuit rejected this claim. Simply because the Commission proposes a revision does not mean that it failed to adequately consider the existing policy. Moreover, this issue does not involve the sort of individual, case‑specific mitigating circumstance justifying a departure under 18 U.S.C. § 3553(b). Finally, Congress has rejected the Commission’s recommendation to abolish the distinction between crack and powder cocaine. U.S. v. Ambers, 85 F.3d 173 (4th Cir. 1996).
5th Circuit precludes departure based on discriminatory impact of crack penalties. (738) Defendant argued that the court erred in failing to grant a downward departure under § 5K2.0 based on the Sentencing Commission’s failure to consider the discriminatory effect of the harsher penalties for crack cocaine. The Fifth Circuit found this argument precluded by U.S. v. Fonts, 95 F.3d 372 (5th Cir. 1996). U.S. v. Thomas, 120 F.3d 564 (5th Cir. 1997).
5th Circuit holds crack penalty’s disparate impact provides no basis for downward departure. (738) Defendant claimed that the court erred in refusing to depart downward based on the different treatment relating to crack and powder cocaine offenses and the disparate impact the penalties have on minorities. The Fifth Circuit held that the disparate impact did not provide a basis for a downward departure. Although the Sentencing Commission proposed a 1:1 ratio to replace the current 100:1 sentencing ratio between crack and powder cocaine, Congress rejected the proposal. A district court may not override the express intention of Congress regarding penalties for crack and powder cocaine. The chosen penalty is a discretionary legislative judgment for Congress and the Sentencing Commission to make. This court previously determined that the harsher penalty for crack cocaine does not violate equal protection, despite the disparate impact on minorities. U.S. v. Fonts, 95 F.3d 372 (5th Cir. 1996).
5th Circuit affirms crack/cocaine powder penalty distinction. (738) Defendants complained that the guidelines for cocaine base violated their due process, equal protection and 8th Amendment rights. They also claimed that a downward departure was warranted. The Fifth Circuit summarily disagreed, noting that it has previously rejected attacks on the crack/powder discrepancies in the sentencing guidelines. Moreover, defendants did not present a theory that would distinguish their cases from the “heartland” of crack offenses. U.S. v. Fike, 82 F.3d 1315 (5th Cir. 1996), overruled on other grounds by U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998).
5th Circuit finds no manipulation of drug quantity to justify downward departure. (738) Defendant, a suspended police officer, was involved in a conspiracy to steal drugs and money from drug dealers. He was caught in a government sting operation in which he was led to believe that Colombian drug dealers had stored 114 kilograms of cocaine in a truck. Defendant argued that he deserved a downward departure because the government manipulated drug quantity, greatly overstating his criminal involvement. The Fifth Circuit found no impermissible manipulation. When told of the 114 kilograms of cocaine, defendant rushed to its location to prepare to steal it. Although he claimed he could not have transported or sold that much cocaine, he told a cooperating witness that he knew someone who could sell it for him. U.S. v. Musquiz, 45 F.3d 927 (5th Cir. 1995).
5th Circuit rules district court exercised discretion in refusing to depart based upon drug purity. (738) The district court refused to depart downward based upon the low purity of the methamphetamine mixture in defendant’s possession. The 5th Circuit rejected defendant’s claim that the district court mistakenly believed it lacked authority to depart from the guidelines. The district court stated that it did not think that this was a case warranting a downward departure. This comment suggested that the district court chose not to depart from the guidelines because it did not think the circumstances warranted a departure, not that it believed its hands were tied. U.S. v. McKnight, 953 F.2d 898 (5th Cir. 1992).
5th Circuit affirms that involvement of juvenile in drug possession offense justifies upward departure. (738) The district court departed upward because defendant (a) had a history of drug abuse, (b) did not take advantage of drug treatment programs, and (c) had involved a juvenile in the offense. The 5th Circuit found that the first two grounds were improper justifications for departure, but upheld the involvement of the juvenile as supporting a departure. The court rejected defendant’s contention that guideline § 2D1.2 provides an offense level for drug offenses involving a juvenile, and that therefore the Sentencing Commission decided not to allow an adjustment or departure for involving a juvenile in a first offense of simple possession. Under guideline § 5K2.0, a specific offense characteristic under one guideline may be relevant for sentencing under a different guideline U.S. v. Williams, 937 F.2d 979 (5th Cir. 1991), overruled on other grounds by U.S. v. Lambert, 984 F.2d 658 (5th Cir. 1993).
5th Circuit upholds 25 percent upward departure. (738) The district court departed upward from a guideline range of 41-51 months and sentenced defendant to 63 months. The departure was justified by defendant’s allowing drug use in front of children in her home, being the chief financial supply for the purchase of cocaine, coercing others, and concealing her role as a drug trafficker. The 5th Circuit upheld the departure. Even if some of the stated grounds were considered by the guidelines, guideline § 5K2.0 permits a departure if the district court determines that, “in light of unusual circumstances, the guidelines level attached to the factors is inadequate.” U.S. v. Wylie, 919 F.2d 969 (5th Cir. 1990).
5th Circuit reverses upward departure made on the basis of local community’s intolerance to drug trafficking. (738) The district court departed upward on the basis of the large quantity of drugs, by local standards, brought into the community by defendant’s drug enterprise. The 5th Circuit, while acknowledging that a large quantity of drugs can be the basis of an upward departure in certain circumstances, found that it was not appropriate in this case. It found that “injecting community-based considerations into the guidelines would undermine Congress’s goal of imposing national uniformity in sentencing.” U.S. v. Barbontin, 907 F.2d 1494 (5th Cir. 1990).
5th Circuit reverses upward departure based on involvement of minor in drug activities. (738) The district court departed upward from 87 months to 300 months because, at the time of defendant’s arrest on cocaine charges, a 15 year old girl was present in his automobile. The defendant argued that if he had been convicted of the offense of involving a minor in a drug transaction in violation of 18 U.S.C. § 845b, the maximum sentence that he could receive would be 108 months. The 5th Circuit reversed the sentence, holding that although the district court was not strictly bound by the adjustment for involvement of a minor specified in § 2D1.2, it held that on remand the district court should explain its reasons for going beyond that guideline range. Moreover the court noted that the government presented no direct evidence that the minor was either involved in the conspiracy or bought, sold or used drugs. U.S. v. Landry, 903 F.2d 334 (5th Cir. 1990).
6th Circuit says court cannot rule out possible basis for departure in crack cocaine case. (738) Defendant moved for a downward departure based on the government’s improper investigative techniques, which allegedly included targeting and inducing parolees and African-Americans to commit crimes. The district court found this was not a sentencing issue, but rather a selective prosecution issue and thus an improper basis for a downward departure. The Sixth Circuit ruled that under Koon v. U.S., 518 U.S. 81 (1996), a judge cannot categorically exclude any non-prohibited factor from consideration for a downward departure. Because improper investigative techniques are not considered by the guidelines, the district court could properly consider them. The appellate court declined to consider whether these factors were present to such a degree as to warrant a downward departure. But it said that although the disparity between crack and powder cocaine is not sufficient in itself to justify a downward departure, such a disparity, when coupled with the improper targeting and inducement, might be sufficient to take a case outside the heartland of crack cocaine cases. Judge Norris dissented. U.S. v. Coleman, 188 F.3d 354 (6th Cir. 1999) (en banc).
6th Circuit holds harsher crack penalties no basis for downward departure. (738) Defendant argued at sentencing that he should receive a downward departure as a result of the sentencing disparity between powder and crack cocaine. The district court refused. Defendant argued that the district court erroneously concluded that it lacked the authority to grant such a downward departure while the government contended that the district court merely exercised its discretion in refusing to depart. The Sixth Circuit found it unnecessary to address the underlying rationale since the refusal to depart was proper under either approach. U.S. v. Washington, 127 F.3d 510 (6th Cir. 1997).
6th Circuit reverses downward departure based on Commission’s recommendation to eliminate 100:1 crack ratio. (738) Defendant was convicted of crack cocaine offenses. The district court departed downward on the ground that the Sentencing Commission had determined that the 100:1 crack cocaine sentencing ratio should be eliminated. The Sixth Circuit reversed. Congress made a clear policy choice in rejecting the Sentencing Commission’s elimination of the sentencing disparity, and the courts may not disregard Congress’s will in this matter. Even if the Sentencing Commission’s cocaine report constituted an open admission that it had not adequately take into consideration the alleged disparities inherent in the 100:1 ratio, Congress did take them into account when it affirmatively rejected the Sentencing Commission’s proposed amendments. Congress made a deliberate and informed decision to keep the 100:1 ratio and not to adopt the 1:1 ratio. When Congress and the Sentencing Commission disagree on sentencing matters, Congress’s view controls. U.S. v. Gaines, 122 F.3d 324 (6th Cir. 1997).
6th Circuit rejects downward departure based on purity of heroin. (738) Defendant asked the court to base the sentence on purity instead of scale weight based on the total weight of the heroin, to allow for a downward departure. The Sixth Circuit rejected defendant’s claim that purity instead of scale weight should be the standard. No downward departure was permitted. U.S. v. Jinadu, 98 F.3d 239 (6th Cir. 1996).
6th Circuit reverses district court’s failure to sentence defendant for 2500 kilograms he conspired to import. (738) The district court found that defendant had conspired to import and distribute 2500 kilograms of cocaine, but sentenced him on the basis of only 2.5 to 3 kilograms. The court did this because most of defendant’s co-conspirators, who were convicted and sentenced nine months earlier, were only sentenced on the basis of the smaller quantity of cocaine. At the time they were sentenced, the government was unable to prove the conspiracy to import and distribute the larger quantity of cocaine. The 6th Circuit reversed, holding that the guidelines do not give a district court discretion to ignore its findings concerning a defendant’s relevant conduct. To the extent the district court actually was departing downward in order to equalize the sentences of co-conspirators, the downward departure was unjustified. Under 6th Circuit law, a district court may not engage in “equalization departures.” U.S. v. Gessa, 971 F.2d 1257 (6th Cir. 1992) (en banc).
6th Circuit affirms failure to depart downward based upon alleged irrationality of drug table. (738) Defendant contended that 18 U.S.C. § 3553(b) requires a district court to depart downward whenever there exists an aggravating or mitigating circumstance not taken into consideration by the guidelines. He then argued that the Sentencing Commission did not properly take into account the true properties of crack and cocaine when it formulated the ratio equating 1 gram of crack to 100 grams of cocaine. Therefore, the district court was required to depart downward in his case and sentence him as if he were convicted of a cocaine offense rather than crack. The 6th Circuit rejected this contention for three reasons. First, a court is never required to depart downward by § 3553(b). Second, a district court’s refusal to depart downward is not appealable. Finally, the 100:1 ratio is not sufficiently unusual to justify a downward departure. U.S. v. Pickett, 941 F.2d 411 (6th Cir. 1991).
6th Circuit reverses departure for involvement of a minor in a drug offense. (738) The 6th Circuit agreed that involvement of a minor in a drug offense can be considered as relevant conduct, but held that there was not a preponderance of evidence connecting the defendant to the employment of a minor. The indictment for involvement of a minor was of a codefendant. Thus the 6th Circuit held that the district court’s finding that defendant involved a minor in a drug operation was clearly erroneous. U.S. v. Robison, 904 F.2d 365 (6th Cir. 1990).
6th Circuit reverses upward departure based on “the harm of crack in our communities.” (738) The 6th Circuit held that a departure based upon “the harm of crack in our communities” is clearly impermissible. The court noted that the Sentencing Commission has established penalties for crack transactions and it is not up to individual judges to determine whether those penalties are too harsh or too lenient. In any event, the defendant here was convicted of possession and distribution of cocaine, not crack. “Crack is a derivative of cocaine, not directly at issue in this case.” U.S. v. Robison, 904 F.2d 365 (6th Cir. 1990).
6th Circuit affirms guidelines departure because defendant was an active cocaine dealer. (738) The sentencing count departed upward because it found the base offense level did not reflect the fact that defendant was a more active cocaine dealer than his offense level indicated. The 6th Circuit affirmed the departure under its three step test outlined in U.S. v. Joan, 883 F.2d 491 (6th Cir. 1989). The court found the circumstances relied upon by the district court were “sufficiently unusual” and the facts justifying the departure were in the record: defendant depended on cocaine dealing for his livelihood more than would another defendant at his offense level. The departure from a range of 41 – 51 months to a range of 51 – 63 months was a reasonable departure from the guidelines, as was the sentence of 60 months. U.S. v. Guarin, 898 F.2d 1120 (6th Cir. 1990).
7th Circuit says departure based on high drug purity must reflect role in the offense. (738) The district court departed by six levels on the ground that the heroin, with a purity of 71%, was of “unusually high purity.” The judge’s rational was that 250 grams of 70% pure heroin would produce 2.5 to 5.8 kilograms of heroin at traditional street-level purities, which run from 3% to 7%. Note 9 to § 2D1.1 says that “unusually high purity” may warrant a departure because drug purity “is probative of the defendant’s role or position in the chain of distribution… [U]nusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs.” The Seventh Circuit held that courts may not depart simply to adjust the quantity of drugs to a “street-level” purity. Note 9 does not invite judges to disregard the rule that the entire mixture or substance must be weighed without regard to purity. “The note makes a different point: that higher purity often is associated with a higher position in the distribution network, which may justify a higher sentence.” It is the higher position in the network, rather than the purity per se, that warrants the departure. Thus, departures should generally be limited to the number of levels that could be awarded under § 3B1.1. U.S. v. Cones, 195 F.3d 941 (7th Cir. 1999).
7th Circuit approves upward departure based on high-purity of heroin. (738) Defendant was arrested after receiving a controlled delivery of a package containing 262 grams of 70% pure white heroin. A DEA agent testified that this heroin would have generated 2.5 kilograms of low-purity heroin for distribution to users. The district court departed upward by six levels to account for the high purity of the heroin. This departure resulted in the base offense level defendant would have received for 2.5 kilograms of low-purity, street level heroin. The Seventh Circuit affirmed. The upward departure was not inconsistent with Congress’s intent that drug penalties be related to the weight of the drugs found. The upward departure allowed the sentencing court to translate the high-purity heroin into its equivalent weight on the street. Section 2D1.1 ensures that traffickers above the retail level are not punished less severely merely because they received the drug in concentrated form, before it is diluted to its street-level weight. U.S. v. Doe, 149 F.3d 634 (7th Cir. 1998).
7th Circuit rejects departure based on alleged cajoling by government agents. (738) Defendant argued that he should have received a downward departure because government agents “cajoled” him into introducing them to a cocaine supplier. The Seventh Circuit rejected this claim. Defendant did not develop his point¾there was no description of how, when or where the agents cajoled him, much less a claim that the government used tactics that violated due process. in fact, the government’s confidential informant claimed that it was defendant who repeatedly bragged about his connections to cocaine dealers and ability to broker deals. The district court concluded that the extent of the alleged “cajoling” was not so unique as to remove this case from the heartland of drug offenses. U.S. v. Santoyo, 146 F.3d 519 (7th Cir. 1998).
7th Circuit rejects downward departure for crack defendants. (738) Defendants were convicted of a conspiracy to distribute crack cocaine. They claimed that they were entitled to downward departures based on the disparity in the way the guidelines treat crack and powder cocaine. The Seventh Circuit held that it lacked authority to review the matter since defendants did not show the judge was confused about his authority to depart. The fact that crack cocaine defendants receive enhanced penalties is not a sufficiently “atypical” or “unusual” circumstance to warrant a downward departure. Defendants did not show that their circumstances were different from other defendants convicted of conspiracy to distribute crack cocaine. U.S. v. Lewis, 117 F.3d 980 (7th Cir. 1997).
7th Circuit refuses to consider sentencing manipulation claim. (738) Defendant contended he was the victim of a “delayed arrest,” and that the government chose not to arrest him earlier in order to ratchet up his sentence under the guidelines. The Seventh Circuit refused to consider this claim because there is no sentencing manipulation defense in this circuit. The court was not interested in “micro-managing law enforcement’s criminal investigations and its arrest of suspected drug conspirators.” The “Constitution does not protect an individual from himself by requiring the government to arrest the criminal before he commits another crime.” U.S. v. Pearson, 113 F.3d 758 (7th Cir. 1997).
7th Circuit says court did not improperly consider Congress’ action in refusing to depart. (738) Defendant was convicted of crack cocaine offenses. He sought a downward departure, citing the Sentencing Commission’s 1995 Report to Congress that criticized the 100:1 crack cocaine sentencing ratio, and the Commission’s proposal to eliminate the disparity. The district court expressed sympathy for defendant’s argument, but denied the request, noting that Congress had rejected the proposed amendment. Defendant argued that Congress’s rejection of the proposed amendment was beyond the scope of permissible considerations, since § 3553(b) permits a court to consider only the guidelines, policy statements, and official commentary of the Sentencing Commission. The Seventh Circuit upheld the denial of the departure. The court’s decision not to depart was not based on Congress’ rejection of the proposed amendment. Rather, it was based on the fact that, because of that rejection, the crack ratio remained in effect. U.S. v. Jackson, 103 F.3d 561 (7th Cir. 1996).
7th Circuit rejects downward departure based on crack penalties’ disparate impact on African-Americans. (738) Defendant was convicted of possessing cocaine base. He argued that he was entitled to a downward departure because the Sentencing Commission did not consider the disparate impact that the 100-to-1 penalty difference for crack versus powder cocaine would have on African-Americans. He pointed to the proposed guideline amendments that would eliminate the penalty differential. The Seventh Circuit rejected the claim. The 100-to-1 ratio was established by Congress in 21 U.S.C. § 841. Moreover, defendant did not show anything atypical about himself or his crime to justify a departure. U.S. v. Booker, 73 F.3d 706 (7th Cir. 1996).
7th Circuit says crack guidelines’ disparate impact on African-Americans is not grounds for downward departure. (738) Defendant argued that the sentencing provisions for crack cocaine have a disparate impact on African-Americans, thus giving the court authority to depart downward. The Seventh Circuit held that a guidelines’ disparate impact on a particular racial group is not grounds for a downward departure. Section 5H1.10 states that race is not relevant in determining a sentence. U.S. v. Arrington, 73 F.3d 144 (7th Cir. 1996).
7th Circuit affirms departure based on large drug quantity. (738) Defendant had a maximum guideline sentence of 27 months for his conviction for maintaining a place for cocaine distribution. The district court departed upward to a 60-month sentence because of the large quantity of drugs involved. The Seventh Circuit affirmed the departure, agreeing that the 1989 version of § 2D1.8 did not adequately consider drug quantity. In 1989, § 2D1.8 did not vary the sentence depending on the quantity of drugs involved. The section was amended in 1992 to tie sentence to the quantity of drugs, as is done for most drug-related crimes. The extent of the departure was reasonable since it was linked to the current guideline structure. U.S. v. Ewers, 54 F.3d 419 (7th Cir. 1995).
7th Circuit refuses to review failure to depart for sentencing manipulation. (738) Defendant argued that the district court erred in refusing to depart downward based on the government’s sentencing manipulation. He contended that the government’s sole purpose in using two kilograms of cocaine in the reverse sting operation was to trigger a mandatory minimum sentence. He further argued that the drug was improperly sold at substantially below market value. The 7th Circuit held that it lacked jurisdiction to consider these claims. The district court was aware of its authority to depart on the grounds suggested by defendant, but declined to do so. Such a decision in not appealable. U.S. v. Winston, 34 F.3d 574 (7th Cir. 1994).
7th Circuit criticizes government for “blind-siding” defendant by seeking departure based on uncharged conduct. (738) Defendant was convicted of selling drugs to an undercover agent. The district court found that all three sales occurred within 1000 feet of a school and departed upward under § 5K2.14 to reflect the endangerment to public safety. The 7th Circuit upheld the departure, but criticized the government for “blind-sid[ing]” defendant by seeking a departure based on conduct with which it easily could have charged defendant. Where the government intends to use conduct at sentencing that can readily be proven at trial and for which there is no risk to the government’s case, the government should charge the defendant with that conduct and try him for it so that the defendant can comprehend the consequences of a conviction. U.S. v. Porter, 23 F.3d 1274 (7th Cir. 1994).
7th Circuit upholds purity departure in case involving large quantity of cocaine. (738) Application note 9 to 2D1.1 states that unusually high purities may justify upward departures, especially in the case of small quantities of heroin. Defendant argued that a departure based on purity was inappropriate in his case, which involved a large quantity of cocaine. Upholding the departure, the 7th Circuit noted that the examples in the note are merely examples of cases in which purity is likely to be especially probative. Purity may nevertheless justify departure in other cases. The court also rejected the argument that purity should not be considered because it was simply the product of the amount of buy money the government agent decided to supply. U.S. v. Connor, 992 F.2d 1459 (7th Cir. 1993).
7th Circuit rejects poor quality of marijuana as grounds for downward departure. (738) Defendant picked a type of marijuana commonly referred to as “Indian ditch weed,” a low-grade marijuana typically used as filler with higher grade marijuana. The 7th Circuit affirmed that a downward departure based on the low quality of the drug would be improper. The Sentencing Commission made an explicit decision to focus on the weight and not the purity of the drugs in determining the offense level. Although application note 9 of section 2D1.1 states that an upward departure might be warranted in cases involving an unusually pure form of the drug, there is no corresponding provision suggesting a downward departure for low quality drugs. If the district courts could depart from the Drug Quantity Table anytime they were faced with drugs of less than “average” purity, the Sentencing Commission’s decision to focus on the weight of the drugs in sentencing would be eviscerated. U.S. v. Upthegrove, 974 F.2d 55 (7th Cir. 1992).
7th Circuit upholds upward departure based on quantity of drugs to be distributed in prison. (738) Defendant, a prison inmate, was convicted of using a communications facility to distribute heroin, which carries an offense level of 12 under guideline § 2D1.6. The district court departed upward to offense level 18 to reflect the seriousness of defendant’s attempt to introduce 22 grams of heroin into a federal prison. Level 18 is the level applicable under the Drug Quantity Table for over 22 grams of heroin. The 7th Circuit affirmed. Generally, a departure from guideline § 2D1.6 based upon the quantity of drugs is authorized, but only to the extent that the amount grossly exceeds the amount established for the offense level. However, because this heroin was to be distributed in prison rather than on the street, a comparatively smaller amount of heroin was necessary to justify the departure. The extent of the departure was also reasonable. U.S. v. Feekes, 929 F.2d 334 (7th Cir. 1991).
7th Circuit upholds upward departure based upon extraordinary quantity of drugs. (738) Defendant was found guilty of possession of 112 kilograms of heroin and 57 kilograms of cocaine. This earned defendant the maximum base offense level of 36, which a defendant would reach by possessing only 10 kilograms of heroin or 50 kilograms of cocaine. The 7th Circuit found that the extraordinary amount of drugs seized from defendant was a proper ground for an upward departure. The court rejected defendant’s argument that the initial base offense levels for drug possession only went up to 36 because the Commission “recognized the diminishing utility of quantity as a distinguishing factor.” The court also rejected defendant’s argument that because the fraud section of the guidelines explicitly allows upward departure based on the quantity of money stolen while the drug section does not contain such a specific reference, that therefore the Commission must have considered and rejected quantity-based departures for drug crimes. U.S. v. Vasquez, 909 F.2d 235 (7th Cir. 1990).
7th Circuit holds possession of weapons by buyers of drugs does not justify departure in seller’s case. (738) The trial court departed from the guideline range on the ground that the Sentencing Commission did not adequately consider that a drug dealer would sell drugs to persons armed with firearms. Applying the “unreasonable” standard of 18 U.S.C. § 3742(d), the Seventh Circuit found this rationale to be unreasonable, given the common occurrence of drug dealers possessing firearms. Section 2D1.1(b)(1) recognizes this by providing for a two point enhancement of the base offense level when a defendant possesses a firearm during commission of a drug offense. Thus, the Commission adequately considered this factor. Because the defendant did not posses the weapon and he was not charged with possession of the weapon under a Pinkerton theory, the departure was unwarranted. U.S. v. Missick, 875 F.2d 1294 (7th Cir. 1989).
8th Circuit finds court’s failure to refer to ability to depart did not show it was unaware it could depart. (738) Defendant argued that the district court erred in not granting him a departure based upon the disparity between cocaine powder and crack sentences. He relied upon U.S. v. Davis, 538 F.3d 914 (8th Cir. 2008) for the proposition that although a court need not deviate from the Guidelines due to the powder/crack disparity, a court errs when sentencing if it does not believe that it can deviate from the Guidelines. He contended that the court’s failure to refer to its ability to depart from the Guidelines proved that the court was under the false belief that it had no discretion to grant a downward departure. The Eighth Circuit disagreed. The absence of any explicit statement was not surprising, given that this objection was not raised before the district court. U.S. v. Martin, 583 F.3d 1068 (8th Cir. 2009).
8th Circuit, en banc, holds that court could not depart downward based solely on rejection of 100:1 powder/crack cocaine sentencing ratio. (738) The government argued that the district court erred in granting a downward variance based solely on the court’s categorical rejection of the 100:1 powder cocaine to crack cocaine sentencing ratio in the guidelines. The Eighth Circuit, en banc, joined the First, Second, Fourth, Seventh and Eleventh Circuits in holding that courts cannot vary downward from the guidelines based solely on a categorical rejection of the guidelines 100:1 cocaine sentencing ratio. A judge’s personal views regarding the Sentencing Commissions’ recommendations cannot supplant Congress’s refusal to adopt those recommendations. For 20 years, Congress had elected not to revise the 100:1 quantity disparity between powder cocaine and crack cocaine. The reason for this inaction, whether due to a political stalemate or other legislative grounds, was irrelevant. U.S. v. Spears, 469 F.3d 1166 (8th Cir. 2006) (en banc).
8th Circuit rejects sentencing entrapment claim. (738) Defendant requested a downward departure, claiming that law enforcement officers improperly engaged him in undercover drug sales and purchases for the sole purpose of driving up his sentence. The Eighth Circuit found this argument without merit. Law enforcement officers were investigating a large conspiracy. Under such circumstances, they are entitled to continue dealing with an individual with whom they have already engaged in illegal transactions in order “to probe the depth and extent of a criminal enterprise, to determine whether co-conspirators exist, and to trace the drug deeper into the distribution hierarchy.” The panel also rejected defendant’s claim that the probation office violated his due process rights by participating in an unlawful law enforcement contract. The district court addressed this issue and determined that there were no grounds for a departure. U.S. v. Jackson, 345 F.3d 638 (8th Cir. 2003).
8th Circuit holds that lack of danger from proximity to playground was not grounds for departure. (738) Defendant pled guilty to possession of methamphetamine with intent to distribute within 1000 feet of a public playground, in violation of 21 U.S.C. §§ 841(a) and 860. He sought a downward departure on the grounds that he had posed no real danger by his “proximity to a park.” The Eighth Circuit held that the district court properly determined that it lacked authority to depart on the basis that his proximity to a public playground posed no added danger. A conviction under § 860(a) does not require that the offense actually involve children or pose any real danger to children. Nothing in the statute requires that school be in session or that children be near or around the school or playground at the time of the offense. A defendant need not know that he distributed drugs within the 1000 foot zone to be convicted. U.S. v. Koons, 300 F.3d 985 (8th Cir. 2002).
8th Circuit requires drug quantity finding to determine whether mandatory minimum was applicable. (738) The district court stated that it was departing downward, and imposed a 24-month sentence. The government contended that the district court lacked authority to sentence defendant below the 10-year mandatory minimum sentence set forth in 21 U.S.C. § 841(b)(1) (A)(iii), for offenses involving 50 or more grams of cocaine base. The Tenth Circuit agreed that the court lacked authority to sentence defendant below the statutory minimum if the pertinent provision in § 841(b) applied and the government lawfully declined to move for a downward departure under 18 U.S.C. § 3553(e). However, the district court did not expressly find that 50 or more grams of cocaine were involved, and did not specifically rule on the applicability of § 841(b). The court’s statements that the sentencing range was 97 to 121 months, “but because of the statutory minimum it is 120 months” did not appear to be a ruling on the applicability of § 841(b) when read in the context of the entire sentencing hearing. On remand, the district court must make a factual finding as to the quantity of cocaine base involved in defendant’s offense. If the court concludes that the relevant quantity is 50 grams or more, the ten-year statutory minimum is applicable and, in the absence of a government departure motion under 18 U.S.C. § 3553(e), the court will be precluded from sentencing defendant to less than 10 years. U.S. v. Smith, 240 F.3d 732 (8th Cir. 2001).
8th Circuit says sentencing entrapment focuses on predisposition, not outrageous government conduct. (738) A government informant asked his friend, a powder cocaine dealer, to buy some crack. Defendant said that he did not sell crack, just powder. They had five or six conversations over four weeks and the informant repeatedly asked defendant for crack. Finally, defendant agreed, and he was arrested when he delivered 28.6 grams of crack to the informant. The district court rejected his claim of sentencing entrapment, finding it was only viable when “outrageous government conduct overcomes the will of a defendant predisposed to deal only in small quantities of drugs, and in this case other types of drugs.” The Eighth Circuit reversed, holding that the sentencing entrapment analysis focuses on the defendant’s predisposition, and not on outrageous government conduct. The government’s conduct is relevant only insofar as it provides the inducement. See U.S. v. Berg, 178 F.3d 976 (8th Cir. 1999). The evidence showed that defendant never dealt crack until the government informant coaxed defendant to sell crack. The district court determined that the government’s conduct was not outrageous. However, the government’s conduct does not have to be outrageous. Rather, the facts should be evaluated by focusing on the defendant’s predisposition. U.S. v. Searcy, 233 F.3d 1096 (8th Cir. 2000).
8th Circuit rejects downward departure for sentencing entrapment. (738) Defendant argued that two informants induced him to participate in a scheme to manufacture methamphetamine. He admitted that he had previously manufactured meth before working with the informants, but stated that he had never manufactured a batch as large as 12 pounds. He also argued that the informant would benefit under their cooperation agreement if they induced him to commit a crime with a greater sentence. The Eighth Circuit found no evidence of sentencing entrapment that would support a downward departure. The amount of drugs involved in sting and reverse-sting operations can be easily manipulated by the government, and courts have begun to question the government’s power to control sentencing. However, there was no evidence that the informants set defendant up to manufacture a greater amount of methamphetamine simply to enhance defendant’s sentence. U.S. v. Berg, 178 F.3d 976 (8th Cir. 1999).
8th Circuit rejects sentencing entrapment claim. (738) Defendant and a co-conspirator operated a methamphetamine laboratory in defendant’s cabin. They invited Kearbey, defendant’s brother-in-law, to assist them in manufacturing methamphetamine. Unbeknownst to them, Kearbey was assisting federal authorities. Defendant was arrested after Kearbey delivered 2088 grams of ephedrine, which had been crushed and soaked by government agents. The Eighth Circuit rejected defendant’s claim that the government had engaged in sentencing entrapment. Although defendant contended that he was not predisposed to manufacture 100 grams of meth (the amount he admitted they were attempting to produce), his co-conspirator testified that he and defendant attempted to manufacture 100 grams in 1996 but they had “messed it up.” In light of lab’s capacity to manufacture 112 grams of actual meth, coupled with defendant’s admission that he had manufactured eight to 12 grams of meth on seven occasions before his arrest, the government did not overcome any predisposition on defendant’s part to deal only in smaller quantities of methamphetamine. U.S. v. Hunt, 171 F.3d 1192 (8th Cir. 1999).
8th Circuit says defendants’ erroneous belief about type of drugs they carried not grounds for departure. (738) Defendants were the driver and passenger of a car carrying 11.41 kilograms of methamphetamine. Before sentencing, both defendants jointly moved for a downward departure under § 5K2.0, claiming that they mistakenly believed that they were transporting marijuana, not methamphetamine. The district court denied the motion and imposed a 10-year mandatory minimum on the driver, and a 70-month sentence on the passenger, who was eligible for safety valve protection. The Eighth Circuit held that the district court lacked authority to depart based on the defendants’ mistake of fact of their sentencing accountability. The crime to which defendants pled guilty was a violation of 21 U.S.C. § 841(a)(1), possessing a controlled substance with the intent to distribute. The nature of the controlled substance was relevant only as a sentencing factor. U.S. v. Rodriguez-Ochoa, 169 F.3d 529 (8th Cir. 1999).
8th Circuit upholds refusal to grant sentencing entrapment departure. (738) Defendant was convicted of conspiring to distribute 100 or more grams of methamphetamine. He argued that the district court erred in refusing to depart based on a theory of sentencing entrapment or sentencing manipulation. He contended that police improperly engaged him in additional drug sales, well after achieving their legitimate investigative goals, for the sole purpose of increasing his sentence. The Eighth Circuit held that the district court did not err in refusing to grant the sentencing entrapment departure. Defendant did not show that the officers engaged in the later drug transactions solely to enhance his potential sentence. The evidence supported the conclusion that the officers engaged in an ongoing series of drug purchases from defendant in an effort to gain his confidence and identify as many co-conspirators as possible, as well as his source of supply. U.S. v. Baber, 161 F.3d 531 (8th Cir. 1998).
8th Circuit says failure to object to harsher crack penalties was not ineffective assistance. (738) Defendant claimed that his attorney’s failure to challenge the PSR’s use of the harsher penalties for crack cocaine constituted ineffective assistance. The Eighth Circuit held that the failure to object to the harsher crack penalties were not ineffective assistance. This court has repeatedly held that the disparity between crack and powder cocaine sentences is not a basis for a downward departure. Patterson v. U.S., 133 F.3d 645 (8th Cir. 1998).
8th Circuit rejects departure for disparity, cost of imprisonment, harsh crack penalties, and lack of gun. (738) Defendants pled guilty to a crack cocaine conspiracy. The Eighth Circuit rejected a downward departure based on lower sentences that other conspirators in the scheme had received from other judges, the costs of imprisoning the defendants, the harsher penalties for crack cocaine offenses, and the fact that there were no weapons or violence involved in the offense. Previous cases have held that disparity between sentences imposed on co-defendants and the harsher penalties for crack cocaine are not a proper bases for departure. The decision whether tax dollars should be used for lengthy sentences is for Congress, not the federal courts. Defendants’ sentences already accounted for their lack of weapons–none received a § 2D1.1(b)(1) enhancement and two received a reduction under § 5C1.2. U.S. v. Wong, 127 F.3d 725 (8th Cir. 1997).
8th Circuit bars downward departure based on low purity level of meth mixture. (738) Police seized from defendant a mixture containing less than one percent pure methamphetamine. The district court denied defendants’ motion for a downward departure based upon the low purity of the methamphetamine. The Eighth Circuit held that the Sentencing Commission explicitly considered the purity level of methamphetamine in a mixture, and therefore low purity was not a proper basis for departure. The guidelines set forth two methods for determining a base offense level in methamphetamine cases. One is based on the weight of the mixture, which refers to the entire weight of any mixture containing a detectable amount of the controlled substance. The other is based on the weight of the pure methamphetamine, which refers to the actual weight of the methamphetamine itself contained in the mixture. The Drug Quantity Table directs the sentencing court to use the method that results in the greater offense level. A departure below this “greater” offense level solely on the basis of a mixture’s low purity would directly contradict and effectively eviscerate the Commission’s explicit formula. U.S. v. Beltran, 122 F.3d 1156 (8th Cir. 1997).
8th Circuit refuses to overturn circuit precedent upholding 100-to-1 crack cocaine sentencing ratio. (738) Defendant contended that the court committed error when it refused to depart downward in order to mitigate the harsh 100-to-1 ratio between sentences for crack and powder cocaine. Defendant recognized that circuit case law holds to the contrary and suggested that it was the court’s “duty to declare that the punishment for crack versus powder cocaine is repugnant and unjust.” The Eighth Circuit held that the district court did not err in denying defendant’s request for a downward departure. A single panel cannot reverse a well-established pattern of the circuit’s case law; such action can only originate from the court en banc. U.S. v. Bass, 121 F.3d 1218 (8th Cir. 1997).
8th Circuit reaffirms 100:1 sentencing ratio for cocaine base and powder cocaine. (738) Defendants challenged the 100:1 sentencing ratio between cocaine base and powder cocaine, contending that (1) the distinction was ambiguous and the court should have applied the rule of lenity to impose the lesser penalty, and (2) the court should have departed downward under § 5K2.0. An expert testified that the terms cocaine and cocaine base are synonymous and that crack cocaine, as it was known in the 1980s—the substance to which Congress intended the stiffer penalty to apply—no longer existed. The Eighth Circuit held that defendant’s challenges to the 100:1 ratio had previously been considered and rejected. While U.S. v. Jackson, 64 F.3d 1213 (8th Cir. 1995) did not address the unique claim that “crack,” as previously understood, no longer exists, the case is still controlling. Defendants did not contend that they were unaware they were dealing in crack or that they could not distinguish between the two. The 100:1 ratio is not a basis for departure, and does not violate equal protection. U.S. v. Herron, 97 F.3d 234 (8th Cir. 1996).
8th Circuit approves departure based on large profits and use of legitimate business to hide drug proceeds. (738) Defendant, a legitimate businessman, pled guilty to storing marijuana in his buildings. The Eighth Circuit upheld an upward departure based on defendant’s large return on his investment, his knowing use of his legitimate business to mask the drug proceeds, and the fact that the charge of storing marijuana was not commensurate with defendant’s criminal acts. The factors cited by the court involved defendant’s relevant conduct and were not used anywhere in his guideline calculation to determine his offense level. U.S. v. McCarthy, 97 F.3d 1562 (8th Cir. 1996).
8th Circuit finds no discriminatory purpose in Congress’s refusal to eliminate crack disparity. (738) Defendant argued that the 100-1 sentencing ratio between crack and powder cocaine had a disproportionate adverse impact on African Americans. He further contended that Congress’s rejection of a proposed guideline amendment that would have eliminated this disparity evidenced a discriminatory purpose in maintaining the penalty scheme. The Eighth Circuit held that defendant did not show that Congress rejected the amendment or that the President approved the bill because they wanted to impose a disproportionate adverse effect on African Americans. The fact that Congress has seldom, if ever, rejected a proposed amendment to the guidelines does not mean that Congress departed from the normal procedural sequence to amend the guidelines. Congress’s rejection of the amendment was rationally related to a legitimate government purpose—determining a more appropriate punishment for crack offenses than the existing ratio or the ratio proposed by the Commission majority. U.S. v. Carter, 91 F.3d 1196 (8th Cir. 1996).
8th Circuit rejects downward departure based on 100:1 ratio of crack to powder cocaine. (738) Defendant argued that recent developments concerning the guidelines’ 100‑1 ratio between crack and powder cocaine justified a downward departure from sentences for crack cocaine. The Eighth Circuit held that the court lacked authority to depart downward based on the disparate impact of crack/powder cocaine ratio. The Supreme Court’s recent decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996) did not support defendant’s claim. It did not undercut the court’s conclusion that § 5K2.0 gives district courts the power to depart for unusual circumstances peculiar to particular cases, and not for reasons common to a whole class of cases. Although the Sentencing Commission strongly recommended against a 100:1 quantity ratio, Congress rejected this recommendation. U.S. v. Lewis, 90 F.3d 302 (8th Cir. 1996).
8th Circuit rejects proposed crack amendment as grounds for departure. (738) Defendant pled guilty to distributing crack. He challenged the district court’s failure to depart based on the Sentencing Commission’s February, 1995, conclusion that the 100-1 ratio between penalties for crack and powder cocaine was not justified. He also suggested that a proposed amendment to the guidelines eliminating the 100-1 ratio justified a departure. The Eighth Circuit held that the proposed amendment was not a basis for departure, noting that Congress recently rejected it. U.S. v. Higgs, 72 F.3d 69 (8th Cir. 1995).
8th Circuit rejects claim that government’s low price induced defendant to purchase additional drug quantities. 738) Defendant argued that it was unfair to predicate his sentence on the four kilograms the government agent sold him because the price (half the market rate) was artificially low. He claimed that the court should have based his sentence either on the quantity that the same amount of money would have bought at the usual retail price, or should have departed downward. The 8th Circuit rejected the claim, noting that a recent amendment to note 17, § 2D1.1 states that a court may depart downward if the government sets a price substantially below the market price, and this leads a defendant to purchase significantly more drugs than his resources would otherwise have allowed him to do. Here, however, the low price did not induce defendant to buy quantities that he otherwise lacked the resources to purchase. U.S. v. Hulett, 22 F.3d 779 (8th Cir. 1994).
8th Circuit departs down where defendant used sawed-off shotgun to kill animals that preyed on his chickens. (738) After stopping defendant for drunk driving, police discovered an unloaded rifle with a shortened barrel in his van. He pled guilty to unlawful possession of an unregistered firearm. The 8th Circuit approved a downward departure under section 5K2.11, because defendant’s conduct did not cause the harm sought to be prevented by the statute. Defendant used the gun to kill small animals that preyed on his chickens. He sawed off the rifle’s barrel to make it easier to handle when hunting the animals when they hid in the crawl spaces underneath the shacks next to his house. However, the departure was not justified under section 5K2.0 based on defendant’s employment record, family ties, and living conditions on an Indian reservation. The case was factually distinguishable from U.S. v. Big Crow, 898 F.3d 1326 (8th Cir. 1990). U.S. v. White Buffalo, 10 F.3d 575 (8th Cir. 1993).
8th Circuit suggests marijuana conversion ratio may be unconstitutional. (738) Defendant pled guilty to manufacturing in excess of 100 marijuana plants. The district court departed downward sua sponte, finding it was arbitrary and capricious to set the conversion ratio at one kilogram per plant for 50 or more plants, but only 100 grams for 49 or fewer plants. The 8th Circuit rejected this as a ground for departure, but suggested that on remand, defendant should challenge the conversion ratio as arbitrary and capricious. The court acknowledged that decisions have upheld the ratio on the ground that Congress intended “heightened culpability” for growers. However, even if Congress intended to punish growers more severely, the court found no evidence that it intended to adopt a harsh 10 to 1 one punishment ratio. The court found it might be fruitful to explore (1) what rationale, if any, there was the 10 to 1 ratio, and (2) whether Congress and the Sentencing Commission actually intended such disparity in punishment. U.S. v. Marshall, 998 F.2d 634 (8th Cir. 1993).
8th Circuit affirms downward departure for defendant who aided and abetted drug offense by selling drug paraphernalia. (738) Defendant was convicted of aiding and abetting the manufacture and distribution of cocaine as a result of her business which sold drug paraphernalia. The court departed downward from 188 months to a sentence of 108 months, because it found that the Sentencing Commission, in determining the appropriate range for aiding and abetting the sale and manufacture of controlled substances, did not have in mind this type of case. The 8th Circuit affirmed that as a matter of law, the circumstances of defendant’s aiding and abetting conduct was sufficiently unusual to warrant a departure. Defendant’s only involvement in the manufacture and distribution of cocaine was as a seller of diluent. U.S. v. Posters ‘N Things, 969 F.2d 652 (8th Cir. 1992), cert. granted, 113 S.Ct. 1410 (1993).
8th Circuit upholds upward departure based upon importing harmful drugs into the United States. (738) The commentary to guideline § 2T3.1 (Evading Import Duties or Restrictions) provides that an upward departure may be appropriate in cases where a defendant smuggles a harmful good into the United States, and the duties evaded on such good may not reflect the harm to society resulting from its importation. Defendant imported over $1 million worth of adulterated drugs, including 50 kilograms of an animal drug into the United States. The 8th Circuit found that defendant’s offense fell into the situation described in the commentary. Therefore the district court’s upward departure was justified, and the 24-month sentence was reasonable. U.S. v. Dall, 918 F.2d 52 (8th Cir. 1990).
8th Circuit reverses departure based on defendant’s unproven “involvement” with drugs in the past. (738) The district court stated that the government’s proof fell short of establishing defendant’s past drug conduct, and accordingly it would not rely on it in determining the offense level, but would use it in departing from the guidelines. The 8th Circuit reversed the departure, holding that a “generalized feeling that [defendant] had nevertheless been involved with drugs in the past is not a sufficient basis for sentencing him outside the Guidelines.” U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).
8th Circuit upholds upward departure in “telephone count” conviction for extensive participation in drug enterprise. (738) Defendant pled guilty to using a communication facility in the commission of a drug offense. The district court departed upward based on defendant’s significant involvement in the underlying drug offense. The defendant had acquired two properties for the operation and participated extensively in the packaging and production of drugs at each location. Defendant argued that the count to which she pled did not make the quantity of drugs involved a determinate factor in sentencing and therefore her extensive involvement was irrelevant. The 8th Circuit disagreed, holding that “nowhere in the guidelines does the Commission reject participation in manufacture and distribution of drugs as appropriate factors for consideration in sentencing telephone count offenders.” Thus these were appropriate factors for upward departure. U.S. v. Williams, 895 F.2d 435 (8th Cir. 1990).
9th Circuit says court may consider drug addiction in applying § 3553(a) factors. (738) At defendant’s sentencing for conspiracy to traffic in methamphetamine, he argued that the court should consider his drug addiction under 18 U.S.C. § 3553(a) as part of his “history and characteristics.” The district court held that it did not have discretion to consider defendant’s alleged diminished mental capacity due to drug addiction because the guidelines preclude using voluntary drug addiction as a basis for a downward departure. The Ninth Circuit held that the factors that constrain the court’s discretion to depart under the guidelines do not necessarily constrain the court when considering the § 3553(a) factors. The court held that a district court is not prohibited in all circumstances from considering a defendant’s drug addiction in choosing a reasonable sentence. U.S. v. Garcia, 497 F.3d 964 (9th Cir. 2007).
9th Circuit rejects departure for nondisclosure of alleged Brady material and ineffective assistance. (738) Defense counsel asserted during cross-examination that a law enforcement agent made anti-Semitic remarks about her. She then submitted declarations from both her and the defendant stating that the agent made the remarks. Also, defendant testified at trial that he was not in the United States to pick up cocaine, but had come to do Christmas shopping. After his conviction, defendant argued that his trial attorney had advised him to lie in his defense and had supplied a false affidavit about the anti-Semitic remarks. Based on these allegations, the court found defendant had received ineffective assistance. The court also found that the government had not disclosed prior to trial that some of the Customs agents who testified at trial had received small cash or time-off awards for their work in other investigations and that one had received a gift certificate for her work on this case. Although the district court found that this was not Brady material, it held that it was prosecutorial misconduct not to disclose it because it would have been another “arrow in the defendant’s quiver during plea negotiations.” On these two grounds, the court departed downward eight levels. The government appealed, and the Ninth Circuit reversed. The panel held that government misconduct may be a basis for a downward departure if it causes demonstrable prejudice at sentencing, but here (1) the district court had found that the information was not Brady material; (2) a Brady departure is improper because it simultaneously assumes the validity of the defendant’s conviction while calling its validity into doubt; and (3) disclosure of the information would not have affected the defendant’s decision to proceed to trial. Ineffective assistance of counsel is not a permissible ground for departure. U.S. v. Basalo, 258 F.3d 945 (9th Cir. 2001).
9th Circuit says Koon permits downward departure for disparity between co-defendants. (738) In U.S. v. Enriquez-Munoz, 906 F.2d 1356, 1360 (9th Cir. 1989), the Ninth Circuit held that an upward departure to equalize disparate sentences was impermissible under the sentencing guidelines. Six years later, the Supreme Court in Koon v. U.S., 518 U.S. 81, 109 (1996) held that, unless the guidelines specifically prohibit downward departure on a particular ground, the sentencing court must determine whether the facts of the case warrant departure on that ground. Accordingly, in this case, the Ninth Circuit held that “[d]ownward departure to equalize sentencing disparity is a proper ground for departure under the appropriate circumstances.” Indeed, the panel said that “a central goal of the Sentencing Guidelines is to eliminate sentencing disparity.” Because the district court believed incorrectly that it lacked the authority to depart downward based on sentencing disparity between the defendant and the cooperating co-defendants, the case was remanded for findings as to whether a downward departure was appropriate. U.S. v. Daas, 198 F.3d 1167 (9th Cir. 1999).
9th Circuit does not apply “plain error” doctrine where error was not “plain” until after sentencing. (738) The issue of sentencing entrapment was not raised before the district court, because sentencing entrapment was not recognized as a basis for reduction of a sentence until U.S. v. Staufer 38 F.3d 1103, 1106 (9th Cir. 1994), was decided fifteen days after sentencing. When possible error is not objected to at trial, the Ninth Circuit ordinarily reviews for plain error. “Here, however, any error was not plain until Staufer was decided.” Under these circumstances, the Ninth Circuit reviewed for harmless error, relying on the Supreme Court’s decision in Johnson v. U.S., 117 S.Ct. 1544 (1997). On the merits, however, the court found that even if sentencing entrapment was a possible reason for a lighter sentence at the time of sentencing, there was not sentencing entrapment here. U.S. v. Henson, 123 F.3d 1226 (9th Cir. 1997).
9th Circuit, applying Koon, permits downward departure for lack of knowledge of purity of drugs. (738) As the middle-man between the informant and the suppliers, defendant had no control over, or knowledge of, the purity of the methamphetamine he delivered. The district court ruled that it had no discretion to depart based on lack of knowledge of the purity of the drugs, but on appeal, the Ninth Circuit reversed, emphasizing that after Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996), courts may not create additional categories of factors that they deem inappropriate as grounds for departure. The factors expressly prohibited by the guidelines are few. The court noted that application note 14 to § 2D1.1 permits a downward departure under certain circumstances when a defendant’s own conduct or that of his co-conspirators results in an offense level greater than justified by his capability. This note did not apply to defendant, but neither did it “occupy the field.” Although application note 9 precludes an upward departure on the basis of unusually high purity, it says nothing about whether a district court can depart downward. The court said that what falls within the “heartland” of a guideline is within the discretion and special expertise of the district court in the first instance. The case was remanded to permit the district court to exercise its discretion. U.S. v. Mendoza, 121 F.3d 510 (9th Cir. 1997).
9th Circuit forbids downward departure based on crack/powder sentencing disparity. (738) The Ninth Circuit noted that the widely disparate penalties for cocaine and cocaine base “may be unfair,” but courts of appeal nevertheless have held that district courts have no authority to depart downward for that reason. Consistent with its holding in U.S. v. Jackson, 84 F.3d 1154 (9th Cir. 1996), the Ninth Circuit joined other circuits that have held that “district court has no discretion to depart downward based on the powder/base sentencing disparity.” U.S. v. Berger, 103 F.3d 67 (9th Cir. 1996).
9th Circuit upholds two level departure for duration and sophistication of cocaine offense. (738) Authorities estimated that the defendants’ organization moved over 250 tons of cocaine between 1987 and 1989. The district court departed upward by two levels for “the harm to society, the sophisticated nature of the offense, and the long duration of the conspiracy.” On appeal, the Ninth Circuit affirmed, rejecting defendants’ argument that the departure for the duration of the conspiracy necessarily involved an improper consideration of quantity of drugs. Quoting U.S. v. Shields, 939 F.2d 780 (9th Cir. 1991), the court said that “duration is not the same thing as quantity.” The court noted that the Ninth Circuit has also upheld departures for the sophistication of an illegal operation. The extent of the departure, two levels, was reasonable and not an abuse of the district court’s discretion. U.S. v. Ponce, 51 F.3d 820 (9th Cir. 1995).
9th Circuit permits downward departure under Note 16 only if relevant conduct overrepresents culpability. (738) Application Note 16 to § 2D1.1 permits a downward departure where (1) the amount of drugs results in a base offense level greater than 36, (2) the court finds that the offense level overrepresents the defendant’s culpability, and (3) defendant qualifies for a mitigating role. Here, the defendants argued that because they qualified for a mitigating role, the offense level necessarily overrepresented their culpability. The Ninth Circuit rejected the argument, noting that Note 16 was intended to permit a departure where the defendant was held accountable under the relevant conduct section, 1B1.3, for large amounts of drugs with which he may have had little personal involvement. The defendants here were only charged with drugs they actually transported or handled. Since the district court properly interpreted Note 16, its discretionary denial of a downward departure was not reviewable. U.S. v. Pinto, 48 F.3d 384 (9th Cir. 1995).
9th Circuit reverses departure for “cheating” DEA agents in drug deal. (738) Instead of delivering three kilos of cocaine to the undercover DEA agents, defendant delivered three bricks of sawdust with about 25 grams of cocaine in a hollowed-out space. The district court departed upward five levels for the increased likelihood of violence during an attempted drug fraud. Defendant also received a five-year consecutive sentence under 18 U.S.C. § 924(c) for carrying a firearm in connection with the crime. On appeal, the 9th Circuit reversed the departure, holding that § 924(c) “necessarily reflect[s] concern for the increased risk of violence that attends attempted drug frauds (and attempted arrests) when weapons are present.” Since this factor was already considered in the 924(c) count, it was it was improper to use it to depart on the drug count. Judge Rymer dissented. U.S. v. Zamora, 37 F.3d 531 (9th Cir. 1994).
9th Circuit finds male drug carriers were not treated more harshly than females in plea bargaining. (738) In U.S. v. Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992), the 9th Circuit remanded this case to determine whether the U.S. Attorney was violating equal protection by treating male drug carriers more harshly in plea bargaining than females. On remand, several AUSAs testified about their plea bargaining decisions as to the three defendants in this case and ten other cases the district judge cited to support his finding of gender-based selective prosecution. Despite testimony of neutral reasons for treating males and females differently, the district judge found discrimination, and departed downward from the mandatory minimum sentences. On appeal, the 9th Circuit reversed, rejecting the district court’s findings for lack of sufficient evidence, and stressing the “extreme deference the courts must give to prosecutorial charging decisions.” U.S. v. Redondo-Lemos, 27 F.3d 439 (9th Cir. 1994).
9th Circuit finds greater potency of OPP/PPP justified 10 level departure. (738) The Ninth Circuit originally reversed defendant’s sentence because the district court improperly used a multiplier factor to calculate the base offense level for conspiracy to manufacture a controlled substance analogue (OPP/PPP). U.S. v. Ono, 913 F.2d 1462 (9th Cir. 1992). On remand, the district court departed upward 10 levels based on the greater potency of OPP/PPP. The Ninth Circuit upheld the departure, finding the guidelines considered only the potency of listed analogue drugs and not OPP/PPP. As a result, the greater potency of OPP/PPP was not adequately considered by the guidelines. In addition, the district court had adequate evidence before it to establish the greater strength of OPP/PPP in relation to other drugs. The extent of the departure was fully supported by the presentence report. U.S. v. Ono, 997 F.2d 647 (9th Cir. 1993).
9th Circuit says 1992 amendment makes drug courier eligible for role adjustment, and ineligible for departure. (738) In U.S. v. Zweber, 913 F.2d 705 (9th Cir. 1990), the 9th Circuit held that a drug courier is not eligible for a mitigating role adjustment under §3B1.2, because he is the only participant in the offense of conviction. As a result, the Ninth Circuit in U.S. v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir. 1992) upheld a downward departure for a drug courier. However, effective November 1, 1992, the Introductory Commentary to Chapter 3 of the Guidelines was amended to state that the “determination of the defendant’s role in the offense is to be made on the basis of all conduct within the scope of §1B1.3 (Relevant Conduct),” and “not solely on the basis of . . . the count of conviction.” The 9th Circuit held that in light of this amendment, couriers are now eligible for mitigating role adjustments. By the same token, “a downward departure on this ground alone is no longer appropriate.” U.S. v. Webster, 996 F.2d 209 (9th Cir. 1993).
9th Circuit says upward departure was justified by drug trafficking activity for which defendant had not been convicted. (738) The district court had reliable information, in the form of case reports and testimony by a business associate, that the defendant had engaged in a wide range of drug trafficking activity for which he had not been convicted. Relying on U.S. v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir. 1991) (en banc), the 9th Circuit held that this authorized the district court to depart upward because defendant’s criminal history assessment did not adequately reflect his past criminal conduct. However the court reversed the extent of the departure. U.S. v. Schubert, 957 F.2d. 694 (9th Cir. 1992).
9th Circuit approves “incomplete duress” as basis for downward departure in drug case. (738) U.S.S.G. section 5K2.12 authorizes downward departures for “incomplete duress.” The 9th Circuit held that “the incomplete defense of duress supposes a voluntary crime carried out by a person whose personal characteristics and personal perception of the circumstances of the situation made her susceptible to the threat of force.” In this case, the women defendants had been subject to “savage” treatment and had been involved with “a manipulative, violent, brutal drug lord.” On these facts the district court had discretion to depart downward if it found that a defendant “had been subject to coercion, even though with effort she could have escaped.” Since the district court failed to make adequate findings, and it was unclear whether it knew it could depart, the case was remanded for resentencing. U.S. v. Johnson, 956 F.2d 894 (9th Cir. 1992), superseded on other grounds by Guideline as stated in U.S. v. Martinez-Martinez, 369 F.3d 1076 (9th Cir. 2004). F.2d 894 (9th Cir. 1992).
9th Circuit reverses upward departure based on large quantity of cocaine. (738) At the time the defendants were sentenced, the drug quantity table provided for a base offense level of 36 for “fifty KG cocaine or equivalent . . . (or more of any of the above).” The 9th Circuit held that the phrase “or more of any of the above” indicates that the sentencing commission considered the circumstances of higher quantities of cocaine and concluded that the level was to be the same regardless of how much more than 50 kilograms was involved. Thus it was improper for the court to depart upward in this case based on the 530 kilograms of cocaine that were involved here. The court gave no weight to the November 1, 1990 amendment assigning higher levels to larger quantities, ruling that the prior law was clear and the “rule of lenity” required it to be interpreted in favor of the defendants. The sentence was reversed. U.S. v. Martinez, 946 F.2d 100 (9th Cir. 1991).
9th Circuit upholds departure in steroids case based on quantity and scope but reverses for improper reliance on role. (738) The steroid guideline, § 2N2.1, contained no distinctions based on quantity. Accordingly the 9th Circuit held that it was proper for the district court to consider the large quantity of steroids distributed in departing upward. Similarly it was proper for the court to depart on the basis of the “scope” of the offense, since the distribution schemes spanned at least 14 months. However, the sentence was reversed because the judge also relied on the defendant’s “role” in the offense. Since role in the offense is governed by § 3B1.1, the case was remanded for resentencing. Judge Rymer dissented, arguing that the departure was based the scope of the operation, not on role in the offense. U.S. v. Shields, 939 F.2d 780 (9th Cir. 1991).
9th Circuit reverses departure where no showing that 46% pure heroin was “of unusually high purity.” (738) Application Note 9 to guideline § 2D1.1 provides that trafficking in controlled substances of unusually high purity may warrant an upward departure, particularly in the case of heroin. Here however, the 9th Circuit found no evidence to support a finding that heroin of 46% purity is of “unusually high purity.” Nor did the district court make such a finding. Although the government purported to rely upon “narcotics experts” for the proposition that 46% purity is “consistent with what is considered to be of good quality,” it provided no factual proof, and in any event its contention that the heroin was either of “good quality” or “fairly high purity” was insufficient to warrant departure. U.S. v. Martinez-Duran, 927 F.2d 453 (9th Cir. 1991).
9th Circuit upholds departure from telephone count guideline. (738) Defendant pled guilty to use of a communication facility in committing a drug offense. Under guideline § 2D1.6, the top of the guideline range was 12 months. The district court departed upward to 20 months, and on appeal, the 9th Circuit affirmed. The district court did not clearly err in deciding that defendant’s actions constituted far more than a mere telephone call. Defendant was present when the instructions to deliver the heroin were given, carried the heroin to the car, and was present at the sale to the DEA agent. U.S. v. Martinez-Duran, 927 F.2d 453 (9th Cir. 1991).
9th Circuit upholds upward departure on telephone count based on amount of cocaine. (738) Defendant pled guilty to using a telephone to facilitate distribution of cocaine, in violation of 21 U.S.C. § 843(b). The district court departed upward from 14 to 24 months, citing evidence in the presentence report that defendant had committed the offense while trying to purchase three kilograms of cocaine. The 9th Circuit upheld the reasonableness of the departure, “in light of the amount of cocaine involved, and the probability of anticipated resale that that amount implies.” U.S. v. Bennett, 900 F.2d 204 (9th Cir. 1990).
9th Circuit holds departure based on weapon and small bag of marijuana was improper. (738) Defendant was convicted of alien smuggling. The district court departed upward from the guidelines based in part upon a firearm and a small bag of marijuana found in the defendant’s residence. The 9th Circuit held that “[i]n the absence of facts that show a relationship between the weapon and the offense, reliance on the finding of a weapon for departure from the guidelines is improper.” Similarly, “the finding of a small bag of marijuana (an infraction in California) is also an inadequate basis on which to depart from the guidelines.” U.S. v. Nuno-Para, 877 F.2d 1409 (9th Cir. 1989).
10th Circuit rejects claim that government manipulated purity of meth to increase sentence. (738) An undercover agent sold defendant 454 grams of a substance that was 70 percent pure meth. At sentencing, the district court found that the substance was 317.9 grams of actual meth and, because this exceeded 100 grams, sentenced defendant to life imprisonment. 21 U.S.C. § 841(b)(1)(A) (requiring a life sentence for offenses involving 100 grams or more of methamphetamine or one kilogram or more of a mixture containing a detectable amount of meth). Defendant claimed the government impermissibly manipulated his sentence by controlling the purity of the substance sold to him, and that his sentence should have been based on the weight of the total mixture rather than the weight of the meth. Under U.S. v. Lacey, 86 F.3d 956 (10th Cir. 1996), a claim of sentencing entrapment is analyzed under the “outrageous government conduct” standard. The Tenth Circuit ruled that defendant failed to meet this standard. He did not claim that he was induced to purchase a purer batch of drugs than he otherwise would. Moreover, the fact that he tested the meth himself and pronounced it “fine” would undermine any such claim. U.S. v. Eads, 191 F.3d 1206 (10th Cir. 1999).
10th Circuit rejects downward departure based on harsher crack sentences. (738) Defendant was convicted of two counts of distributing crack cocaine. He asked for a downward departure because of harsh sentences for crack cocaine despite the only “nominal difference” between crack and powder cocaine. The Tenth Circuit held that the harsher crack penalties was no basis for a downward departure. The issue of the appropriate sentencing levels for crack offenses is not the sort of discrete, individual and case-specific mitigating circumstances justifying a downward departure. U.S. v. McCloud, 127 F.3d 1284 (10th Cir. 1997).
10th Circuit rules Commission’s crack recommendations not basis for downward departure. (738) Defendant argued the district court could depart downward in light of the Sentencing Commission’s recent recommendation to Congress to abolish the 100:1 sentencing differential between crack and powder cocaine. The Tenth Circuit found no basis for a downward departure. Absent ex post facto considerations, a court is bound to apply the guidelines in effect at the time of sentencing. Congress has rejected the Commissions’ recommendation, voting instead to preserve the higher sentences for crack‑related crimes. U.S. v. Maples, 95 F.3d 35 (10th Cir. 1996).
10th Circuit says low price per kilo in government sting did not justify downward departure. (738) Defendants argued that the $15,000 per kilo price offered by the government agent was substantially below the $25,000 per kilo price for cocaine in Wichita. Thus, they claimed sentencing entrapment under note 17 to § 2D1.1, effective November 1993. The Tenth Circuit held that the $15,000 per kilo price was reasonable because the undercover officer was posing as a courier from Los Angeles, where the market price was $12‑18,000, and she testified that the price was presented as a discount for the first transaction in a continuing business relationship. She also testified that an excessively low price in a reverse sting operation would create a lot of suspicion and put the undercover officer at greater risk. U.S. v. Hardwell, 80 F.3d 1471 (10th Cir. 1996).
10th Circuit affirms upward departure which used hypothetical offense level based upon large quantity of drugs. (738) The district court originally departed upward based upon the large quantity of drugs in the case. Defendant received a 120-month sentence, one co-defendant received a 72-month sentence, and a second co-defendant received a 36-month sentence. On defendant’s first appeal, the 10th Circuit agreed that drug quantity was an appropriate basis for departing upward, but found the basis for defendant’s disproportionately large sentence inexplicable. At resentencing, the district court sentenced both defendant and the first co-defendant to 72 months, and the second co-defendant to 36 months. The 10th Circuit affirmed, finding that the district court had done exactly as directed by the appellate court’s first opinion. The court treated the aggravating factor of the amount of drugs — 36 ounces of cocaine base — as a separate crime and calculated a hypothetical offense level and guideline range. The court then found that a sentence in the hypothetical range would be too high because it exceeded the 20-year statutory maximum for the offense, and because of the factors in 18 U.S.C. section 3553 (the nature of the offense, defendant’s ages, the short duration of the conspiracy, and the lack of a history of drug abuse). The appellate court concluded that the degree of upward departure was reasonable and that if it were to remand again for more articulation, the district court would impose the same sentence. U.S. v. St. Julian, 966 F.2d 564 (10th Cir. 1992).
10th Circuit reverses upward departure based on large quantities of precursor drugs. (738) The 10th Circuit reversed an upward departure based in part upon the large quantity of precursor drugs in defendant’s possession. The district judge, in fixing the amount of controlled substances to be considered in determining defendant’s base offense level, estimated the “potential” of defendant’s laboratory by taking into consideration the amount of precursors then on hand. Thus, the district court already considered the amount of precursors involved in setting defendant’s offense level, and an upward departure based on a factor that was already considered in establishing the guideline range in an incorrect application of the guidelines. U.S. v. Eagan, 965 F.2d 887 (10th Cir. 1992).
10th Circuit holds giving drugs to child may be grounds for upward criminal history departure. (738) Defendant pled guilty to conspiracy to distribute methamphetamine. The district court departed upward in offense level because defendant admitted giving drugs to her minor daughter. The 10th Circuit held that the act of giving drugs to one’s minor child might justify an upward departure, but only in criminal history category rather than offense level. Defendant’s prior acts of giving drugs to her child were not part of the crime of conspiracy for which defendant was charged convicted. Therefore, it was not an “extraordinary aspect of the offense for which [she] was charged.” The prior acts were, however, prior criminal conduct which were not considered in her criminal history, and thus could be the basis for making an upward criminal history departure. U.S. v. Thornton, 922 F.2d 1490 (10th Cir. 1991).
10th Circuit upholds upward departure based on drug quantity but remands for explanation of extent of departure. (738) Defendant was convicted of maintaining a crackhouse. Based on its finding that defendant was involved with 36 ounces of cocaine base, the district court departed upward from a guideline range of 30-37 months, and sentenced defendant to 72 months. The 10th Circuit upheld the use of drug quantity as a ground for an upward departure for the crackhouse offense. However, it found that the district court failed to properly explain its reasons for the extent of the departure. Although “the degree of departure is a matter within the sound discretion of the sentencing court,” this does not mean that once a decision to depart has been made, “a sentence may be imposed anywhere between the minimum and maximum authorized by statute.” U.S. v. St. Julian, 922 F.2d 563 (10th Cir. 1990).
10th Circuit upholds upward departure on the basis of large quantity of drugs involved. (738) Defendant pled guilty to maintaining a place for the purpose of distributing cocaine. Because of the quantity of cocaine involved in the offense, the district court departed upward from the guideline sentencing range of 15 to 21 months, and sentenced defendant to 36 months. Guideline § 2D1.8, entitled “Renting or Managing a Drug Establishment,” does not specifically mention the quantity of drugs as a relevant factor in determining the offense level. Defendant argued that the absence of any mention of the amount of drugs reflected the Sentencing Commission’s deliberate rejection of amount as a factor to be considered in sentencing under this section. The 10th Circuit rejected this argument, finding that a factor may be considered and used to justify a departure even though it is not listed under the relevant guideline section. However, the district court failed to explain the reasons for the extent of its departure. Therefore, the 10th Circuit remanded the case to the district court to explain its reasons. U.S. v. Davis, 912 F.2d 1210 (10th Cir. 1990).
11th Circuit says fact that drug quantity was aggregation of small amounts is not a ground for departure. (738) Analogizing to fraud cases, defendant argued that a downward departure should also be available where the offense level determined by counting up the amount of drugs substantially overstates the seriousness of the offense. Even if this were a valid ground for departure, the Eleventh Circuit found a departure was not warranted here, since all of the reasons defendant contended that the drug amount was misleading had been taken into account by the guidelines. Although defendant argued that drug quantity was exaggerated by the witnesses, if the court did not believe the witness testimony, the proper course was to conclude that the fact was not proven, rather than to find the fact and then depart downward because the finding was unreliable. The fact that defendant’s total drug quantity was the aggregate of small amounts possessed from time to time rather than an amount he possessed at one time was also not a ground for departure. Discounting drug quantity because defendant did not possess a large quantity at one time would contradict the guidelines’ basic method of aggregating drug quantities. As for defendant’s claim that he was a “one-man band,” the guidelines take into account whether defendant is a supervisor or manager of others. If the presence of such a factor is basis for enhancement, the absence of such a factor has been taken into account by the guidelines. U.S. v. Pressley, 345 F.3d 1205 (11th Cir. 2003).
11th Circuit rejects departure for pharmacist who knowingly filled forged prescriptions. (738) Defendant, a registered pharmacist, knowingly filled numerous forged prescriptions. Under U.S. v. Lazarchik, 924 F.2d 211 (11th Cir. 1991), a court must base a sentence on the total weight of the pills distributed, rather than the weight of the drug itself. The district court departed downward because: (a) defendant’s conduct was not the target of § 841(a)(1); (b) defendant lost his pharmacist’s license; (c) the computation of the drug weights created a disparity when compared to drugs that are not mixed with other compounds; (d) defendant made only a nominal profit; and (e) defendant had a medical problem that “apparently affected his mental functioning.” The Eleventh Circuit found the first four grounds did not justify a departure and the court did not make adequate findings to support the fifth. Knowingly filling phony prescriptions for persons with no medical need for the drugs falls within the heartland of a drug trafficking offense. A departure based on defendant’s loss of his pharmacist license would negate the enhancement for abuse of his position as a pharmacist. The third ground for departure directly contradicts the rule in Lazarchik. It is not unusual for drug defendants to have difficulty in making a profit. Finally, a “significantly reduced mental capacity” only warrants a departure under § 5K2.13 if linked to the commission of the offense. The district court made no specific findings that defendant’s diminished capacity contributed to his commission of the crime. U.S. v. Steele, 178 F.3d 1230 (11th Cir. 1999).
11th Circuit rejects sentencing entrapment as basis for downward departure. (738) Defendant arranged for a confidential informant to buy a half kilogram of crack from an associate. The district court departed downward by sentencing defendant for conspiring to possess powder cocaine rather than crack on the theory that defendant was “trapped” by the informant into supplying crack rather than powder cocaine. The Eleventh Circuit rejected sentencing entrapment as grounds for a downward departure. The guidelines do not authorize a downward departure for entrapment under circumstances not amounting to a complete defense. Even § 5K2.12 does not authorize departures below a statutorily required minimum sentence. The jury rejected defendant’s entrapment defense. A downward departure for dealing powder cocaine implicitly undermines the jury’s verdict and flies in the face of the jury’s finding that defendant was not entrapped. U.S. v. Miller, 71 F.3d 813 (11th Cir. 1996).
11th Circuit affirms upward departure based upon drug activity not reflected in offense level. (738) The district court found that defendant was accountable for 40 kilograms of cocaine. It then departed upward by one offense level, finding that 40 kilograms underrepresented the quantity of drugs defendant actually distributed. She was “open for [drug dealing] business at least five, if not seven days a week 24 hours a day” and was not just dealing “on the few occasions that the FBI or the Atlanta police happened to make a buy.” The 11th Circuit affirmed. Although district courts may not enhance a sentence on the basis of the same incidents used to determine a base offense level, here the district court referred to criminal conduct different from that included in the base offense level calculations. A departure made on the basis of criminal conduct not taken into account by offense level or criminal history is consistent with the goals of sentencing. The extent of the departure was reasonable. U.S. v. Ledesma, 979 F.2d 816 (11th Cir. 1992).
11th Circuit affirms reasonableness of six level departure for distributing drugs in prison. (738) Defendant smuggled drugs into jail and distributed them to other inmates. Because of the small quantity, defendant’s base offense level was only 12 under section 2D1.1. The district court departed upward six levels by analogy to section 2P1.2(a)(3), which sets a base offense level of six for providing contraband in a federal penal facility in violation of 18 U.S.C. section 1791. The 11th Circuit affirmed, observing that the sentence did not exceed what defendant would have received if he had been convicted under section 1791. The section 1791 count would not be grouped with his drug counts under section 3D2.1(a) or (b), since different societal interests are harmed by the two offenses. Nor would the two counts be grouped on the basis of drug quantity under section 3D2.1(d), since section 2P1.2 is specifically excluded from the operation of section 3D1.2(d). Finally, the two criminal history points that defendant was assessed under section 4A1.1(d) for being under a criminal justice sentence at the time of the offense did not adequately consider his imprisonment status. U.S. v. Ponder, 963 F.2d 1506 (11th Cir. 1992).
11th Circuit upholds upward departure for drug dealer who involved his own children in the offense. (738) Defendant was convicted of several drug offenses. The district court departed upward and sentenced him to life imprisonment without parole. The 11th Circuit upheld the departure as reasonable and consistent with the aims of the guidelines. Among the factors which warranted an upward departure were defendant’s extensive criminal history which was not adequately reflected by his criminal history category, and his willingness to corrupt members of his family, including his own children, by involving them in criminal activities. U.S. v. Christopher, 923 F.2d 1545 (11th Cir. 1991).
11th Circuit upholds departure based on large quantity of pure cocaine involved in underlying offense. (738) Defendants were arrested in connection with the importation and distribution of over 278 kilograms of 91 percent pure cocaine. Pursuant to a plea agreement, each defendant pled guilty to a single count of unlawful use of a communications facility. The applicable guideline range was 6 to 12 months. The district court departed upward to four years, the statutory maximum, on the basis of the large amount of extremely pure cocaine. The 11th Circuit upheld the departure, finding it met the three-part test established in U.S. v. Shuman, 902 F.2d 873 (11th Cir. 1990). First, the large amount of pure cocaine involved was an aggravating circumstance not taken into consideration by the Sentencing Commission. Second, consideration of this factor was consistent with the goals of the guidelines. Finally, since the district court could have sentenced defendants to 15 to 19 years had it been able to sentence defendants on the basis of their actual conduct, the extent of the departure was reasonable. U.S. v. Asseff, 917 F.2d 502 (11th Cir. 1990).
11th Circuit holds that defendant’s involvement of her son in her drug trafficking business, justified 10 month upward departure. (738) According to the district court, the defendant was responsible for her son’s easy access to drugs and for his resulting chemical dependency. The 11th Circuit agreed with the district court that this factor was not taken into consideration by the guidelines and therefore justified an upward departure. The court further found that a 10 month upward departure from the 30 month offense level was reasonable. The court noted that the guidelines call for a two level increase when a victim of sexual abuse is in the custody of the defendant and a four level increase when a defendant has used coercion in transporting a minor for the purposes of prostitution. Here 10 months was the equivalent of a three level increase. The court stated that “although the reasonableness of a departure does not always depend on this sort of mathematical precision,” the departure here was obviously reasonable. U.S. v. Shuman, 902 F.2d 873 (11th Cir. 1990).
11th Circuit holds amount of drugs possessed is grounds for upward departure in simple possession cases. (738) A drug trafficker pled guilty to simple possession. The district court departed 11 months upward from the guideline range based upon the large quantity of narcotics the defendant possessed. Unlike most drug offenses, the guidelines for possession (§ 2D2.1(a)(2)) do not consider the quantity possessed. The fact that the guidelines explicitly consider certain factors in some offenses but do not consider them in others does not prohibit a court from departing on those grounds, given the Commission’s statement that “its failure to specifically reject various factors was designed to permit departure” (§ 5K2.0). Thus, the district court did not err in deciding an upward departure was warranted based upon the quantity of drugs. U.S. v. Crawford, 883 F.2d 963 (11th Cir. 1989).
D.C. Circuit rules defendant ineligible for “reverse sting” departure. (738) An undercover agent offered to sell defendant five kilos of cocaine for $100,000. Defendant was only able to come up with about $20,000, but said that he still wanted to buy three kilos. The agent agreed to sell him one kilo for $20,000 cash, and to front him the second. DEA agents arrested defendant as he left the hotel room with the two kilos. Defendant alleged that his counsel was ineffective for failing to offer expert testimony in support of his request for a “reverse sting” departure under Note 14 to § 2D1.1. The D.C. Circuit found no prejudice, since the reverse sting departure was not applicable to defendant. A reverse sting departure is proper where the government, in setting overly generous price terms, induces a defendant to purchase more drugs than he otherwise could afford and that difference affects the defendant’s sentence. Here, however, drug quantity bore no relation to the defendant’s offense level (beyond setting the floor at 500 grams). Defendant was sentenced as a career offender. Drug quantity here had no effect on defendant’s position in the career offender table. U.S. v. Goodwin, 594 F.3d 1 (D.C. Cir. 2010).
D.C. Circuit says drug price and credit terms in reverse sting did not warrant departure. (738) Defendant made a deal with undercover DEA agents to buy three kilograms of cocaine at a unit price of $20,000 each. At the time, the market price for a single kilogram of cocaine was above $27,000. On the day of his arrest, defendant received two kilograms and paid about $20,000 in cash and $1500 worth of heroin, with the balance to be paid on the second kilogram once he had sold the drugs. In addition, defendant agreed to come back the following day to pay for and collect the third kilogram. Note 14 to § 2D1.1 authorizes a departure in a “reverse sting” where the government agent set a price that was “substantially below the market value” for the drugs, leading the defendant to purchase a “significantly greater quantity” that he otherwise could have purchased. The district court refused to depart under Note 14, and the D.C. Circuit affirmed, agreeing that defendant failed to show that the terms of sale were substantially more favorable than in the market generally. Defendant received a discounted bulk-rate price of $20,000 per kilogram, and bore the burden of showing the discount offered here did not conform to market realities. The credit terms, allowing defendant to walk away with $40,000 worth of cocaine while only paying about $20,000 in cash and $1500 in other drugs, did not change the analysis. “Fronting,” i.e. a sale of credit with the balance expected to be paid from street sales revenues, is a common practice in the drug market. U.S. v. Goodwin, 317 F.3d 293 (D.C. Cir. 2003).
D.C. Circuit holds that defendant failed to preserve departure challenge. (738) Defendant pled guilty to powder cocaine charges and the government dropped a crack charge. However, as a condition of dropping the crack charge, the government required defendant to accept responsibility for 185 grams of crack, which increased his guideline range tremendously. At sentencing, defendant requested a downward departure, claiming he had entered into the plea in order to avoid the statutory mandatory minimum for crack cocaine. The district court refused to depart. Defendant argued that the district court erred by failing to recognize that where consideration of relevant conduct drastically affects a sentence, a district court has authority to depart downward. The D.C. Circuit ruled that defendant failed to preserve this argument for appeal. At most, defendant asked the district court to exclude crack cocaine from its sentencing consideration. However, because defendant had accepted responsibility for the crack, the district court had no choice but to include crack in its sentencing calculation unless the guidelines provided a basis for departure. The district court’s failure to depart sua sponte was not plain error. U.S. v. Vizcaino, 202 F.3d 345 (D.C. Cir. 2000).
D.C. Circuit reverses downward departure based on addiction, harshness of guidelines, and police conduct. (738) Defendant sold cocaine base for about three years before finally being arrested. An addict himself, the suppliers paid defendant in drugs for his personal use. The D.C. Circuit reversed a downward departure based on defendant’s addiction to drugs, the judge’s personal opinion that the guidelines sentencing range was too harsh, and police conduct in making 3 purchases before arresting defendant. Section 5H1.4 states that drug or alcohol dependence or abuse is not a reason for a downward departure. Because defendant’s addiction did not remove his case from the heartland of crack distribution cases, the district court was required to impose a sentence within the guideline range notwithstanding its personal opinion that the guideline range was disproportionate and unduly harsh. Finally, the fact that police did not arrest defendant after the first or second purchase could not, without more, provide grounds for a downward departure. Police are permitted to wait until a defendant has made multiple sales before arresting him. Moreover, the third sale alone crossed the 50-gram sentencing threshold. U.S. v. Webb, 134 F.3d 403 (D.C. Cir. 1998).
D.C. Circuit upholds refusal to depart downward in reverse sting case. (738) Defendant was held responsible for two kilograms of cocaine that his co-conspirators purchased from an undercover agent. He argued that he should have received a downward departure based on the “reverse sting” provision of note 15 to § 2D1.1. This authorizes a downward departure where the government sets a price for the controlled substance that is substantially below its market value. The D.C. Circuit upheld the refusal to depart since the court recognized its authority to depart and did not make a clearly erroneous factual finding. The court found that even if note 15 were applicable to defendant, it would not make a difference in the two kilograms of cocaine for which he was accountable. Thus, the court must have found either that the undercover agent did not set the price at an artificially low level or that defendant did not buy more than he otherwise would have because of the depressed price. Neither of these findings would have been clearly erroneous. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit holds that court understood its authority to depart. (738) Defendants were police officers caught in a reverse sting after providing “protection” to an undercover agent posing as a drug dealer. In sentencing defendants to more than 49 years, the court said it did “not believe that the length of the sentence equates to the wrongness of the actions of the defendants.” However, it refused to depart because it found no principled basis for departure. Defendants argued that the district court misunderstood its authority to depart based on a combination of factors, no one of which would be a ground to depart. The D.C. Circuit ruled that the court properly understood its authority to depart. The court considered the totality of the circumstances, stating that none of the factors identified, either individually or collectively, made the case sufficiently unusual. The district court properly held that the lack of a connection between the officers’ conduct and the amount of drugs involved was not a basis for departure. Under U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995), sentencing entrapment and improper sentence factor manipulation are not grounds for departure. U.S. v. Washington, 106 F.3d 983 (D.C. Cir. 1997).
D.C. Circuit rejects downward departure based on Commission’s proposed crack guidelines. (738) Defendant asked the court to depart downward based on the Sentencing Commission’s report to Congress recommending the elimination of the sentencing disparity between crack and powder cocaine. Relying on U.S. v. Anderson, 82 F.3d 436 (D.C. Cir. 1996), the D.C. Circuit held that the Sentencing Commission’s report was not grounds for a downward departure. U.S. v. Smart, 98 F.3d 1379 (D.C. Cir. 1996).
D.C. Circuit reaffirms use of 100:1 crack to powder cocaine sentencing ratio. (738) Defendant was convicted of trafficking in cocaine base. He argued that the district court should have considered a downward departure under § 5K2.0 based on the Sentencing Commission’s report criticizing the present 100:1 ratio of cocaine base to cocaine powder. The D.C. Circuit rejected this argument in light of U.S. v. Anderson, 82 F.3d 436 (D.C. Cir. 1996). U.S. v. Baylor, 97 F.3d 542 (D.C. Cir. 1996).
D.C. Circuit rules that flaws in 100:1 crack cocaine ratio do not justify downward departure. (738) Defendants argued that flaws in the 100:1 ratio of crack to powder cocaine justified a downward departure under 18 U.S.C. § 3553(b), pointing out that the Sentencing Commission recently concluded that the 100:1 ratio was not logically supportable. Although Congress rejected the proposed 1:1 ratio proposed by the Commission in 1995, Congress suggested the Commission “try again” with the guidance that crack sentences should generally exceed powder cocaine sentences. The District of Columbia Circuit ruled that the Commission’s and Congress’s recent actions did not justify a downward departure. Section 3553(b) requires the court to consider only the guidelines, policy statements and official commentary of the Sentencing Commission. The Commission did not characterize its proposal to Congress as any of these, and therefore it had no more weight than a report by a learned society. Congress’ direction to the Commission to come up with an alternative was not a change in the law. Judge Tatel concurred and Judge Wald dissented. U.S. v. Anderson, 82 F.3d 436 (D.C. Cir. 1996).
D.C. Circuit suggests departure where defendant does not intend to sell drugs near school. (738) Defendant was convicted of possessing drugs with intent to distribute within 1,000 feet of a school in violation of 21 U.S.C. section 860(a). He argued that the evidence was insufficient to establish that he had intended to distribute the drugs within 1,000 feet of the school. The D.C. Circuit held that the intended place of distribution is irrelevant under the statute; all that is required is proof that defendant intended to distribute the drugs somewhere, combined with proof that the drugs were possessed within 1,000 feet of a school. The court suggested, however, that a downward departure might be appropriate in an unusual case — for example, where a defendant possessed drugs while on a train or subway that passes within 1,000 feet of a school. U.S. v. McDonald, 991 F.2d 866 (D.C. Cir. 1993).
Article addresses departures based on childhood abuse. (738) A student author discusses a 1992 Ninth Circuit case allowing downward departures based on defendant’s childhood abuse and addresses other cases involving similar issues. A 1992 amendment does not preclude departures based on childhood abuse. Rather, § 5H1.12 is designed to preclude departures based on the more nebulous standard of lack of youthful guidance. An earlier draft of the guideline would have specifically precluded departures based on childhood abuse, suggesting that the final version does not preclude such departures. Recent Development, Childhood Abuse as a Mitigating Factor in Federal Sentencing: The Ninth Circuit Versus the United States Sentencing Commission, 46 Vanderbilt L. Rev. 1333-54 (1993).
Article examines 1993 amendment on departures for mitigating role in drug cases. (738) Thomas W. Hutchison outlines the history of the 1993 application note to § 2D1.1 that permits downward departures for certain drug defendants who would qualify for a mitigating role adjustment as well. Several difficulties attend the effort to construe the amendment. Moreover, to the extent the amendment seeks to limit the court’s power to depart, it conflicts with the general statutory authorization for departures. The Commission would have been better advised to have passed an earlier proposal that would have capped sentences at 36 for drug defendants who qualify as a minor or minimal participant. Thomas W. Hutchison, The Commission’s Consideration of Culpability Departures in Drug Trafficking Cases, 6 Fed. Sent. Rptr. 99-101 (1993).
Commission authorizes departure for minimal participants in large drug cases. (738) In an amendment effective November 1, 1993, the Sentencing Commission amended the Commentary to section 2D1.1 to provide that where the quantity of drugs has increased the offense level to greater than 36, a downward departure is permitted “to a sentence no lower than the guideline range that would have resulted if the defendant’s Chapter Two offense level had been offense level 36,” if the court finds that the offense level overrepresents the defendant’s culpability in the criminal activity, unless the defendant (1) has a prior felony conviction for a crime of violence or controlled substance offense; (2) qualifies for an adjustment under 3B1.3 (Abuse of Position of Trust or Use of Special Skill); (3) possessed or induced another participant to use or possess a firearm in the offense; (4) had decision-making authority; (5) owned or financed the drugs; or (6) sold the drugs or negotiated the sale.
Commission permits departure if amount in “reverse sting” exceeds market price. (738) In an amendment effective November 1, 1993, a new note 17 was added to the Commentary to 2D1.1 for “reverse sting” operations. The court may depart downward if it finds that the government agent set a price for the controlled substance that was substantially below the market value, thereby causing the defendant to purchase an amount he otherwise could not have afforded.