JAMES O. BROWNING, District Judge.
The Court sets forth the factual background in two parts. First, it discusses Reyes, her offense, and her arrest. Second, it discusses her allegations about the drug trafficking organization with which she and her half-sister were involved and about the details of the methamphetamine trade.
At the time of the offense, Reyes was nineteen years old; at the time of her sentencing, she was twenty years old. See PSR ¶ 467, at 9. She "dropped out of high school after the 7th grade when she became pregnant with her first daughter." Sentencing Memorandum at 7. Reyes now has three children. See Supplemental Sentencing Memorandum and Motion for a Downward Variance at 6, filed December 12, 2013 (Doc. 57)("Supplemental Sentencing Memorandum"). Reyes' "daughter suffers from severe asthma which at times requires hospitalization and frequent medical treatment." PSR ¶ 82, at 15-16. Moreover, Reyes "reports being a vital resource in being a caregiver for her mother [—] who resides in the same apartment complex [—] as her mother suffers from heart issues, diabetes and high blood pressure." PSR ¶ 82, at 16. Although Reyes was not married at the time of the offense, she married on October 12, 2012. See Sentencing Memorandum at 6. Reyes has had no contact with the criminal justice system throughout her life. See PSR ¶¶ 40-45, at 9; Sentencing Memorandum at 9. With respect to Reyes' history and characteristics, the United States argues that, "[a]lthough [she] has no prior documented criminal history, she admitted that she has made two prior transports of drugs." Response at 3.
Reyes points out that her half-sister recruited her into this crime and contends
On June 21, 2012, a Drug Enforcement Agency ("DEA") agent intercepted Reyes and her companion, Christopher Reyes, at a Greyhound Bus Station in Albuquerque, New Mexico. See Presentence Investigation Report ¶ 11, at 4, disclosed February 6, 2013 ("PSR"). With their consent, the DEA agent searched their luggage and discovered a substance that later tested positive for methamphetamine. See PSR ¶¶ 12-20, at 6. The substance weighed 2.35 kilograms. See PSR ¶ 20, at 6.
According to Reyes, Mexican drug operations "import[] large quantities of methamphetamine into the United States," and "utilize[] young women as couriers and maintains bank accounts in the United States." Sentencing Memorandum at 4. Reyes asserts that such an organization controlled the methamphetamine that she carried. See Sentencing Memorandum at 4. Reyes asserts that drug organizations of this sort now actively recruit young, "desperately poor women to serve as couriers. . . because they are less likely to be the subject of police scrutiny, and if apprehended, are easily dispensable," and that she was caught up in that recruiting strategy. Sentencing Memorandum at 4. Reyes states that she was "a courier at the very bottom of the enterprise," and that the organization recruited her "for a paltry profit because, given her poverty, the comparatively modest remuneration was of real value." Sentencing Memorandum at 5.
Reyes asserts that "[t]he cost of the drug to the owner is nominal and the cost of loss of any individual load transported by a courier is minimal," and argues that, "[a]s a result, very low level couriers can be entrusted with great quantities of methamphetamine without the quantity bearing any relationship to their importance to the organization." Sentencing Memorandum at 5. Reyes contends that "[t]he risk to the organization is not the loss of the street value of methamphetamine, which may be fairly high. Rather, the risk for the organization is the cost of the product, which is very low." Sentencing Memorandum at 5.
On July 10, 2012, Plaintiff United States of America charged Reyes with Possession with Intent to Distribute 500 Grams and More of a Mixture and Substance Containing Methamphetamine and Aiding and Abetting in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. See Indictment, filed July 10, 2012 (Doc. 17). Reyes pleaded guilty to the Indictment. See Plea Agreement, filed November 14, 2012 (Doc. 36).
In the Plea Agreement, the United States and Reyes stipulated that Reyes was a minor participant in the criminal activity underlying the agreement, and that, therefore, she "is entitled to a reduction of two levels from the base offense level as calculated under the sentencing guidelines." Plea Agreement ¶ 10.1, at 5. The Plea Agreement also acknowledged that Reyes might be eligible for the "safety valve" provision in 18 U.S.C. § 3553(f)(1)-(5) and U.S.S.G. § 5C1.2, but did not resolve that issue. See Plea Agreement ¶ 5, at 3.
Reyes points out that she "was released on her own recognizance on June 25, 2012," and that she "has lived since then in Phoenix, Arizona, and complied with the standard conditions of release. She has been fully compliant, without any incidents." Sentencing Memorandum at 7. Reyes submits that, during pre-trial release, she "has assiduously applied herself to her education," attending general educational development ("GED") classes; although she is not yet prepared to take the GED test, her "instructor describes [her] as a hard worker who is making `great progress.' The pre-sentence report notes this as a basis for a variance." Sentencing Memorandum at 7 (internal citations omitted). Reyes submits that this "experience has transformed" her: "As she noted to the pre-sentence reporter, `I really liked going to school. I am learning so much stuff that I had never learned.'" Sentencing Memorandum at 7. Reyes asserts that she "has responded well to structure imposed by pre-trial services and has developed a routine by which she has begun to develop a stake in society." Sentencing Memorandum at 8. Reyes submits that, despite her good start in GED courses, "[s]he was forced to discontinue her GED efforts this year when her pregnancy became problematic." Supplemental Sentencing Memorandum at 6. Reyes has, after the birth of her daughter, worked for a temporary employment agency, and, "[o]n December 2, 2013, she began a new position working at Signature Breads and earning $7.80 per hour." Sentencing Memorandum at 6 (citing Letter from Premier Employee Solutions to To whom it may concern, executed November 22, 2013, filed December 12, 2013 (Doc. 58)).
In her Sentencing Memorandum, Reyes reminds the Court that it must consider the factors in § 3553(a) that Congress laid out for courts to consider in deciding an appropriate sentence. See Sentencing Memorandum at 1-2. Reyes concedes that her Guideline range is appropriately calculated at 51-63 months, but points out that her plea agreement allows her to seek
Reyes concedes that statistics to support that assertion "are difficult to collect" and that her "[c]ounsel has not been able to find studies that separate drug arrests by gender and by charge, such as simple possession versus distribution quantities." Sentencing Memorandum at 4-5. Reyes submits that "[i]ncarceration rates for women from 1985 to 2006, however, rose 300%. Drug offenses constitute the bulk of these increase[s]." Sentencing Memorandum at 5 (citing Randall G. Shelden, Sentencing Patterns, the War on Drugs and Women at tbl. 1, http://www. sheldensays.com/res-nineteen.htm). Reyes' counsel also states that, "[a]necdotally, lawyers for the Federal Defenders Office in Albuquerque have seen a significant increase in the use of women as couriers." Sentencing Memorandum at 5.
Reyes states that the PSR notes her performance in pursuing her GED "as a basis for a variance," Sentencing Memorandum at 7 (internal citations omitted). Reyes also submits that, although "she had little direction and no real prospects" when her half-sister drew her into criminal activity, "[s]he comes to sentencing in a much different posture." Sentencing Memorandum at 7. Reyes contends those who commit courier crimes have little economic attachment to society, "are generally underemployed, have minimal skills and [have] no sense that there is a place or future for them in the legal economy." Sentencing Memorandum at 8. "To change that mentality, which is particularly susceptible to the temptations of crime," Reyes contends that "a person must feel that there is a possibility for a decent life from lawful pursuits. As long as there is no expectation that one can improve one['s] circumstances, people will be at risk of turning to desperate, illegal options." Sentencing Memorandum at 8. According to Reyes, she is only now appreciating that she can change her poverty and marginalization, and that she, therefore, "now presents a better prospect for rehabilitation and future productivity than she might have at the time of her arrest." Sentencing Memorandum at 8.
Turning to the Guidelines, Reyes suggests that they "are founded upon the theory that there is a direct relationship between the quantity of drugs possessed and the significance of the possessor within the enterprise." Sentencing Memorandum at 5. Reyes argues that this rationale does not apply in the methamphetamine context, because it "is now manufactured by large efficient factories in Mexico which operate with little fear of apprehension," and with very low manufacturing costs. Sentencing Memorandum at 5. Accordingly, Reyes submits that "[t]he premise underlying U.S.S.G. § 2D1.1 is misplaced. The quantity of drugs bears no significant relationship to the importance of the defendant. Therefore, Ms. Reyes' drug quantity base offense level of [2]4, grossly overstates her real importance in the economy of methamphetamine trafficking." Sentencing Memorandum at 6.
Reyes concedes that other reductions— those "pursuant to U.S.S.G. [§§ ] 2D1.1(a)(5)(B) and 3B1.2 (mitigating role)"—have "reduced her base offense level by 5 levels." Sentencing Memorandum at 6. Reyes insists, however, that even the adjusted level of 29 "over represents Ms. Reyes' role in an organization which the case agent described as `only a courier'." Sentencing Memorandum at 6
Turning to the sentencing factors, Reyes submits that, while a Guideline sentence might be appropriate "for an involved drug dealer who had a proprietary interest in the shipment," that rational does not extend to her: she "was called [sic] from the most susceptible, vulnerable, and targeted population to serve as a drug courier," and, accordingly, "[a] guideline sentence would not adequately take into account her role as the most unsophisticated and unconnected courier for those reaping the greatest profits from her efforts." Sentencing Memorandum at 6. Moreover, she points out that "she has realized the seriousness of her offense and has disassociated herself from the criminal element." Sentencing Memorandum at 6-7. Reyes argues that a less-than-Guideline sentence would adequately deter her and reflect the seriousness of her offense, and that, "[g]iven her exceedingly low level in the drug organization and her renunciation of even that activity," a lower sentence "will adequately protect the public from any further crimes of the defendant." Sentencing Memorandum at 7.
With this backdrop, Reyes suggests that she has taken it upon herself to pursue education and training, "firmly grasp[ing] the rehabilitations offered her which, ironically, may not have been so apparent before her arrest." Sentencing Memorandum at 8. Reyes contends that a long sentence would compromise her "position as an expectant mother and current care giver for two young children." Sentencing Memorandum at 8. She argues that the fact "[t]hat she has responded well to a structure similar to that which she will face upon supervised release all bodes well for the future and diminishes the need for a guideline sentence to protect the public from future crimes." Sentencing Memorandum at 8.
Reyes also points out that she not only lacks criminal history points, but she also "has had no contact with the criminal justice system in any respect throughout her life," and argues that "[ ]her complete lack of sophistication or experience with the criminal justice system indicates that not only is her instant crime a relatively aberrant act, but that her prospects for rehabilitation are exceptionally good." Sentencing Memorandum at 9. Reyes submits that she "is a naive, essentially harmless person," and that she has never "been subject or even aware of the extraordinary severity of federal drug crime sentences." Sentencing Memorandum at 9. Accordingly, Reyes submits that her "knowledge of the criminal sanction is so scant that the general deterrent value of those sanctions was not of significant value." Sentencing Memorandum at 9. She continues:
In light of those facts, Reyes suggests that the Court must "consider the need for the sentence to reflect the seriousness of the offense and provide just punishment," as well as "the need for the sentence imposed... to afford adequate deterrence to criminal conduct." Sentencing Memorandum at 9. Reyes states that her "absolute lack of any involvement with the criminal authorities means that the deterrent value of an imposed criminal sanction has not been tested upon her and found to fail," in contrast with one who has had much contact with the criminal justice system, who "can be seen to have been forewarned in a most direct and hopefully meaningful fashion." Sentencing Memorandum at 10. Reyes argues that imposing a severe sentence would be unnecessary, given that she has not been arrested or "had direct contact with the criminal sanction." Sentencing Memorandum at 10. In sum, Reyes contends that, given her
Sentencing Memorandum at 10.
In the Government's Response to Defendant Kayla Marie Reyes' Sentencing Memorandum and Motion for a Downward Variance (Doc. 45), filed March 28, 2013 (Doc. 47)("Response"), the United States concedes that a variance may be justified, but opposes the variance down to 15 months that Reyes suggests. Response at 1. The United States first reminds the Court that Reyes pled guilty to "Possession with Intent to Distribute 500 Grams and More of a Mixture and Substance Containing Methamphetamine. If the Defendant had been convicted at trial, she faced a guideline imprisonment range of 120 months." Response at 1. The United States asserts that, when a DEA agent encountered Reyes at a bus station, Reyes consented to a search of her luggage, in which the DEA found "2.35 gross kilograms of Methamphetamine." Response at 2.
With respect to the nature and circumstances of Reyes' offense, the United States suggests that Congress expressed its views of the seriousness of the crime of possession with intent to distribute a controlled substance "by imposing a penalty of ten years to life in prison for those convicted of 21 U.S.C. § 841(a)(1) and (b)(1)(A)." Response at 2. With respect to Reyes' history and characteristics, the United States argues that, "[a]lthough [she] has no prior documented criminal history, she admitted that she has made two prior transports of drugs." Response at 3. The United States notes that Reyes is working to obtain her GED. See Response at 3. In response to the need for the Court to impose a sentence that promotes respect for the law, provides just punishment, affords adequate deterrence, and protects the public from any future crimes by Reyes, the United States contends that a sentence within the Guideline range of 51-63 months "is a reasonable sentence based upon the Defendant's eligibility for the `safety valve' provision and role adjustment as a minor participant." Response at 3. The United States asserts that, to avoid unwarranted sentencing disparity, a Guideline sentence is the best approach, and that the Guideline sentence of between 41 and 51 months is appropriate. See
In her Supplemental Sentencing Memorandum, Reyes asserts that sentencing has been delayed on her motions for continuance based on "her pregnancy, the birth of her daughter and the need to breast feed her newborn. During this period several additional factors arose which are pertinent to the requested variance." Supplemental Sentencing Memorandum at 1. The first fact relates to the nature and circumstances of the offense: Reyes points out that her half-sister recruited her. See Supplemental Sentencing Memorandum at 1. She further asserts that, together with her "extraordinary progress on pre-trial release," her break from her criminal colleagues "certainly augers well for her future law abiding behavior." Supplemental Sentencing Memorandum at 2. Further, Reyes argues that, given "her lack of prior record" and her "amenability to supervision and renunciation of her criminal activity," she is "unlikely to repeat her criminal conduct, and the Court need not, therefore, be concerned with protecting the public from future crimes." Supplemental Sentencing Memorandum at 2-3.
Reyes next returns to an important theme from her Sentencing Memorandum: "[G]iven the global nature of the manufacture of methamphetamine, the quantity of methamphetamine she possessed over represents the significance of her role in the drug trade." Supplemental Sentencing Memorandum at 3. In additional support for her thesis, Reyes points to United States v. Diaz, in which Judge Gleeson, criticized "the treatment of drug couriers under the sentencing guidelines." Supplemental Sentencing Memorandum at 3. In Reyes' telling,
Supplemental Sentencing Memorandum at 3-4. Reyes suggests that the Department of Justice ("DOJ") shares Judge Gleeson's assessment:
Supplemental Sentencing Memorandum at 4. Reyes submits that whether a courier carries a large quantity "bear[s] no relationship to a courier's role in the organization." Supplemental Sentencing Memorandum at 4. Reyes continues:
Supplemental Sentencing Memorandum at 4-5.
Reyes further elaborates on her post-arrest rehabilitation argument in her Sentencing Memorandum, stating that she "is the epitome of the poor, unsophisticated women who become caught up as low level couriers in the drug trade." Supplemental Sentencing Memorandum at 5. She reiterates her arguments from her Sentencing Memorandum, and adds that she had very young children and that she lived "in a one bedroom, one bath apartment." Supplemental Sentencing Memorandum at 5. She
Reyes comments that a
Supplemental Sentencing Memorandum at 5. She also argues that, "[m]odest as [her new income] this may seem," she argues that, "for a 20 year old with no skills or employment history it is a breakthrough development." Supplemental Sentencing Memorandum at 6. Reyes further points out that she married on October 12, 2012, and that "she and her husband are raising their new baby girl, Faith Reyes-Romero, and her two other children." Supplemental Sentencing Memorandum at 6. She states that her husband works for the same temporary employment agency that she does. See Supplemental Sentencing Memorandum at 6. She continues:
Supplemental Sentencing Memorandum at 7.
Reyes also argues that incarcerating her would be expensive—costing "approximately $28,893 annually"—and that supervised release would be cheaper. Supplemental Sentencing Memorandum at 7. She contends that incarceration, although sometimes necessary, "is also an expensive response that should be employed sparingly in a time of federal austerity." Supplemental Sentencing Memorandum at 7. She submits that, "[u]nless a lengthy term of incarceration is clearly mandated by the nature of the crime or the offender, this may be a time to opt for more cost effective options." Supplemental Sentencing Memorandum at 7. She argues that "poverty, her children's needs and her perceived dearth of economic options" drove her crime, and that, without those circumstances, she probably would not "find her way to the criminal courts," particularly given her "complete lack of criminal history." Supplemental Sentencing Memorandum at 7. Reyes maintains that, "[a]s someone who has proven her amenability
Reyes contends that nothing in her background before this crime merits a Guideline sentence, and that
Supplemental Sentencing Memorandum at 8.
Reyes also asks the Court to "recommend to the Bureau of Prisons that she be designated to FCI Phoenix (Female Satellite Camp) to be near her family and children, all of whom reside in Phoenix. She requests voluntary surrender." Supplemental Sentencing Memorandum at 9.
The Court held a sentencing hearing on January 6, 2014. See Transcript of Hearing, taken January 6, 2014 ("Tr.").
Upon the Court's invitation, Reyes argued for a downward variance. See Tr. at 2:23-3:4 (Court, Winterbottom). Reyes asserted that she is twenty years old, has three children, and has "absolutely no criminal history or previous contact, for that matter, with the law enforcement system, nothing whatsoever." Tr. at 3:7-10 (Winterbottom). Reyes asserted that she is "the most marginally placed person in drug commerce," that she is "naïve" and "unsophisticated," and that "she's basically a somewhat harmless mule in a much larger universe, the extent, severity and cruelty of which she had no idea when she first started to transport this methamphetamine that brings her before the Court." Tr. at 3:10-16 (Winterbottom). Reyes asserted that "nobody on this side of the bench is strenuously opposing a variance," noting that the USPO "has recommended a variance of 24 months" and that, even though the United States believes that the floor of the variance should be thirty months, it nonetheless agreed that the facts may justify something of a variance. Tr. at 3:17-24 (Winterbottom). Reyes
Tr. at 7:4-14 (Winterbottom).
Reyes then pivoted to discuss other bases for a variance, beginning with specific deterrence: she points out that she committed this crime when she was nineteen years old and lacked any criminal history. See Tr. at 7:22-8:11 (Winterbottom). Moreover, she argued, she did well in her GED training until she became pregnant, got married, and started working; she nonetheless asserted that her new full-time employment "is an enormous, enormous new factor in her life that wasn't present when she committed this crime." Tr. at 8:12-19 (Winterbottom). She clarified that, although she had started work with Signature Breads, she has since "started a job in a recycling plant, and is now working full-time" in addition to caring for her children, a responsibility she shares with her husband. Tr. at 8:19-23 (Winterbottom).
Reyes' counsel also asserted that, after three decades of working in criminal justice, he has "become more and more convinced that the key [is] establishing in the defendant's mind a stake in the economy, in the fabric of law abiding life," and stated that such defendants needed the structure that Pre-trial Services provided Reyes; in his view, Reyes now had such a structure to emerge from the life of poverty and idleness that led her to this crime. Tr. at 9:22-10:19 (Winterbottom). He asserted that Reyes had blossomed through pre-trial services, and that her life "is on an upward trajectory for the first time" and that the Court should consider that
With respect to general deterrence, Reyes stated that, if the forty-year war on drugs "hasn't exacted a general deterrence, then the incremental general deterrent effect of [her] sentencing is going to be exceedingly" de minimis. Tr. at 11:1-9 (Winterbottom). She also points out that she is a mother of three children, and that "all the literature shows that when parents leave children and leave them to the care of others" while imprisoned, "the prospects for the child's success diminish. Tr. at 11:9-14 (Winterbottom). She asserts that the Court should consider the impact on her family, that she is "a loving, supportive and appropriate mother for the most part," with the exception of this case, and that the Court should consider reducing her sentence on the basis of her generally good parenting. Tr. at 11:14-12:1 (Winterbottom).
Reyes asked the Court to sentence her to a period of 15 months: in her view, that length is a significant period of incarceration under the circumstances, and it will give her time to finish her GED. See Tr. at 12:2-6 (Winterbottom). She submits that she has made considerable progress towards that goal and that, although "[s]he is not a gifted scholar by any stretch of the imagination ... she was an enthusiastic one, and[,] ... with the discipline and the structure of the Bureau of Prisons for a not exceedingly long[ ]term she will be able to accomplish that task." Tr. at 12:6-13 (Winterbottom). Reyes also reiterated her request for voluntary surrender and to be assigned to the women's prison in Phoenix: according to her, if the Court grants voluntary surrender, she will be more likely to be eligible for that prison, "which is the only women's facility in Arizona." Tr. at 12:14-25 (Winterbottom). She noted that, given her family's poverty, it would be difficult for her family to visit her if she is not incarcerated in Phoenix. See Tr. at 13:3-11 (Winterbottom).
The Court then asked Reyes if she wished to speak. See Tr. at 13:20-24 (Court). Reyes apologized and stated that living with her mistakes has made her a better person than she was when she committed the offense. See Tr. at 13:25-2 (Reyes). She stated that time away from her children was difficult. See Tr. at 14:2-3 (Reyes). She continued: "Me just leaving them now is very hard, knowing they are just outside. My daughter knows what's happening, it's just, I don't know, I did make a mistake and I apologize for it. That's all I can say." Tr. at 14:3-7 (Reyes). The Court asked if Reyes had any assets; Reyes said she did not. See Tr. at 14:8-19 (Court, Reyes).
The United States reiterated its Response's request that the Court impose a sentence at the low end of the Guidelines and that, if the Court varies, it impose a sentence no lower than thirty months. See Tr. at 15:20-16:4 (Brawley). The United States contended that Reyes' offense is significant: "The defendant possessed 2.35 kilograms of a mixture and substance of methamphetamine. It only takes half of a kilogram to trigger a 10 to life sentence." Tr. at 15:5-8 (Brawley). The United States conceded that Reyes has no criminal history, but noted that Reyes benefits from the safety-valve reduction and from the minor-role reduction, which "dropped her range which otherwise would have been at least 120 months down to 51 to 63 months." Tr. at 15:15:9-16 (Brawley). The United States acknowledged that Reyes' family would face hardships, but stated that "virtually every ... defendant that crosses through th[is] courtroom has children[,] has a family that is impacted." Tr. at 15:17-22 (Brawley). The United States also pointed out that Reyes committed
Tr. at 16:11-24 (Brawley).
The Court then stated the sentence. See Tr. at 17:3-6 (Court). The Court accepted the plea agreement, the PSR's factual findings, and the PSR's Guideline calculations. See Tr. at 17:6-14 (Court). The Court stated that Reyes meets the criteria of 18 U.S.C. § 3553(f)(1)-(5), and that the Court would, therefore, impose the sentence pursuant to U.S.S.G. § 5C1.2 without regard to the statutory mandatory minimum. See Tr. at 17:17-22 (Court). The Court confirmed that the offense level was 24 and that the criminal history category was I, yielding a Guideline imprisonment range of 51-63 months. See Tr. at 17:22-24 (Court). The Court noted that it had considered the Guidelines, but had considered other factors as well, and concluded that the punishment that the Guidelines set forth is not appropriate for Reyes. See Tr. at 17:24-18:10 (Court). The Court noted certain factors that put downward pressure on the Guidelines range: (i) Reyes' age; (ii) her lack of criminal history; (iii) she is a mother of three children, on whom her sentence would have an impact; (iv) she not only had no criminal history, but had no contact with law enforcement, juvenile or otherwise, which shows that her offense was an aberration; (v) she had a minor role, both in the offense and also in the drug world generally
Tr. at 21:24-22:7 (Court). The Court indicated that it did not believe that it should consider cost as a way of evaluating the kinds of sentences available, because that statutory factor asked what sorts of punishments "are available to promote the factors in 3553(a), not really get the Court drug into worrying about how it's going to be paid for.... I think that primarily is the role of the political branch and the executive branch, rather than judges." Tr. at 22:7-15 (Court).
Returning to Reyes, the Court listed the following factors: (i) the seriousness of the offense, particularly given that the amount of methamphetamine Reyes carried would impose a mandatory minimum, which reflects Congress' concern about this crime
The Court noted that certain sentencing factors in 18 U.S.C. § 3553(a)(1) warrant a sentence outside of the Guideline range. See Tr. at 27:10-15 (Court). The Court indicated that three statutory factors guided the Court's conclusion: the nature and circumstances of the offense, and the history and characteristics of the defendant, see 18 U.S.C. § 3553(a)(1); the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment, see 18 U.S.C. § 3553(a)(2)(A); and the need to afford adequate deterrence to criminal conduct see 18 U.S.C. § 3553(a)(2)(B). See Tr. at 27:15-23 (Court). The Court noted that Reyes was nineteen years old when she committed the crime, that she is the primary caregiver for three children under the age of three, one of whom suffers from severe asthma, which sometimes requires urgent and frequent medical care, that she also is an important caregiver for her mother, who suffers from several significant health conditions. See Tr. at 27:23-8 (Court). The Court noted that Reyes dropped out of school after seventh grade, when she became pregnant with her first child, and also acknowledged that she had recently restarted her education—attempting to obtain her GED—but that she had discontinued her education after she suffered complications in her recent pregnancy. See Tr. at 28:8-13 (Court). The Court noted that, after her daughter's birth, Reyes began working and continues to work. See Tr. at 28:13-16 (Court). The Court also stated that Reyes has been complying
Accordingly, as to indictment No. CR 12-1695-001 JB, the Court committed Reyes to the Bureau of Prisons' custody for 30 months. See Tr. at 29: 5-8 (Court). The Court also placed her on supervised release for two years, imposing the standard conditions of supervised release and the following mandatory conditions: (i) the defendant shall not possess a firearm, ammunition, destructive device or any dangerous weapon; and (ii) the defendant shall cooperate in the collection of DNA as directed in the statute. See Tr. at 29:8-15 (Court). The Court also imposed the following special conditions: (i) the defendant must participate in educational or vocational program as approved by the probation officer; this special condition is imposed as it will assist the defendant to develop marketable skills, to gain and maintain employment, and to reintegrate back into society; (ii) the defendant must submit to a search of her person, property or automobile under her control to be conducted in a reasonable manner at a reasonable time for the purpose of detecting illegal substances, weapons or any other contraband at the direction of the probation officer; (iii) the defendant must inform any residents that the premises may be subject to a search; this special condition is imposed as the defendant was found to be in the possession of illegal substances; (iv) the defendant must participate in and successfully complete an outpatient mental health treatment program approved by the probation officer; the defendant may be required to pay a portion of the cost of this treatment to be determined by the probation officer; this special condition is imposed as the defendant reported having emotional difficulty dealing with her miscarriage. See Tr. at 29:15-30:14 (Court). Based on Reyes' lack of financial resources, the Court did not impose a fine. See Tr. at 30:14-16. The Court required, however, the defendant to pay a special assessment of $100.00, which was due immediately. See Tr. at 30:16-17 (Court). Upon the Court's request, neither counsel offered a reason that the Court should not impose the sentence as the Court stated it beyond that which they had already argued. See Tr. at 30:17-23 (Court, Brawley, Winterbottom). Accordingly, the Court imposed the sentence. See Tr. at 30:23-25 (Court).
The Court then asked the parties to discuss voluntary surrender, asking whether it had discretion or whether 18 U.S.C. § 3143(a) limited its discretion; the United States was not sure. See Tr. at 32:20-25 (Court, Brawley). The USPO stated that the statute would allow the Court to release Reyes if it were clearly shown why her detention would not be appropriate. See Tr. at 33:1-9 (Probation Officer). The Court asked the United States for its thoughts; the United States stated that it was torn between the fact that it might be best for Reyes to start her sentence sooner so it could end sooner and the opposing fact that she had traveled with family— then outside the courtroom—from Arizona. See Tr. at 33:12-20 (Brawley). The Court asked for the applicable legal standard; the USPO said, citing 18 U.S.C. § 3145(c), the issue was whether the United States thinks there are exceptional reasons why Reyes' detention would not be appropriate. See Tr. at 33:21-34:3 (Court, Probation Officer). The United States suggested that it would not oppose release if the Court were to find exceptional circumstances, and asked the Court to put those circumstances, if any, on the record, and noted its assumption that Reyes' counsel had explained the consequences of failing to self-surrender to Reyes. See Tr. at 34:5-12 (Brawley). The Court asked for the USPO's view; the USPO stated that they would not oppose the Court's conclusion if it found exceptional reasons to allow Reyes to self-surrender, but left the matter to the Court's discretion. See Tr. at 34:13-20 (Court, Probation Officer). The Court stated that it could find, by clear-and-convincing evidence, that Reyes will not flee, or endanger the safety of other persons or persons in the community. See Tr. at 34:21-24 (Court). The Court conceded that it had not had a chance to review the Tenth Circuit's or its cases on this provision, but given the need to decide the issue, the Court found that the fact that Reyes has a new, young child for whom she must care, coupled with her performance, justify the exceptional-circumstances standard. See Tr. at 34:24-35:12 (Court). The Court stated that it would, therefore, find exceptional circumstances present; it noted that it might come to a different decision if it had more time to consider the issue, but given the need to decide the issue immediately, it would make that finding. See Tr. at 35:14-17 (Court). The Court instructed Reyes to arrange for self-surrender. See Tr. at 35:17-20 (Court).
The Court does not share Judge Gleeson's policy disagreement with the drug trafficking Guideline ranges. Given the importance of this issue in the nation's ongoing debate about drug policy and the importance of the issue to the defense bar generally, the Court will explain at some length why it does not share Judge Gleeson's views. Most importantly for Reyes, because Court lacks a Kimbrough v. United States disagreement with the Commission's Guideline ranges for drug trafficking offenses, although the Court varies, it does so for reasons tied to the § 3553(a) factors and not to a policy disagreement with the Guideline ranges. Further, the Court will
A pair of recent opinions that Judge Gleeson has written has received considerable attention. One opinion largely criticized mandatory minimums. See United States v. Dossie, 851 F.Supp.2d 478 (E.D.N.Y.2012). The other opinion criticized the Commission's Guideline ranges for drug trafficking offenses. See United States v. Diaz, 2013 WL 322243. The issues are related, but this Memorandum Opinion and Order primarily focuses on Judge Gleeson's drug trafficking opinion in United States v. Diaz.
Judge Gleeson's Kimbrough v. United States disagreement with the Guideline ranges first surfaced in this case in Reyes' sentencing memorandum, where she cites United States v. Diaz, in which Judge Gleeson criticizes the "offense guideline for heroin, cocaine, and crack offenses" as "deeply and structurally flawed," because, in Judge Gleeson's words, "Congress made a mistake" when it enacted the ADAA. 2013 WL 322243, at *1, *5. So too, in Judge Gleeson's view, did the original Commission err, when it made "the fateful choice ... to link the Guidelines ranges for all drug trafficking defendants to the onerous mandatory minimum penalties" in the ADAA. United States v. Diaz, 2013 WL 322243, at *1 (emphasis in original).
Reyes is not alone in her enthusiasm for Judge Gleeson's views. Other drug trafficking defendants who recently have come before the Court for sentencing have also, almost invariably, cited or discussed either United States v. Diaz or Judge Gleeson's earlier decision in United Sates v. Dossie, in which he fired his first volley of criticism at the ADAA. These decisions have influenced the public dialogue about sentencing as well: Judge Gleeson's views about sentencing harshness have garnered both national and local media attention. See, e.g., Liptack, supra ("The Dossie case illustrates what some judges say is a common problem: Prosecutors' insistence on mandatory minimum sentences for minor players in the drug trade has warped the criminal justice system and robbed judges of sentencing authority."). See also Dimond, supra (describing Judge Gleeson's other efforts to address sentencing harshness).
Judge Gleeson does not, however, speak for all of the federal bench. The Court respectfully disagrees with Judge Gleeson's thoughtful and sincere critique of the current system. The Court's fundamental disagreement with Judge Gleeson is his repeated assertion that Congress "made a mistake." In the first place, unless the mistake is of constitutional dimension, i.e., the statute is inconsistent with the Constitution, it is hard for a Court to say that Congress, the elected branch of our government,
The Court also disagrees with Judge Gleeson's belief that the offense Guideline ranges for drug trafficking offenses are "deeply and structurally flawed," 2013 WL 322243, at *1, because, in his view, it is not based on empirical data, Commission expertise, or on the actual culpability of defendants. In the Court's view, the Commission's decision to defer to the ADAA as the decision of the people's elected representatives in constructing the Guideline ranges was wholly appropriate.
The Court does not agree with Judge Gleeson's judgment about the ADAA's purpose. As the Court has already indicated, the Court thinks that such an extended critique of Congress, although thoughtful, is outside the judicial branch's bailiwick. Moreover, the Court is not convinced that Congress made a mistake, at least in the sense that Judge Gleeson identifies, in the ADAA.
In Judge Gleeson's view, drug trafficking sentencing under the ADAA suffers from a means-end mismatch. In both United States v. Dossie and United States v. Diaz, Judge Gleeson identified the end as follows:
United States v. Dossie, 851 F.Supp.2d at 479. See United States v. Diaz, 2013 WL 322243, at *4 (echoing this language). Among other portions of the ADAA's legislative history, he pointed to then-Senate Minority Leader Robert Byrd's summary of a predecessor bill to the ADAA:
United States v. Dossie, 851 F.Supp.2d at 480 (quoting 132 Cong. Rec. 27, 193-94 (Sept. 30, 1986)).
Judge Gleeson criticized at length the method Congress chose to realize its goal:
In United States v. Diaz, Judge Gleeson explained the central problem he perceives in the ADAA: "drug quantity is a poor proxy for culpability." 2013 WL 322243, at *13. He pointed to reports from the DOJ and the Commission suggesting that those entities recognize this failing. See 2013 WL 322243, at *13. He argued that the Guidelines instead should focus on the defendant's role in the crime; he explains that
2013 WL 322243, at *13 (footnotes omitted). Judge Gleeson acknowledged that no workable Guideline could be sufficiently fact-sensitive to produce ideal sentences in every case; hence, he says, there will always be room for individualized judging. See 2013 WL 322243, at *13.
The linchpin of Judge Gleeson's argument about the post-ADAA Guidelines is, therefore, that Congress expressly intended the mandatory minimums "only for a few." 2013 WL 322243, at *1. It follows from this that Judge Gleeson believes that the Guideline ranges, which apply more broadly, are also too high. There are five problems with that argument. First, the statute's language neither expressly or otherwise says it should apply only to a "few," which inquiry normally ends a federal court's statutory construction. Second, the legislative history does not univocally suggest that Congress intended the mandatory minimums to apply only to a "few." Third, there is the difficult problem of defining the "few." Fourth, there are sound reasons not to restrict the mandatory minimum to a "few." Fifth, the mandatory minimum is, in the real world, applied to only a very "few."
The ADAA's language does not restrict its scope to a "few" or to "kingpins," as Judge Gleeson understands the term. The point is obvious—indeed, Judge Gleeson would not have occasion to criticize the ADAA if its language embodied the intent he ascribes to it. The point is worth making, however, because federal judges generally do best when they confine their thoughts about legislation's wisdom to the
To the extent that Judge Gleeson's opinion rests on legislative intent as the legislative history expresses it, the opinion rests on several unexamined and contested premises. As Associate Justice Antonin Scalia explains in a recent concurrence:
Lawson v. FMR LLC, ___ U.S. ___, 134 S.Ct. 1158, 1176-77, 188 L.Ed.2d 158 (2014), http://www.supremecourt.gov/opinions/13pdf/12-3_4f57.pdf. If one takes this view of legislative history, Judge Gleeson's arguments about legislative intent as legislative history informs it are largely beside the point: nothing in the ADAA encodes in law the kingpin-only intent Judge Gleeson dredges up from the "swamp[ ] of legislative history."
This view of legislative history is not, of course, the only—or perhaps even the dominant—view that Supreme Court Justices hold. Justice Breyer famously rejects Justice Scalia's narrow view of the record for determining Congress' intent. Indeed, he rejected that narrow view before he became a Supreme Court Justice, see generally Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L.Rev. 845 (1992), and regularly points to legislative history in his opinions, see, e.g., FTC v. Actavis, Inc., ___ U.S. ___, 133 S.Ct. 2223, 2234, 186 L.Ed.2d 343 (2013) (citing legislative history to interpret the Drug Price Competition and Patent Term Restoration Act of 1984, Pub.L. 98-417, 98 Stat. 1585 (codified as amended in scattered sections of 21 and 35 U.S.C.), commonly known as the Hatch-Waxman Act).
Even if one accepts all the premises that undergird reliance on legislative history generally, the ADAA's legislative history does not support the narrow version of
132 Cong. Rec. 27, 193-94 (Sept 30, 1986). Senator Byrd understood that the ADAA would punish "kingpins," but also "middle-level dealers." Judge Gleeson concludes that Congress intended to apply the ADAA's mandatory minimums to a "few" only after lumping together "middle-level dealers" with the "kingpins" to constitute the "few." Senator Byrd did not, however, limit the ADAA's scope to a "few" or any other number of defendants. Indeed, Byrd recognized that the ADAA includes a graduated, proportional form of punishment that targets not only "kingpins," but those who carry out the kingpins' business.
Moreover, this floor statement from then-Senator Joseph Biden about a predecessor bill to the ADAA suggests that targeting smaller players in the drug trade was part of Congress' deterrence strategy:
132 Cong. Rec. § 14289 (daily ed. Sept. 30, 1986)(statement of Sen. Joseph Biden)("Biden Statement")(emphasis added). Then-Senator Biden's statement contradicts Judge Gleeson's view that the harsh sentences under the ADAA were "intended only for managers and leaders of drug organizations," United States v. Diaz, 2013 WL 322243, at 1 (emphasis added).
Moreover, it is difficult to define, in any pragmatic way, the "few." Judge Gleeson gave no criteria by which we should decide whom those "few" are beyond the vague role-in-the-offense and actual-culpability criteria, for which it would be difficult to draft a Guideline not only for lawyers to use, but also for non-lawyer probation officers and non-lawyer defendants in plea negotiations. Predictability would be sacrificed without any concomitant gain. Because such a Guideline would be difficult to quantify and apply easily, it would be impossible to predict their application, thereby undermining uniformity and making it difficult for people entering into plea negotiations to rely on and apply each Guideline with any assurance. Setting the Guideline range on the basis of role would convert every plea negotiation into a mini-trial, making hollow the notion of a Guideline. And even if courts could provide or fashion a usable definition of the term, it is not sound to limit the mandatory minimum to the few: it is difficult to understand why, if Congress sets the benchmark of a mandatory minimum, and X number of people qualify for that standard, federal judges—whose power to sentence anyone comes ultimately from Congress—should apply the mandatory minimum to a few rather than to X.
Finally, the Court's experience has been that the mandatory minimum has generally been applied to those few offenders who refuse to plea or cooperate, rolling the dice with going to trial, and then being proved guilty. The Court cannot speak for the experience of other federal judges; perhaps the United States Attorney's Office for the Eastern District of New York is more aggressive than the United States Attorney's Office for the District of New Mexico. That difference does not, however, show that mandatory minimums are, themselves, the problem—the problem is overly aggressive charging decisions. The optimal solution to that problem may not be taking away mandatory minimums entirely, but less aggressive charging decisions, like those that the Holder Memorandum embodies.
Taking at face value Judge Gleeson's policy arguments for tethering drug sentencing to individual culpability, his argument is not sound. First, what sentence a given individual "deserves" for committing a given crime is, inherently, subjective. Federal judges' voices in that debate are valuable, because those who work in the criminal justice system will have more contact with the defendants who go through that system than those who work outside of it will. Federal judges' perceptions of individual culpability are not, however, the only perceptions that matter, or that matter the most; the public's perceptions, as filtered through their elected representatives, matter more.
The ADAA did not come into existence in a vacuum: it came on the heels of the tragic death of Len Bias, which profoundly influenced the public's perception of drugs. Bias, a star basketball player for the University of Maryland, died from a cocaine overdose only two days after the Boston Celtics selected him as the second overall pick in the 1986 NBA draft. Writing a quarter-century later, in 2011, Jack McCallum of Sports Illustrated explained that, among the many reasons why Bias' story resonated, his cause of death was significant:
Jack McCallum, Sports Illustrated, Twenty-five years later, Bias' death remains a seminal sports moment (Sept. 1, 2011, 3:13 PM), http://sportsillustrated.cnn.com/2011/writers/jack_mccallum/06/17/len.bias/index.html. Hence, when Congress made what Judge Gleeson called the "fateful" choice to enact mandatory minimums, there was a tangible reason: there was a public outcry. The public wanted what Judge Gleeson called "onerous" penalties. To be sure, in a day when presidential candidates used hard drugs, see Barack Obama, Dreams From my Father 138 (2d ed.2004), presidential candidates push for drug legalization, see Mike Riggs, reason.com, Gary Johnson on "Defanging the DEA, Pardoning Marijuana Offenders, and Standing with Occupy Wall Street (Oct. 19, 2011, 2:17 PM), http://reason.com/blog/2011/10/19/gary-johnson-on-defanging-the, and the DOJ refuses to enforce federal marijuana law in states whose laws regulate rather than outlaw marijuana, it may be hard for current lawyers to remember the public outcry that erupted after Bias' death. But that outcry was real, and Congress responded in a way that, it thought, reflected the public's view of individual culpability—not those of an enlightened legal elite.
18 U.S.C. § 3553(a).
To be sure, some of these factors probe individual culpability. See 18 U.S.C. 3553(a)(1), 3553(a)(2)(A). Some of them, however, deal with distinct concepts, like deterrence and uniformity. See 18 U.S.C. 3553(a)(2)(B), 3553(a)(2)(C), 3553(a)(6). Those considerations led Congress to the decision it made in the ADAA. Congress believed that the law could disrupt the activity of kingpins by imposing severe penalties not only on the kingpins themselves, but also on their minions. Then-Senator Biden's floor statement indicates that part of Congress' "supply side" strategy was to provide "mandatory minimum penalties for the king[]pins of the drug
There is also the goal of uniformity. Congress passed the Sentencing Reform Act that brought the Commission into existence only two years before it passed the ADAA. It is widely understood that one purpose of the Sentencing Reform Act was to establish greater sentencing uniformity. Although no member of Congress explicitly connected the ADAA's mandatory minimums with uniformity qua uniformity, Congress could reasonably conclude that courts' sentences would be more uniform if courts based their sentences on objective measurements of drug type and quantity, and not on inherently subjective perceptions of individual defendants' culpability. Again, the point is not that the Court would have balanced these factors the same way; the point is that the Court does not see in Judge Gleeson's criticisms a reason to view Congress' choice as an unreasoned decision unworthy of judicial respect.
Reyes' argument that the Guidelines "are founded upon the theory that there is a direct relationship between the quantity of drugs possessed and the significance of the possessor within the enterprise," Sentencing Memorandum at 5, suffers from the same problems. It may be true, as Reyes argues, that this rationale does not apply in the methamphetamine context, because it "is now manufactured by large efficient factories in Mexico which operate with little fear of apprehension," and with very low manufacturing costs. Sentencing Memorandum at 5. It may also be true, as Reyes asserts, that "[t]he cost of the drug to the owner is nominal and the cost of loss of any individual load transported by a courier is minimal," and that, "[a]s a result, very low level couriers can be entrusted with great quantities of methamphetamine without the quantity bearing any relationship to their importance to the organization." Sentencing Memorandum at 5. Further, it may be true that "[t]he risk to the organization is not the loss of the street value of methamphetamine, which may be fairly high. Rather, the risk for the organization is the cost of the product, which is very low." Sentencing Memorandum at 5. Reyes' argument rests, however, on the faulty premise that the Guideline ranges must reflect "the importance of the defendant"—which, as Reyes uses it, seems to be another phrase for Judge Gleeson's "actual culpability" criterion. The premise is faulty, because Congress is entitled, very legitimately, to consider more than one factor—and factors other than actual culpability, like deterrence and uniformity.
It may also be true, as Reyes suggests, that sentencing couriers based on the quantity that they carry is inappropriate, because the cost of any particular amount of methamphetamine is minimal and the courier bears the cost of the sentence, not the drug organization. Congress evidently concluded that it could deter the kingpins' acts by deterring couriers from carrying out their business. That choice may lead to harsh sentences in individual cases, but the drug problem is serious, and it may
While Judge Gleeson is of the view that the current regime is insufficiently tethered to individual culpability, Congress has, in fact, shown the capacity to remedy sentencing harshness. As Judge Gleeson pointed out, it did so in the "safety valve" statute and the Fair Sentencing Act of 2010. United States v. Diaz, 2013 WL 322243, at *7. Those adjustments are not substantial enough for him. See, e.g., United States v. Diaz, 2013 WL 322243, at *7 n. 58 (stating that the criminal-history condition for safety valve relief is "unnecessarily rigorous"). He admitted they are "commendable in spirit," but vividly characterized them as "gnats around the ankles of the elephant," because they do not significantly lower the sentences of enough low-level offenders. United States v. Diaz, 2013 WL 322243, at *7. "Gnats" or not, the existence of those provisions indicates Congress is capable of addressing the problem Judge Gleeson perceives. That those who agree with him have not yet persuaded their fellow citizens to deal with the "elephant" of the current Guideline ranges is not a sound reason for the Court to demote that "elephant" to a status deserving "almost no weight."
It bears emphasis that none of the foregoing demonstrates that Congress made the best choice in the ADAA. One can imagine a sentencing system without mandatory minimums or their downstream consequences in the Guideline ranges. And the federal courts might have such a system eventually, given the increased momentum among commentators and politicians to eliminate mandatory minimums. See George F. Will, The sledgehammer justice of mandatory minimum sentences The Washington Post, (Dec. 25, 2013), http://www.washingtonpost.com/opinions/george-will-the-sledgehammer-justice-of-mandatory-minimum-sentences/2013/12/25/959e39de-6cb2-11e3-a523-fe73fOff6b8d_story.html; Jacob Sollum, Rand Paul: "I Am Here To Ask That We Begin The End Of Mandatory Minimum Sentencing" Forbes, (Sept. 18, 2013, 1:31 PM), http://www.forbes.com/sites/jacobsullum/2013/09/18/rand-paul-i-am-here-to-ask-that-we-begin-the-end-of-mandatory-minimum-sentencing/. The point is, however, that Judge Gleeson's argument that Congress "made a mistake" because it created a means-end mismatch is misguided, for two reasons: (i) Congress, responding to a national outcry from the public following a public figure's tragic death, could view individual culpability differently than federal judges do more than a quarter century later; and (ii) individual culpability is just one factor among many in the sentencing-policy calculus, and Congress was entitled to—and did—weigh other factors, including deterrence and uniformity, in designing sentencing policy. The Court is not so bold as to say that Congress "made a mistake"; Congress was entitled to act according to its own balancing of those factors and not the Court's or Judge Gleeson's balancing of those factors.
While Judge Gleeson used different words to describe the alleged flaw that he
Judge Gleeson first identified tension in the philosophical views that undergird the Guidelines—specifically, clashes between the "just deserts" and deterrence approaches to criminal punishment, and between uniformity and proportionality as goals of sentencing. See United States v. Diaz, 2013 WL 322243, at *4. He quoted the Guidelines Manual's account of the Commission's efforts to harmonize these tensions: "In its initial set of guidelines, the Commission sought to solve both the practical and philosophical problems of developing a coherent sentencing system by taking an empirical approach that used as a starting point data estimating pre-guidelines sentencing practice." United States v. Diaz, 2013 WL 322243, at *4 (quoting U.S. Sentencing Guidelines Manual § 1A.1.3 (1987)).
In Judge Gleeson's account, this empirical approach broke down in drug trafficking cases after Congress passed the ADAA—as he calls it, "Congress's Curveball to the Original Commission." United States v. Diaz, 2013 WL 322243, at *4. As he acknowledged, "[t]he ADAA's mandatory minimum sentences . . . were far more severe than the average sentences previously meted out to drug trafficking offenders." United States v. Diaz, 2013 WL 322243, at *5. According to Judge Gleeson, "[t]he problem for the Commission was that it might not look right for a defendant to have a Guidelines range significantly lower than the minimum sentences mandated by Congress in the ADAA." United States v. Diaz, 2013 WL 322243, at *5. He suggests that the Commission could have solved this problem in two ways: by simply stipulating that a mandatory statutory minimum trumps the Guideline ranges or by incorporating the ADAA into the Guideline ranges by tying the Guidelines' role-in-the-offense adjustments to the statutory minimums. United States v. Diaz, 2013 WL 322243, at *5.
Judge Gleeson continued: "The Commission made neither of these choices. Instead, it made one of the most important decisions in its history: It jettisoned its data entirely and made the quantity-based sentences in the ADAA proportionately applicable to every drug trafficking offense." United States v. Diaz, 2013 WL 322243, at *5 (emphasis in original). Judge Gleeson decried what he believed to be the Commission's murky justifications for this decision:
United States v. Diaz, 2013 WL 322243, at *6 (footnotes omitted).
Judge Gleeson wrote that the resulting Guideline ranges in drug trafficking cases suffer from dramatic problems. According to him, the recommended sentences are not, and have never been, "heartland" sentences, because the Commission discarded its information about drug trafficking sentences after Congress passed the ADAA. United States v. Diaz, 2013 WL 322243, at *7-9. Further, according to Judge Gleeson, the data show that judges have departed downward far more frequently than upward—and in increasing proportion over time. United States v. Diaz, 2013 WL 322243, at *8. Judge Gleeson believed that, by failing to revise the Guidelines in accordance with that experience, the Commission has "violated its statutory duty to promulgate Guidelines reflecting application experience and `advancement in the knowledge of human behavior.'" United States v. Diaz, 2013 WL 322243, at *8-9.
To encourage the Commission to make the changes he endorsed, Judge Gleeson pointed to instances where Congress has "t[aken the Commission] to the woodshed" when it has disagreed with the Commission. United States v. Diaz, 2013 WL 322243, at *9. For example, he pointed to the Feeney Amendment to the PROTECT Act as an example of a "humiliating rebuke of the Commission" in which "Congress simply bypassed the Commission altogether, making sweeping amendments to the Guidelines by legislation." United States v. Diaz, 2013 WL 322243, at *9 & nn. 75-77. In sum, Judge Gleeson stated that the Guidelines are too severe; that judges do not respect them for that reason; that the Commission should, therefore, revise them; and that, while they do so, "because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third." United States v. Diaz, 2013 WL 322243, at *9.
Turning to a broader policy concern as "[p]erhaps the best indication that the Guidelines ranges for drug trafficking offenses are excessively severe," Judge Gleeson cited "the dramatic impact they have had on the federal prison population despite the fact that judges so frequently sentence well below them." United States v. Diaz, 2013 WL 322243, at *10 (emphasis in original). He recited numerous statistics demonstrating the cost of the nation's current system and said that federal policy makers have failed to deal with the substantial expense associated with the increase in prison population. See United States v. Diaz, 2013 WL 322243, at *10-11. Judge Gleeson suggested that adjusting "[t]he drug trafficking offense guideline is a good place to start" addressing these costs:
2013 WL 322243, at *11.
As a remedy to these problems, Judge Gleeson said: "[T]he answer is simple. The Commission should de-link the drug trafficking sentencing grid from the ADAA's weight driven mandatory minimum sentences and reduce the Guidelines ranges for these offenses." 2013 WL 322243, at *11. In his view, "[t]he Commission [s]hould [r]evise the [d]rug [t]rafficking [g]uidelines to [b]etter [r]eflect a [d]efendant's [t]rue [c]ulpability." 2013 WL 322243, at *11. He explained:
2013 WL 322243, at *12. For that reason, he said, "[d]rug quantity rarely has the dominant effect that Congress and the Commission have ascribed to it, especially when it comes to determining the culpability of couriers and other low-level offenders." 2013 WL 322243, at *12. He suggested that the Guideline ranges should take role into account to a greater degree than they currently do. See United States v. Diaz, 2013 WL 322243, at *13-14.
Judge Gleeson disagreed with the Commission's stated justifications for declining to revise the Guideline ranges. United States v. Diaz, 2013 WL 322243, at *14. As he described the Commission's reasoning:
United States v. Diaz, 2013 WL 322243, at *14 (footnotes omitted).
To the Commission's first point, Judge Gleeson replied that the Commission's statutory duty "to establish Guidelines that fulfill the purposes of sentencing set forth in § 3553(a) and that `reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process'" is as much a part of federal law as the ADAA, and that "[o]ver
Judge Gleeson also rejected the Commission's second justification. In his view, while the Guideline ranges avoid "sentencing cliffs" if those "cliffs" are measured along the dimension of drug type and quantity, measuring the same Guideline ranges in terms of individual culpability would reveal "terrain that is actually quite treacherous." 2013 WL 322243, at *15. He suggested a possible solution to this problem: A prosecutor should only charge a defendant with higher quantities when the defendant is in fact a manager or leader of a drug operation. See United States v. Diaz, 2013 WL 322243, at *15.
Judge Gleeson rejected the Commission's third rationale—that it agrees with Congress about quantity as a proxy for culpability—because, in his view, the connection between the two has been "debunked," and the Commission has admitted as much. 2013 WL 322243, at *16. Further, Gleeson suggested that the Supreme Court's decision in Kimbrough v. United States gave the Commission enough leeway in designing the Guideline ranges that they could address this problem:
2013 WL 322243, at *16 (footnotes omitted).
Judges and defense counsel frequently charge that a Guideline range is not based on empirical data and that, therefore, courts should not apply the Guideline range. By this criticism, judges and defendants appear to mean that the Commission did not do some of the work that the Commission did originally in setting some of the early Guideline ranges:
U.S. Sentencing Guidelines Manual § 1A1.3, at 4 (Nov.2012); id. § 1A1.5, at 11.
Judge Gleeson appears to argue that, when the Commission incorporated the ADAA's quantity-based approach into the Guideline range, it exacerbated the flaw in Congress' reasoning.
It is important to understand what the Commission did in response to the ADAA: it "drafted a drug trafficking guideline that 1) generally measures the applicable amount based on the weight of the mixture or substance, and 2) linked the quantity levels in the ADAA to guideline ranges corresponding to the five- and ten-year mandatory minimum sentences." 2004 Report at 49. Put differently, the Commission took as given the quantity-based mandatory minimums, and created proportionally shorter or longer Guideline ranges, for lesser or greater quantities of drugs. It is true that, at the time, the Commission did not explain "why the Commission extended the ADAA's quantity-based approach in this way," 2004 Report at 49, but there are several plausible explanations. As the Commission subsequently explained:
2004 Report at 49-50 (emphasis in original). There are reasonable arguments against using drug quantity as the basis for sentencing length. See 2004 Report at 50-52. Judge Gleeson identified some of those arguments. These policy arguments miss, however, an important reason why the Commission adopted quantity as its shorthand for how much punishment a defendant deserves, one so obvious its critics often miss it: Congress chose that shorthand in the ADAA, and the Commission thought it wise to create Guideline ranges that reflected the public's endorsement of that decision.
Against that backdrop, it is now easy to understand why the Commission departed from its usual data-driven approach. First, there was no need for empirical data; indeed, collecting further empirical data would have wasted the Commission's time, effort, and resources. The Commission had already done empirical research; the problem is that any such empirical data would have measured sentencing practice that, in the public's mind as Congress reflected it, was flawed, because it did not punish drug offenders severely enough. Thus, it is not sound to criticize the Commission for not doing more empirical research when the empirical research would only have measured sentencing practice that the people rejected—and would, therefore, have ignored the political processes that rejected the sentencing practice that the empirical research would have measured. In the end, while the criticism of the Commission for not doing more empirical research sounds like a scientific
Second, while judges and defendants often criticize some Guideline ranges for failure to be based on empirical data, they rarely explain why the lack of empirical data is so bad. The Court is quick to note how appreciative it is for all of the empirical research that the Commission has done and the way it has done it. The Commission's solid and extensive work has given judges confidence, when they consider a given Guideline range, that the range reflects the public's expectations as much as possible. Also, by drawing from such a large pool of information, the empirical data is about as democratic as empirical data can be. On the other hand, the Constitution envisions a republican form of government. If a court has to choose between empirical data and the judgment of the people's elected representatives that the empirical data would have measured overly lenient sentencing practice, it would seem that the more logical choice would be to honor the charge of the elected officials than the mechanical product of empirical data. It would seem best, in a republican form of government, to trust the representatives' decision rather than the product of empirical data. Thus, the burden falls on those who praise empirical data, and criticize every Guideline range when there is not sufficient empirical data to support the range, to show why they prefer empirical data rather than the decision of the people's representatives. Judge Gleeson does not meet that burden.
This same basic misconception of the relationship between the Commission and Congress permeates Judge Gleeson's opinion. Judge Gleeson characterized the Commission's "problem" as being that "it might not look right for a defendant to have a Guideline range significantly lower than the minimum sentences mandated by Congress in the ADAA." United States v. Diaz, 2013 WL 322243, at *5. The Court is inclined to adopt a more charitable explanation for the Commission's behavior: it responded to the will of the people, as their representatives' acts reflect.
In short, Judge Gleeson seems to have overlooked a very good reason for the Commission's decision: its previous data had value because it summarized sentencing practice under the law at the time. In the ADAA, Congress rejected that prior sentencing practice in the drug arena, so sentencing practice under prior law no longer revealed anything relevant. When Congress changed the law, it rendered obsolete the Commission's research regarding sentencing under earlier law. Out of respect for Congress, the Commission changed course. That change is as it should be.
Judge Gleeson's second alleged structural flaw is that the Guideline ranges for drug trafficking offenses are not based on Commission expertise. Judge Gleeson does not fully explain what this phrase means. Presumably, it means that the Commission did not base its ranges on empirical data. If empirical data is all that Judge Gleeson means, then the alleged structural flaw is redundant.
Judge Gleeson's third alleged structural flaw is that the Commission did not base the Guideline ranges for drug trafficking on "the actual culpability of defendants." 2013 WL 322243, at *1. He contends that the Guideline ranges are driven by drug type and quantity, which are poor proxies for culpability.
"[T]he actual culpability of defendants" is an extremely vague notion. As the Court has already explained, judges and parties can differ greatly over this idea in a particular case, much less as an idea that should provide guidance for judges throughout the country presiding over a vast array of cases. To set base offense levels based on the "actual culpability of defendants" is to argue for no guidance and for no uniformity. To require a mini-trial on complex factual details to determine the "actual culpability of defendants" in each sentencing just to get the base offense level is unrealistic; moreover, the results would be unpredictable. While imperfect, drug and quantity are about as good a proxy for culpability as can be devised.
For example, society does not get as worked up about marijuana as it does about heroin, cocaine, and methamphetamine.
Moreover, determining the actual culpability of the common drug courier is difficult. No two couriers are exactly the same, but they fall into categories. There are the couriers who do not know what they are carrying, but suspect it is a drug of some kind and do not have knowledge about the quantity; they just know that, if they drive the car or carry the bag to someone, they get $1,500.00. A second category of courier is the person who knows he or she is carrying drugs, knows something about the drugs, such as what the drugs and weight are, and thus some idea about the quantity. A third category is the courier who rented the car, knew the people involved, and knows a little more about the drug organization. A fourth category of courier is the courier who does other things, such as making a few deals or sending money to Mexico. There are other categories. The question is how to assign different base offense levels to each of these categories. And thus, the Commission would have to create categories for the retail salesperson, the money counter, the money launderer, the telephone person, the enforcer, and other categories. And then the Commission would have to compare categories: how do you compare a courier with the person who is moving money to Mexico? The complexity of the task is a bit overwhelming. And there is no uniformity. After looking at the alternatives, it appears that type and quantity are the best proxies available.
The Court agrees with Judge Gleeson that, if the Commission had based its post-ADAA ranges on empirical data or on Commission expertise in the narrow, statistical sense, the ranges would be much less severe. The result would likely have been the same as pre-ADAA sentencing practice. Hence, Judge Gleeson's observation, while true, does not state much. The problem with pre-ADAA sentencing and the hypothetical ranges based on empirical data or on Commission expertise is that Congress thought that the pre-ADAA sentencing practice did not sufficiently punish drug offenders.
It is less clear, however, that if the Commission had based its post-ADAA ranges on actual culpability of defendants, the sentencing ranges would be much less severe. At some point, the Commission has to set a base offense level. If the base is the offense level for a courier, and the Commission sets the floor base level, then sentences might end up being the same. A system based on actual culpability of defendants does not guarantee less serious sentences; the sentences all depend on where the base is.
Judge Gleeson states that, if the Guideline ranges for drug trafficking offenses were based on empirical data, Commission expertise, and actual culpability of defendants,
Judge Gleeson thinks that the genesis of the alleged structural flaw is rooted in the Commission's choice to tie the Guideline ranges for all drug trafficking offenses to the mandatory minimum penalty in the ADAA. Echoing his earlier criticism of the ADAA, Judge Gleeson contended that the Commission erred in its methodology, because the Guideline ranges that it produced are insufficiently sensitive to individual culpability. While the Court agrees that the ADAA was the triggering event, that terse observation does not tell the whole story behind the ADAA—that is, the death of Len Bias and the resulting political outcry. In the end, this alleged structural flaw collapses into Judge Gleeson's more general criticism of the ADAA. As the Court has already explained, that line of reasoning suffers from the same flaws that are fatal to his criticism of Congress: individual culpability is but one variable in the sentencing policy calculus, and it is for the Commission to solve the equation, within limits that Congress sets.
Instead of trying to tailor for actual culpability of defendants in the base offense level, it may be better to fashion an individual sentence with enhancements, deductions, departures, and, of course, variances. Base offense levels, whether based on empirical data or on the Commission's decisions that incorporate what Congress wants, are blunt objects; it is better to tackle the problem with enhancements, deductions, departures, and variances than trying to adjust the base offense level. Trying to determine actual culpability of defendants with the base level is a difficult issue and may be a futile effort.
Judge Gleeson is, of course, correct that Congress can fix, and in fact has fixed, problems with the Commission's Guideline ranges in other areas. Judge Gleeson described the Feeney Amendment to the PROTECT Act as a "humiliating rebuke of the Commission" in which "Congress simply bypassed the Commission altogether, making sweeping amendments to the Guidelines by legislation." 2013 WL 322243, at *9 & nn. 75-77. Beneath its incredulous tone, this passage does nothing more than describe the proper functioning of the nation's constitutional order: when the Commission acts in a way that is inconsistent with the will of Congress, Congress acts. Perhaps Congress should do so in drug trafficking cases as well. It has not, however, and until it does, the Court will give the Commission's Guideline ranges their due respect.
The Court also notes that, with respect to Judge Gleeson's criticism of the United States' charging decisions, he seems to have gotten a good deal of what he wanted with the Holder Memorandum. The Court is more reluctant than Judge Gleeson to tell the executive branch how to charge defendants; separation-of-powers and comity principles generally counsel against such an act. Setting that issue aside, however, the Holder Memorandum shows that the executive is aware of the issues that Judge Gleeson identifies and can act, in its discretion, to resolve them.
With this framework in mind, the Court briefly comments on the Commission's proposed amendments to the drug trafficking Guideline ranges, see U.S. Sentencing Comm'n, Proposed Amendments to the Sentencing Guidelines, available at http://www.ussc.gov/Legal/Amendments/Reader-Friendly/20140114_RFP_Amendments.pdf. ("Proposed Amendments"), which the Commission will consider in the days after the Court issues this Memorandum Opinion and Order. It is worth noting what the Commission has proposed to do in its proposed amendments to § 2D1.1 of the Guideline—and what it has not done. The Commission is considering lowering the "Drug Quantity Table so that the quantities that trigger the statutory mandatory minimum penalties trigger base offense levels 24 and 30, rather than 26 and 32." Proposed Amendments at 35. Doing so will "establish[] guideline ranges with a lower limit below, and an upper limit above, the statutory minimum." Proposed Amendments at 35. The Commission's original ranges set the Guideline ranges slightly higher than the mandatory minimums to allow judges to adjust downward for a cooperating defendant. See Proposed Amendments at 33. The Commission's comments on its proposed amendments underscore the proposal's purpose: to incorporate Congress' mandatory minimums correctly, but also to reconcile those mandatory minimums with numerous intervening changes in drug policy—most significantly, the multiplication of sentencing enhancements and downward adjustments, and the effects of the safety valve on plea bargaining. See Proposed Amendments at 33-34. Perhaps most importantly, it did not take the unscientific approach that Judge Gleeson suggests: immediately slashing the Guideline ranges by a third. In this sense, the Commission appears to firmly grasp its role in constructing a sentencing regime that respects congressional intent.
As sentencing judges know, the diverse purposes of sentencing exist in tension. When a sentencing judge seeks to do justice on the retail level, the judge has the duty to reconcile those purposes as they relate to an individual case. When, however, Congress designs a system of sentencing on the wholesale level, it has the prerogative, within constitutional constraints, to design a system that does the will of the people as Congress understands it. And when the Commission implements that system, it does not abuse its office by responding to Congressional enactments.
It is understandable, perhaps inevitable, that individual judges will become convinced that Congress and the Commission have gotten the balance wrong in some category of cases. The Supreme Court has recognized judges' authority to act on those convictions. See Spears v. United States, 555 U.S. at 265-66, 129 S.Ct. 840 ("[D]istrict courts are entitled to reject and vary from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines."); Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (permitting sentencing judges to hear arguments that "the Guidelines sentence itself fails properly to reflect § 3553(a) considerations"). Individual judges do not speak for the federal bench, however, and the Court does not share the concerns that Judge Gleeson has raised about the Guideline ranges at issue. Some judges might think it wise to use a memorandum opinion to criticize Congress, the Commission, and, ultimately, the people. The Court is not so bold. "Maybe Congress ought to make the statute books more rational. . . . [B]ut the task of determining how close to make the fit between offense and sentence is legislative." United States v. Marshall, 908 F.2d 1312, 1321 (7th Cir.1990) (en banc) (Easterbrook, J.), aff'd as Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).
The Court also disagrees with Judge Gleeson's and others' convictions that courts should, in deciding a sentence, fret about prison over-crowding and the related prison-spending problem. The Court does not dispute the facts he cites or the over-crowding that he identifies. Congress is, however, fully equipped to solve any over-crowding problem. Indeed, Congress is much better equipped than the federal courts to balance the expense of the nation's prison system with the necessity of incarcerating particular offenders. Prison over-crowding—or under-building—may be a real problem, but Judge Gleeson's approach would have the drug-trafficking-sentencing tail wag the prison-spending dog. Congress can solve this problem better than judges can, and the federal courts do not improve matters by introducing sentencing chaos into the mix of issues that Congress must resolve in
It intrigues the Court when judges cite saving taxpayer dollars as a reason to give lower sentences. As far as the Court can see, saving taxpayer dollars is not one of the § 3553(a) factors. It is possible that creative judges and lawyers can squeeze saving taxpayer dollars into "the kinds of sentences available" or some other sentencing factor, but the more reasonable explanation is that, if Congress wanted judges to be concerned about saving taxpayer dollars, it would have explicitly mentioned that factor. More likely, Congress probably thought that sentencing and balancing the explicit § 3553(a) factors is hard enough without the judge having to worry about what imprisonment or supervision will cost. Moreover, it is likely that Congress does not want judges to worry about the costs of incarceration and supervision; if a defendant needs to be incarcerated or supervised, Congress probably wants judges to incarcerate or supervise, and not reduce the sentence because of costs. Hence, while judges are qualified to criticize mandatory minimum sentences as costing too much, the argument is not legitimate. Congress and the people do not want judges to worry about costs when trying to determine what the appropriate sentence is for an individual defendant. Congress—and many states—may rather build more prisons than eliminate mandatory minimums. In the end, the question how to allocate the nation's resources is a legislative task and not a judicial task.
Also, in light of the enormity of our nation's budget, it is somewhat humorous to watch judges tilt their sentencing-cost lances in individual cases at the prison-cost windmill. In the proposed budget that the Obama Administration submitted for the fiscal year 2013, it allocated to the Bureau of Prisons less than $7 billion out of a proposed budget of approximately $3.8 trillion. See Fiscal Year 2013 Budget of the U.S. Government available at 140, 214 http://www.whitehouse.gov/sites/default/files/omb/budget/fy2013/assets/budget.pdf. In other words, even if the Administration got everything it asked for, the entire Bureau of Prisons would consume less than.002% of the federal budget. Granted, other the federal budget. Granted, other agencies spend money that relates to sentencing, but the point remains: all of this judicial handwringing is over a small percentage of the national budget. Moreover, the nation is borrowing about forty cents of every dollar it spends. While the public probably would appreciate any federal entity that would give any thought to saving taxpayer dollars, the concern is relatively insignificant in the scheme of things, and it is a concern that Congress does not appear to want the courts to spend a lot of time or effort addressing when it is trying to come up with an appropriate sentence for an individual defendant. In sum, this argument is makeweight and weak. While the ADAA's mandatory minimums and the related increases in the Guideline range for drug trafficking have, no doubt, increased the federal prison population some, that marginal increase is not among the factors that the Court should properly consider in sentencing an individual defendant.
What is more, Congress has directed the Commission to consider the nation's resources in constructing its Guideline ranges:
28 U.S.C. § 994(g)(emphasis added). Interpreting this statute, the Commission has stated that it "intends to consider the issue of reducing the costs of incarceration and overcapacity of prisons, to the extent it is relevant to any identified priority." Sentencing Guidelines for United States Courts, 78 Fed.Reg. 51820, 51821 (Aug. 21, 2013). This statute demonstrates that, when Congress wants an entity to consider the effects of a sentence on the nation's resources, it knows how to do so. Because Congress has directed the Commission to consider "the likelihood that the Federal prison population will exceed the capacity of the Federal prisons" in designing wholesale sentencing policy—and has not directed courts to consider that concern in crafting an appropriate sentence in an individual case under 18 U.S.C. § 3553(a) or otherwise—the Court will not consider it or the more general concern of prison costs, in Reyes' case or in other cases.
Accordingly, Reyes is committed to the custody of the Bureau of Prisons for 30 months for the reasons stated at the sentencing hearing. While a variance equal to about two levels is appropriate, the Court will not base that variance on a Kimbrough v. United States disagreement with the Guideline range as Judge Gleeson has done or on the cost of incarceration. Rather, United States v. Booker and § 3553(a) give the Court ample tools to craft a sentence that better reflects the factors in § 3553(a) than the baseline of the Guideline range of 51 to 63 months.
Tr. at 30:17-25 (Court). From the context, it is evident that the transcript should have recorded the Court as saying: "Alright, it is ordered that the sentence is imposed as the Court has stated it." Accordingly, the Court will treat this statement as its own.
It is difficult to assert that mandatory minimum sentences in drug trafficking cases distort the sentencing process when they are the sentencing process; it makes no more sense to say that pass interference distorts the passing game in football when it is a rule in the game of football. Judge Gleeson's other criticism is more substantive: he joins other judges critical of mandatory minimums by pointing out that they have a front-row seat and have witnessed such mandatory minimums create injustice in their courts. While the Court does not doubt that there are times when a mandatory minimum has resulted in harsh sentences, the Court is not convinced that as much injustice occurs as critics project. The question is by what standard "unjust" is measured. The people, and their elected members of Congress, may not consider mandatory sentences unjust. That federal judges tend to sentence lower than the people might choose is underscored by the disparity Judge Gleeson identifies between the lower sentences historically imposed in drug cases, as the Commission originally calculated them, and the mandatory minimums that Congress imposed in the ADAA.
The Court is largely indifferent on mandatory minimums. If Congress wants to give the Court more discretion and power, it is in no position to decline more responsibility. On the other hand, if Congress wants to limit judicial discretion in sentencing, it is hardly worth a judicial temper tantrum. Given the many complex issues that are already delegated to federal judges, it is hardly worth judicial breath or ink begging for a little more or complaining about a little less. In the end, the issue is someone else's call, and the Court tends not to worry about things it can do nothing about.
It is worth noting, however, that there are sound reasons for mandatory minimums. The Commission's report to Congress suggests the following as potential advantages: (i) "promoting uniformity and reducing unwarranted disparities," particularly after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); (ii) "[p]rotection of the [p]ublic through [c]ertainty in [p]unishment, [d]eterrence, and [i]ncapacitation:" (iii) they "express[ ] society's disdain for an offense;" (iv) because "[t]he threat of a mandatory minimum penalty gives law enforcement leverage over defendants, [they] may be encouraged to cooperate in exchange for lesser charges or safety valve and substantial-assistance benefits;" and (v) improving "the relationship between state and federal law enforcement" in two ways: first, protecting the public by ensuring that the federal system will punish an offender when a state fails to impose a sufficiently high sentence, and, second, because "the prospect of being convicted of a federal statute carrying a mandatory minimum penalty induces defendants to plead to state charges." United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System 85-89 (Oct. 2011) (citing testimony, articles, and studies in support). While there are disadvantages as well, see id. at 90-102, it is for the people and their representatives to balance them.
Finally, the Court rarely sees defendants receive a mandatory minimum sentence. For example, the Commission's 2011 report to Congress on mandatory minimum penalties stated that, "[i]n fiscal year 2010, more than half (54%, n=8,619 of drug offenders convicted of an offense carrying a mandatory minimum penalty received relief from the mandatory minimum penalty." United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice System 158 (Oct.2011). The reasons are multiple. First, Congress expressly provided for a safety valve. See 18 U.S.C. § 3553(f). If the defendant has a criminal history of I, among other factors, he or she can avoid the mandatory minimum. Thus, the only defendants who have anything to fear from mandatory minimum are those who have a criminal history and refuse to cooperate, among other factors—not the most sympathetic set of drug trafficking defendants. Moreover, once the safety valve applies, the Court can continue to vary, thus largely eliminating the effect of a mandatory minimum in a particular case. See United States v. Garcia, 939 F.Supp.2d 1216, 1227-28 (D.N.M.2013) (Browning, J.) Second, under U.S.S.C. § 5K1.1, if the Court grants the United States' motion for substantial assistance, the sentence can be below the mandatory minimum; not only do mandatory minimums promote substantial assistance, but they give the DOJ the flexibility to do justice and avoid injustice in pretrial situations. Third, the United States can avoid injustice with its charging decisions; the Court often sees the original indictment includes a count that would result in a mandatory minimum, but at sentencing, the plea is to a lesser offense in an indictment or information, and the plea agreement calls for dismissal of the counts in the indictment resulting in a mandatory minimum. Indeed, the DOJ recently adopted a new charging policy that is designed to "ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers." Holder Memorandum at 1. Currently about the only people who see a federal mandatory minimum are those who roll the dice and decline to enter into a plea agreement. While the mandatory minimum gives the prosecution tremendous leverage, the mandatory minimum rarely has much practical effect in the early stages of the criminal justice process; it usually comes into effect only when the defendant makes a bad miscalculation.
The Court acknowledges the ongoing debate about mandatory minimums generally and that reasonable people may differ about their wisdom. Because Reyes is not subject to a mandatory minimum, the Court will discuss mandatory minimums only to the extent necessary to respond to Judge Gleeson's critique of the Guideline ranges based on the ADAA. The Court may, in a future case that implicates a mandatory minimum, weigh in on that debate.
Hon. Alex Kozinski, Should Reading Legislative History be an Impeachable Offense?, 31 Suffolk L.Rev. 807, 813 (1998)(footnote omitted).
It is easy to understand why the public demands homicide prosecutions against drug providers whose product caused the death of a beloved celebrity like Philip Seymour Hoffman. A person lies dead; someone must bear responsibility for his death. It is easy to scapegoat the drug provider. But is it fair to single out the provider whose heroin happened to have killed a celebrity (or anyone else)?
The answer is plainly no. Alan Dershowitz, No, Philip Seymour Hoffman's Dealer Isn't a Murderer, The Daily Beast, (Feb. 7, 2014;), http://www.thedailybeast.com/articles/2014/02/07/no-philip-seymour-hoffman-s-dealer-isn-t-a-murderer.html. The Court's point is that the strength of the public's reaction to how society should punish drug dealers may be cyclical, depending in part on how recently an admired public figure has died from an overdose. Indeed, Dershowitz recognized as much. See Dershowitz, supra (citing the deaths of Bias, comedian John Belushi, and Robert Kennedy's son as evidence that "[w]henever a celebrity dies of a self-administered drug, particularly heroin, efforts are made to locate and prosecute those who provided the drug").
Hoffman's is but the most recent high-profile death from drug abuse. In a video posted on the DOJ's website on the day that the Court filed this Memorandum Opinion and Order, Attorney General Holder called abuse of heroin and of prescription narcotics an "urgent—and growing—public health crisis," noting that "[b]etween 2006 and 2010, heroin overdose deaths increased by 45 percent" and detailing federal agencies' efforts to combat this trend. Dep't of Justice Office of Public Affairs, Attorney General Holder, Calling Rise in Heroin Overdoses `Urgent Public Health Crisis, Vows Mix of Enforcement, Treatment (March 10, 2014), U.S. Dep't of Justice, http://www.justice.gov/opa/pr/2014/March/14-ag-246.html. Moreover, from the Court's experience, young people in the Northeast Heights of Albuquerque—a relatively affluent area of New Mexico—and young people in Espanola, New Mexico—a relatively poor area of New Mexico—are dying way too frequently from heroin. These facts bring into high relief an important fact about democracy: while the intensity of public interest on any issue in a democracy is difficult to maintain, diminished intensity does not mean that the attitude of the American public toward drug dealers—even street dealers—has fundamentally changed. And, given the widely acknowledged serious public health challenges that hard drugs present, harsh sentences for those involved in putting them on American streets—and, ultimately, in Americans' bodies—are understandable.
