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Newsletter – Winter 1993 – Issue 2 – Political Developments

Winter 1993 – Issue 2

Federal Sentencing and Postconviction News

Political Developments

Several attorneys have contacted me because their clients who are incarcerated have asked them about “prison grapevine” rumors regarding the elimination of mandatory minimum sentences, expanded good conduct time, and sentence reductions for non—violent, first—time offenders.

There is good news and bad news. The bad news is that in early August, President Clinton unveiled the new Democratic crime package soon to be introduced in Congress. While the proposed bill contains expanded death penalty provisions, limits on habeas corpus, funding for 50,000 new police officers, and 10 additional boot camps (interestingly enough, 80% of the slots will be filled by state prisoners), it is notably silent about the repeal of mandatory minimums or expansion of goodtime credits.

The good news is that on May 12, at the request of Attorney General Janet Reno, Kathleen M. Hawk, Director of the Federal Bureau of Prisons, testified before the House Subcommittee on Intellectual Property and Judicial Administration of the House Judiciary Committee (they have oversight of the BOP) on the subject of prison overcrowding. In her testimony, Director Hawk addressed three areas of concern: the causes of prison overcrowding (mandatory minimums); the Bureau of Prisons’ budget (by 1997, the BOP will need $3.6 billion); and alternatives to the current system. Under alternatives, she offered four “hypothetical strategies” for reducing prison overcrowding.


The Commission has submitted a commentary amendment directly addressing the problem of attempted guideline manipulation by police agents in reverse sting operations. If the court finds that a government agent sells or negotiates a drug sale “substantially below the market value of the controlled substance” in order to induce a defendant to purchase more than his resources would permit, “a downward departure may be warranted.”

Weight of LSD will no longer include the carrier medium, which has heretofore led to an anomaly. A defendant with a large quantity of the pure drug often receives a lesser sentence than a person with a few doses of the drug impregnated in blotter paper. The amendment proposes that “blotter” LSD be ascribed an arbitrary weight of 0.4 milligrams per square—inch square to determine the base offense level. In non—LSD cases, another proposal would eliminate unusable materials from the weight calculation. Excluded will be materials that must be separated from the controlled substance before the drug can be used. Examples include fiberglass in a cocaine fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue and waste water from an illicit laboratory used to manufacture a controlled substance.

On July 27, the Commission voted to make “LSD” and “unusual materials in weight calculation” guidelines retroactive pursuant to §1B1.10. Assuming that Congress does not block the original amendments, they will become operational on November 1. At that time, a defendant is eligible to be resentenced pursuant to 18 U.S.C. §3582(c)(2).

Tax Guidelines
The “tax loss” table proposal provides for lower losses and thus higher guidelines for a given offense level than the current version “to provide increased deterrence for tax offenses.” Guideline §2T1.2 (Failure to File, Supply Information or Pay Tax), §2T1.3 (Fraud and False Statements), and §2T1.5 (Fraudulent Returns, Statements or Other Documents) would be consolidated into §2T1.1 which would then be titled “Tax Evasion, Willful Failure to File Return, Supply Information, or Pay Tax; Fraudulent or False Returns, Statement or Other Documents.” The main purpose of the consolidation, according to the Commission, is to eliminate some of the confusion over which guidelines apply to a particular case.

Money Laundering
New money laundering guidelines, §2S1.3 and 2S1.4 would be combined, along with their commentary, into a new section, §2S1.3 titled “Structuring Transactions to Evade Reporting Requirements; Failure to Report Cash or Monetary Transactions; Failure to File Currency and Monetary Instrument Report; Knowingly Filing False Reports.” The purpose of the consolidation, according to the Commission is to assure greater consistency of punishment for similar offenses and greater sensitivity to indicia of the seriousness of the offense, such as the defendant’s state of mind regarding the source of the laundered funds.

The base offense level for all offenses under the new guideline is six plus the number of offense levels from the fraud table (§2F1.1), with an increase of two levels if the defendant knew or believed the funds were unlawful proceeds and a decrease down to the base offense level of six if no criminal activity or intent was involved in the transaction.

The Commission has also voted to make this amendment retroactive.


A defendant’s storage of a holstered, unloaded gun in a padlocked closet on top of a locked box containing cocaine and ammunition did not expose him to conviction under 18 U.S.C. §924(c) for using a gun in connection with drug possession. The distinction is between “actual use of a firearm” and “possible future use.” Actual use is usually shown by evidence that the gun was employed to guard the stash. The important factors are the accessibility of the gun, whether it is loaded, what type of weapon it is, and whether there is expert testimony to bolster the government’s theory of “use.” U.S. v. Derr, 990 F.2d 1330 (D.C.Cir. 1993).

Role in the Offense
The Eleventh Circuit has held that a wholesaler of drugs is not necessarily a “leader or organizer” of a retail network. Over an extended period of time, the defendant sold large quantities of drugs to a buyer, who distributed the drugs through an organization. The Eleventh Circuit reversed the District Court’s four—level enhancement of defendant’s offense level for being a “leader or organizer” of the group. The evidence merely showed that the defendant was engaged in a long—term, seller—buyer relationship with the head of the distribution ring. Since the defendant had no control over the distribution ring and lacked any other indication of being an leader or organizer, his four—level upward adjustment for role in the offense under §3B1.1(a) was reversed. U.S. v. Yates, 990 F.2d 1179 (11th Cir. 1993).

In U.S. v. Mares—Molina, 913 F.2d 770, 773 (9th Cir. 1990), the Ninth Circuit adopted the First Circuit’s holding in U.S. v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990) that the defendant “must have exercised some control over others” in order to justify an upward adjustment for role in the offense under §3B1.1(c) for being “an organizer, leader, manager or supervisor.” In U.S. v. Hien—Hai Hoac, 990 F.2d 1099 (9th Cir. 1993), the District Court increased defendant’s sentence by two levels because the defendant “implemented the importation and in that, utilized organization skills.” On appeal, the Ninth Circuit reversed, ruling that “organizing the importation, however, is not the same as organizing other conspirators and does not satisfy the Mares—Molina test.

Mandatory Minimum Sentences and Foreseeability
A defendant’s mandatory minimum sentence depends on reasonable foreseeability. Two defendants pled guilty to conspiracy to distribute more than five kilograms of cocaine. While this would ordinarily subject them to a 10—year mandatory minimum, in this case, the defendants had arranged two single kilo sales and there had been discussions (not involving the two defendants) with a third defendant about supplying 25 kilos of cocaine. The Ninth Circuit reversed the mandatory minimum sentence of the two defendants because the facts did not support the prosecution¹s contention that the defendants knew of the 25 kilos or that such quantity was reasonably foreseeable to them. The government must show that a particular defendant had some connection to the larger amount or reasonable foreseeability thereof in order to be subject to the mandatory minimum. U.S. v. Becerra, 992 F.2d 960 (9th Cir. 1993). Similarly, in U.S. v. Young, 997 F.2d 1204 (7th Cir. 1993), the Court of Appeals made clear that drugs produced by a conspiracy cannot be attributed to a defendant unless that quantity was reasonably foreseeable. The Seventh Circuit vacated the defendant’s mandatory minimum sentence and remanded because there was no support on the record for the District Court’s finding that the conspiracy’s 12,500 marijuana plants were attributable to him.

In U.S. v. Martinez, 987 F.2d 920 (2nd Cir. 1993), a defendant received a mandatory minimum sentence after being convicted of conspiring to distribute over five kilograms of cocaine. Because of the conspiracy, the District Court never determined whether the five—kilogram quantity involved in the conspiracy was reasonably foreseeable to the defendant as would have been required under the guidelines. Even though one pleads to a conspiracy carrying a mandatory minimum sentence, if the “reasonable foreseeability” standard of the guidelines is not met, the mandatory minimum does not apply.

The Law Offices of Alan Ellis specializing In Federal Sentencing, Appeals, 2255 Habeas Corpus