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Decision offers support for below-guideline sentences

A recent sentencing decision by U.S. District Judge Lynn Adelman provides an excellent source for defense attorneys seeking persuasive authority for imposition of below-guideline sentences for their clients.

However, some of the reasons given by the court for imposing its sentence should be cited with caution or avoided altogether.

Michelle Willis pleaded guilty to interstate transportation in aid of unlawful activity — she drove her boyfriend and several of his confederates from Wisconsin to Michigan so they could sell crack cocaine.

The calculated guideline range was 121-151 months, but since the maximum sentence was five years, 60 months was the guideline “range.”

Adelman departed from the guidelines, and imposed a sentence of 12 months and 1 day, for several reasons, issuing a sentencing memorandum on March 28.

“The Girlfriend Problem”

The court concluded that a guideline sentence was greater than necessary, because Willis did not plan the trip, prepare the crack, engage in any actual dealing, or profit from the venture.

More specifically, the court found that Willis became involved in the conduct at the insistence of her boyfriend, and had “little criminal propensity herself.”

Adelman quoted at length from a legislative briefing on “The Girlfriend Problem,” which stated in part, “[Women] are often subjected to the same, or in some cases, harsher sentences than the principals in the drug trade at whom the sentencing statutes were aimed. In too many cases, women are punished for the act of remaining with a boyfriend or husband engaged in drug activity, who is typically the father of her children. Many of these women have histories of physical and sexual abuse and/or untreated mental illness.”

Adelman also noted that, while Willis refused to cooperate against her boyfriend, he cooperated against her. He stated, “Thus, in the present case, another aspect of the girlfriend problem was the lack of reciprocal loyalty.”

Crack Guideline

The court also found that the crack guidelines are greater than necessary in Willis’ case.

Adelman acknowledged that, in U.S. v. Jointer, 457 F.3d 682, 687 (7th Cir. 2006), the Seventh Circuit held that district courts err as matter of law when they construct a new sentencing based on a crack-to-powder ranger other than 100:1.

However, the judge concluded he could still impose a below-guideline sentence, remarking, “the Jointer court did not hold that the crack guideline was sacrosanct.”


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Adelman concluded, “[W]hile district courts may not construct their own alternative crack/powder ratio, neither are they required to impose a sentence under the current 100:1 ratio in the guidelines. Further, they can, in imposing an appropriate sentence in the individual defendant’s case under sec. 3553(a), consider the Sentencing Commission’s reports on the problems with the crack guideline. Finally, they may consider whether the aggravating circumstances that prompted the adoption of the 100:1 ration are present in the case before them.”

Looking to the specifics of the case, Adelman noted that Willis was not actively engaged in the trade; thus, she never made a conscious decision to traffic in crack, as opposed to powder cocaine. Nor did she choose the amount that would be distributed.

Adelman also noted that, in this case, there was no weapon possession, ‘[n]or was there any evidence of specific harmful effects on the community resulting from the offense, or of any specific victims of the crime.”


Before concluding, Adelman added, “Finally, defendant was African-American, as are the vast majority of those sentenced for trafficking in crack while powder cocaine offenders are usually white. This raised the specter of racial disparity, the most pernicious type.”

For these reasons, he court imposed a sentence of 12 months and one day.

Click here for Case Analysis.

David Ziemer can be reached by email.

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