Judge Adelman rejects drug guidelines

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Since the U.S. Supreme Court decided Kimbrough v. U.S., 128 S.Ct. 558 (2007), defense attorneys have been free to argue for, and district courts to impose, below-guideline sentences for crack cocaine offenses, on the ground that the guidelines are excessive.

A Jan. 24 opinion by Judge Lynn Adelman has now opened the door for the same argument with respect to powder cocaine and other controlled substances.

When the guidelines were adopted in 1987, the Sentencing Commission purported to base guidelines based on average, actual past sentencing practices.

But for drug offenses, the guideline ranges were keyed to statutory mandatory minimum sentences instead.

Drug Sentences

As a result, guideline sentences in drug cases exceed pre-guideline practice.

Accordingly, Judge Adelman concluded, “Such guidelines, which do not take account of empirical data and national experience, and do not exemplify the Commission’s exercise of its characteristic institutional role, are generally entitled to less respect.”

Looking to the nature of the offense and the defendant’s character, Adelman proceeded to impose a sentence of five months prison and five months home confinement, despite a guideline range of 27-33 months for attempted distribution of cocaine.

The defendant, William Thomas, had agreed with a government informant to broker a deal for 10 ounces of cocaine in 2004. After his arrest, he cooperated with authorities. In 2008, he was charged for the offense in federal court in the Eastern District of Wisconsin.

Less Deference

Although a sentencing court must give consideration to the applicable guideline (which was not disputed by the parties), Judge Adelman found the guideline was entitled to less deference than others, because it was not based on empirical data.

Adelman quoted Gall v. U.S., 128 S.Ct. 586, 594, n.2 (2007), in which the Supreme Court wrote that the Sentencing Commission “departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes.”

Turning to the facts of Thomas’ case, Judge Adelman concluded that the guideline range was excessive, based on several factors, most notably his limited role in the offense.

Finding that Thomas was not a dealer of significance, but simply a broker of one transaction, Adelman found that the two-level minor role reduction insufficiently took account of his lesser role in the crime. In a footnote, Adelman cited numerous commentaries arguing that the guidelines place too much emphasis on drug quantity, as opposed to role in the offense.

Among other factors warranting leniency, Adelman cited Thomas’ cooperation, limited prior criminal record, honorable service in the Army, solid employment record, and family (wife; three children).

Based on these circumstances, and “the flaws in the applicable guideline,” Adelman found five months imprisonment and five months home confinement a sufficient sentence.

Role in Offense

Interestingly, Thomas’ attorney did not specifically request a below-guideline range because of flaws in the guideline per se.

Heather Pantoga, of Pantoga Law Office S.C. in Milwaukee, said in an interview that she argued that, in this particular case, the guideline range was too high, because it was based too much on drug quantity, and not enough on Thomas’ role in the offense, cooperation, and work history.

However, she did not base her argument on any structural flaw in the applicable guidelines themselves, but only their application in this case.

Pantoga said she believes this is the first case in Wisconsin in which a below-guideline sentence was justified in part on the lack of empirical basis for the drug offense guidelines.

Scott Michelman, an attorney with the American Civil Liberty Union’s Drug Law Reform Project, noted that the decision derives directly from things the U.S. Supreme Court has said in recent cases — that the Sentencing Commission is not within its traditional role when it bases guidelines on statutory mandatory minimums, rather than empirical experience.

Nevertheless, he called the ruling significant because it shows, “judges are taking the Supreme Court at its word and recognizing that many drug guidelines are not empirically based, not just those for crack cocaine.”

Acting U.S. Attorney Michelle L. Jacobs said the Department of Justice did not intend to appeal.