Below-guideline sentences imposed

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U.S. District Court Judge Lynn Adelman issued two noteworthy written sentencing memoranda last month, imposing a sentence well below the guideline range in each.

In one, he took into account the defendant’s minor role in the offense, even though the defendant was convicted of misprision of a felony, and the comments to the guideline states that adjustment for minor or minimal role is normally inappropriate.

In the second, he found that the guidelines for three offenses – felon in possession of a firearm; drug trafficking; and possession of a firearm in furtherance of a drug trafficking offense – combined to produce a sentence greater than necessary.

Hughes

Jonathan Hughes was convicted of misprision of a felony for his role in twice alerting his father, a heroin dealer, to possible law enforcement surveillance.

There was no evidence he personally engaged in any trafficking, and he was not a formal “look-out” during drug deals.

Pursuant to U.S.S.G. 2X4.1(a), the base offense level for misprision of a felony is nine levels lower than the level for the underlying offense, but in no event less than four nor more than 19.

The court calculated the guideline range at 30-37 months. Nevertheless, the court sentenced Hughes to 10 months, concurrent with the undischarged portion of a state sentence, citing three factors.

First, the court took into account the extremely minor role that Hughes played in concealing his father’s drug trafficking. Calling U.S.S.G. 2X4.1 a “blunt tool” for determining a defendant’s actual culpability, the court found it did not in this case.

The court did so, despite comments to the guideline that normally, no such adjustment is applicable, because an adjustment for reduced culpability is incorporated into the base offense level.

Second, the court considered that Hughes had been doing reasonably well before his arrest in complying with the rules of supervision imposed for a prior state court conviction.

Finally, the court found that a prior state court conviction unduly increased the guideline range.

Noting that Hughes received three criminal history points for the sentence, and two more for being on supervision when he committed the federal offense, plus a 14-month revocation in the state court case, Adelman wrote, “Being on supervision is an aggravating circumstance, but when the guidelines operate in this fashion they can place too much weight on that factor.”

The court found a 17-month sentence sufficient, but because Hughes had already served about seven months on the state sentence, it imposed 10 months, concurrent with the state sentence.

Jordan

Ronald Jordan was convicted of three offenses: possession of a firearm as a felon; possession of marijuana with intent to distribute; and possession of a firearm in furtherance of a drug trafficking offense.

The mandatory minimum for the last offense is 60 months, consecutive to any other sentence. Although the guideline range for the other two offenses was 70-87 months, the court imposed a sentence of 15 months, consecutive to the 60-month sentence, citing three reasons.

First, the court concluded that the guideline range overstated Jordan’s risk with a gun.

The court noted that his prior convictions did not involve weapons or violence, that he had no record of violence or misuse of a weapon, and the record contained no indication of use or threatened use of a weapon in this case.

Second, the court found that the four-level enhancement under U.S.S.G. 2K2.1(b)(6) for possession of the gun in connection with drug trafficking unduly increased the sentence.

The court did not explicitly find that the enhancement constituted double counting, inasmuch as it was premised on the same conduct that led to the 60-month mandatory minimum on the other conviction. But the court found that even if it was not “technically” double counting, it produced a sentence greater than necessary.

Finally, the court found that the four-level enhancement for obliteration of the gun’s serial number resulted in too high a range.

The court found nothing in the record indicating that Jordan was the one who removed the serial number, or even knew it had been removed.

The court wrote, “The Commission dispensed with a mens rea requirement for this enhancement but never satisfactorily explained why an increase of this extent should apply on a strict liability basis. Under sec. 3553(a), the court may appropriately distinguish between defendants who knowingly remove serial numbers or knowingly possess weapons with obliterated numbers, and defendants who lack such knowledge.”

Accordingly, the court imposed a sentence of 15 months – the bottom of the guideline range, less the above-mentioned enhancements – consecutive to the 60-month mandatory minimum for possessing a firearm in furtherance of drug trafficking.

David Ziemer can be reached at [email protected].