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April 17, 2008

A constitutional crack bleg from an attorney of note

I got a call from a notable attorney who asked for help on a crack-related claim of unconstitutionality.  Here is his follow-up "bleg":

As I stated today in our telephone call, I was Brian Gall's trial attorney and want to take on a new fight.  I am interested in attacking the constitutionality of the statutory mandatory minimum for crack cocaine as found in 21 USC 841(b)(1(A)(ii).  Specifically, that statute creates a mandatory minimum sentence of 120 months for possession of over 50 grams of crack and for over 5 kilos of powder cocaine.

My client’s specific situation is that he pled to one count of possession of crack, with the factual basis of 85 grams of crack.  He had no prior criminal history and was 19 when arrested and 20 years old when sentenced.  In 2006 His guideline range was 120-135 months and because he refused to cooperate with the government he received the minimum sentence he could under the guidelines and 21 USC 841(b)(1(A)(ii), i.e. 120 months.

He has now filed a motion for a sentence modification under the new crack guidelines, which put him at a range of 87-108 months, but the government is opposing this due to the mandatory 120 month sentence found in 21 USC 841(b)(1(A)(ii). I would like to file a motion attacking the constitutionality of 21 USC 841(b)(1(A)(ii) mandatory minimum, as it employs the same 100:1 ratio that has been modified in the amended sentencing guidelines as well as criticized by the Supreme Court in Kimbrough.  Any help, ideas, research and motion drafting assistance from any other attorneys facing a similar situation or interested in taking on this fight would be greatly appreciated.  I can be reached at The Alternative Law Office of Marc Milavitz, 1733 Canyon Blvd., Boulder, CO 80302; (303) 442-2166 (phone); (303) 440-4515 (fax).   

Any assistance you or anyone else can give me is greatly appreciated.

April 17, 2008 at 06:22 PM | Permalink

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Comments

Best of luck but don't hold your breath.

Posted by: d | Apr 18, 2008 2:10:48 AM

Yeah, good luck, but I don't see how you're going to get anywhere. For your sake, I hope you're in the Ninth.

Posted by: | Apr 18, 2008 8:16:05 AM

You can't use 3582 as a collateral attack. You must bring your action under 28 USC Sec. 2255.....the law is settled against your claim....perhaps you should consider filing a dec action to determine what "new" POSSIBLE rights could be meted-out of Congress' reliance on the same type of bad data that the Sentencing Commission relied upon in formulating the original crack cocaine guidelines. Kimbrough discusses this to some extent....so now you are seeking a declaration of rights.....but what happens when you get adjudication? Hmmmm....I am not making much money today, so employ me and I will write it for you.

Ron Humphreys

Posted by: Ronald Humphreys | Apr 18, 2008 5:17:20 PM

you are a dumb ass that will never work.trying to use 3582 as a collateral attack... not gonna work. why dont you just go jump off a bridge.

Posted by: jorden pierce | May 14, 2008 12:06:42 PM

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