July 29, 2008
Eighth Circuit Affirms A Sentence of Probation For A Major Crack Dealer
The Eighth Circuit recently issued a decision (available here) holding that a significant downward variance was appropriate for a defendant who pleaded guilty to distributing 102 grams of crack cocaine. The defendant’s serious health conditions, along with extraordinary post-arrest rehabilitation, were apparently sufficient reasons to grant him a three-year term of probation in the form of home detention, rather than a sentence within a guidelines range of 60 months in accordance with the statutory maximum. Here is a snippet of the Court’s decision:
The district court sentenced the defendant on March 22, 2007 to a three year term of probation to be “served” at the City of Faith facility in Little Rock, Arkansas. The court ordered that the defendant could leave that facility for employment, to participate in church activities and to attend family events such as birthday parties. However, after his placement at the City of Faith commenced, that placement was terminated by City of Faith due to its inability to handle the defendant’s medical needs. On September 18, 2007, the district court modified the defendant’s probation conditions, pending the outcome of this appeal. The court placed him on home detention, allowing leave for medical care, mental health appointments, to meet with his attorney, and to attend church.
The record reveals that the defendant was 56 years old at the time of sentencing. He had undergone multiple heart surgeries in 2005 and 2006. In 2007 he received graft bypass surgery in his lower right leg. The defendant suffers from severe coronary artery disease, severe peripheral vascular disease, asthma, and other serious conditions. A letter submitted by his physician opines that defendant's life expectancy is from ten to twenty years less than the average African American male.
The sentencing record also shows that the defendant was taking eleven prescription drugs and multiple forms of eye drops. He has been diagnosed in the past with post-traumatic stress disorder, anxiety and depression. The defendant weighs 310 pounds. He suffers from sleep apnea, high blood pressure, gout, diabetes, a nerve root disease, asthma and bronchitis. His addiction to pain medication contributed to the criminal activity alleged in the indictment.
As highlighted in a post here and in a recent issue of the Federal Sentencing Reporter summarized here, the Supreme Court’s decision in Gall paved a similar way for former Wal-Mart executive Thomas Coughlin, who was sentenced to 5 years of probation and 27 months of home detention with an electronic monitoring device based in large part on his health. While some may find such extensive health departures to be controversial, the Eighth Circuit’s case is proof that departures on these grounds are available to all, regardless of the type of offense, as they should be.
July 29, 2008 at 07:29 PM | Permalink
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What's new after Gall is the courts' willingness to go ahead and do what Congress and the Commission already said they should do.
Congress said in 1983: "Other health problems of the defendant might cause the Commission to conclude that in certain circumstances involving a particularly serious illness a defendant who might otherwise be sentenced to prison should be placed on probation.” S. Rep. No. 98-225 at 173 (1983).
The Commission said that "in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment." USSG 5H1.4.
Posted by: abe | Jul 29, 2008 10:05:02 PM