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July 7, 2012

Documenting the extremes of stacked federal gun mandatory sentences

This recent Reuters article, headlined "Florida man sees 'cruel' face of U.S. justice," details an extreme (but not all that uncommon) federal sentencing story resulting from stacked mandatory gun minimums. Here is how it starts:

Quartavious Davis is still shocked by what happened to him in federal court two months ago.  "My first offense, and they gave me all this time," said Davis, a pudgy African American with dreadlocks who spoke with Reuters at the Federal Detention Center in Miami.  "Might just as well say I'm dead."

Davis was convicted of participating in a string of armed robberies in the Miami area in 2010.  His accomplices testified against him, saying he carried a gun during their crimes and discharged it at a dog that chased them after one of their burglaries.  But Davis was not convicted of hurting anyone physically, including the dog.

Davis would occupy no place at all in the annals of crime if not for his sentence.  Now 20 years old, he was sentenced to 1,941 months -- almost 162 years -- in prison without the possibility of parole.

On the day of Davis's interview with Reuters, the U.S. Supreme Court decided that life sentences without parole for defendants under the age of 18 constituted "cruel and unusual punishment" even in cases of murder.  Unfortunately for Davis, he was 18 at the time of his crimes.

Nonetheless, Davis's attorney will argue that Davis's sentence to die in prison also constitutes "cruel and unusual punishment" on the grounds that Davis is a "first offender," having never before been charged with a crime.

"Just as the Supreme Court recently held that the Constitution bars taking away all discretion from judges in sentencing juveniles to life imprisonment for committing murder," said the attorney, Jacqueline Shapiro, "so also is it cruel and extreme to allow unfettered prosecutorial discretion to force a sentencing judge to impose a life sentence on a teenage first offender convicted of lesser charges."

Davis's unusually long sentence results from a controversial practice known as "stacking," in which each count of an indictment is counted as a separate crime, thus transforming a first-time defendant into a "habitual criminal" subject to multiple sentences and mandatory sentencing guidelines.

"Any law that provides for a mandatory term of imprisonment for a 19-year-old first offender that exceeds a century has got to be unconstitutional," said Michael Zelman, the court-appointed attorney who represented Davis at his trial.  Zelman resigned from Davis's case after filing a notice of appeal.  If Davis's new lawyer, Shapiro, has her way, the Supreme Court may ultimately decide the issue.  The case will be appealed first to the Eleventh Circuit Court of Appeals in Atlanta.

Until then, Davis's story will be a prominent case in point for both sides in an increasingly heated debate, pitting those who would protect society from the prospective dangers posed by serial criminals against those who see the United States -- whose overcrowded prisons house fully one-quarter of all the prisoners in the world, most of them black -- as a bastion of injustice.

July 7, 2012 at 04:07 PM | Permalink

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Comments

Sorry, but armed robbery (even if successful to the point where no injuries need be inflicted) is well past the line where a life sentence is a perfectly adequate punishment. If the sentencing structure is such that the robberies themselves do not mete out such a sentence then I have absolutely no problem with using these other factors to get there.

I see this story as being more an indictment of a silly sentencing regime that does not call for life or near life terms for a crime such as armed robbery rather than any statement about using lots and lots of counts to get to the same place.

If the story were "Man gets life sentence for series of armed robberies despite being a first time offender and no injuries being inflicted" there just wouldn't be any there there. But instead because a crime of violence like armed robbery does not call for a life or near life sentence by itself we do end up with silly sounding things like his piece.

Posted by: Soronel Haetir | Jul 7, 2012 5:44:24 PM

Wait wait huh what? Stacking? Can someone please explain this to me, and the rationale behind it? So each crime in the indictment is construed as a separate offense for the purposes of habitual offender sentencing? I get that he committed multiple offenses, that it was a string of robberies....but isn't the point behind sentence enhancements for habitual offenders that prior encounters with the criminal justice system have not deterred them, thereby mandating an increased punishment? How does that wash when someone is a first time offender?

Oy.

Posted by: Guy | Jul 7, 2012 6:16:39 PM

Excuse me, again, we are in the world of lawyer fiction. First offense means first adult adjudicated conviction.

There should have been a count from age 14. He should have been executed long before age 18, and his "string of armed robberies." Now, we are reading an article that is sympathetic to this violent criminal, if pointing a gun and taking people's stuff is a violent crime. Stunning misplacement of sympathy. Not one mention of the V word, by Reuters, a disgusting, totally biased, left wing propaganda outlet.

Posted by: Supremacy Claus | Jul 7, 2012 8:18:41 PM

Guy: Stacking is a prosecutor game to get a plea bargain.

Posted by: Supremacy Claus | Jul 7, 2012 11:48:19 PM

well soronel if that is true and i'm saying IF then the state needs to have the balls to admit it in the criminal code not applying it in this assbackward way that is patently illegal. Sorry one crime ONE charge. in this case the same would happen since this was first time they caught him in his spree. but like any other govt law that was passed for good and legal reasons it has been PERVETED by the criminals now running this country. To even think a HABITUAL OFFENDER law applies to ANYONE on their FIRST appearance in front of a judge...well i think anyone retarded enough to think this way needs to either be locked in a rubber room for LIFE for the protection of society....or KILLED. This criminal stupidity of charging someone with 5-10-20 diff counts for the same 5 min's of criminal activity would have gotten the DA hung back in the 1800's

Posted by: rodsmith | Jul 8, 2012 2:55:29 AM

Presumably, indictments should accurately track the defendant's behavior.

This guy committed seven robberies, each with a loaded gun. The article does not say over what period of time this happened, but implies it was weeks or months. I think we would have heard about it if it occurred in the same day.

Time after time, we hear on this site that sentences are too high for the "low level, non-violent offender." There is nothing low level or non-violent about this guy, but the tune just never changes: The sentence is STILL too high.

Good grief. If ever a fellow has demonstrated that he lives by his own rules, poses very significant danger, and needs to be separated from civil society for as far as the eye can see, this is the guy.

This should be obvious from the excerpt of the news story given, but is yet more obvious from this additional line that, oddly, seems not to have made its way into the excerpt:

"According to the trial transcript, one of Davis's accomplices testified that he fired his weapon on two occasions - at the dog who chased him and 11 days later outside a Wendy's restaurant they had just robbed. He said Davis traded gunshots with a customer at the restaurant as he and three others sped away in their getaway car."

Oh, OK, he was in a shoot-em-up, not with a dog, but with a customer.

And this is a fellow you want back on the street?

Fine. Put him back. Just not on any street near me, thank you.

P.S. The article also says this: "On the day of Davis's interview with Reuters, the U.S. Supreme Court decided that life sentences without parole for defendants under the age of 18 constituted 'cruel and unusual punishment' even in cases of murder."

That is just flat-out false, although I'm sure the let-'em-out-now crowd will find a way to tell us that it's just, ya know, a misprint, or (more likely) that falsehood is no big deal when enlisted in the cause of a harmless guy like an armed robber.

Posted by: Bill Otis | Jul 8, 2012 7:28:40 AM

Did Grits write this article? It is as much of a fairy tale as his run-in with the police...

Posted by: TarlsQtr | Jul 8, 2012 10:39:31 AM

"His accomplices testified ... he carried a gun during their crimes and discharged it at a dog that chased them after one of their burglaries."

What a surprise. The damning evidence came from accomplices highly highly motivated to provide damning evidence.

You know, 40 years ago -- before extorting/bribing co-defendants for pivotal testimony was sanctified as an institutional norm ... before grandstanding pols sidelined judges with MMs and draconian sentencing guidelines -- armed robbery with no injuries or deaths might have landed an 18-year-old perpetrator a sentence of two, five or maybe 10 years.

Back then, wild, reckless and, OK, menacing 18-year-olds had a chance at redemption after serving sentences tailored by judges rather than demagogic politicians.

Given the mindlessly punitive nature of a system that meets out 162-year sentences for allegedly shooting at Fido, it's a wonder more criminals don't opt for killing all potential witnesses and shooting it out when the cops show up. I mean why wouldn't they? What would they have to lose?

Posted by: John K | Jul 8, 2012 11:42:26 AM

oops. metes (not meets) out

Posted by: John K | Jul 8, 2012 12:09:51 PM

John Kay,

I am too young to have experienced those times, but from what I have read such systems were done away with in large part because it was realized that many judges, when given the choice, do not in fact craft sentences appropriate to the severity of the crimes committed and the harms inflicted.

Offenders have to want to change before there is any chance they will change, in the meantime the best we can hope for is to remove their ability to commit crimes against the rest of us. And given the behaviors under examination I would much prefer that we as society err on the assumption that any given offender has not changed.

Now, I do have some problems with the testimony in the case, at least as it was presented in the article (though given the other errors I'm not certain I would be entirely trusting of the articles account of such things), but those concerns go to the admissibility and weight of evidence (if I were on a jury I would discount pretty much anything anyone who was getting any sort of benefit out of testifying had to say at least without some reason to believe that came from a source entirely free of such taint), not the appropriate sentence once guilt has been determined. And since Mr. Davis does not seem to particularly dispute his involvement in the actual underlying robberies, only his degree of culpability in them and how long he should be locked away, I fail too see a problem with a life sentence in his case. As I said before, armed robbery is far past the point where I believe permanent removal from society is entirely just.

Posted by: Soronel Haetir | Jul 8, 2012 12:31:12 PM

Dude deserves a long sentence.

But, does he deserve a longer sentence than a murderer?

Posted by: Calif. Capital Defense Counsel | Jul 8, 2012 1:33:45 PM

I was around before the justice system went crazy, Soronel.

From my wrinkled, gray-haired perspective, our get-tough era mostly reflects the opportunism of Nixon and post-Nixon politicians who built secure careers demonizing and striking back at war protestors, hippies and the "lawlessness" and "drug culture" of the 1960s -- as well as Soronel's liberal, lenient judges who never would have considered imposing a life sentence on an 18-year-old for shooting at a watchdog after a stick-up.

Posted by: John K | Jul 8, 2012 1:34:08 PM

John K --

He didn't get his sentence for shooting at a dog. He got it for seven armed robberies in which the evidence (hidden from the original excerpt -- now why would that be?) was that he had a gun battle with a customer as well.

But to you, seven armed robberies is, hey, you know, bad enough to get held back from recess, but really, how could a compassionate society think so poorly of merely "wild, reckless and, OK, menacing" teenage frolics?

Yikes. Even CCDC gets this one, for the most part. I'm afraid you're out on this limb pretty much by yourself.

Posted by: Bill Otis | Jul 8, 2012 2:31:57 PM

Soronel --

Now, as often, your common sense blows away the opposition.

Posted by: Bill Otis | Jul 8, 2012 2:34:48 PM

Hey, Bill & Soronel:

I completely get that we don't want to let repeat, violent offenders out. That's why we have habitual offender sentencing, etc etc. I get that, I really do. And I'm also in the same boat with CCDC that this guy needs to do a pretty substantial amount of time.

But here's my problem -- all that stuff about habitual offenders and not wanting to change only matters once we start talking about someone at least having had their first contact with the criminal justice system. Like the entirety of the rationale behind increased penalties for repeat offenses is because the less draconian sentence for the first offense didn't take, so let's ramp it up a little.

So I'm just trying to understand what the justification is for treating this guy as a repeat offender when it's his first offense? I understand that he participated in a string of armed robberies, that armed robbery is a serious offense, that he shot at a dog and possibly also a person (and, even for my purposes, we'll go ahead and assume that's true).

But one of the purposes of the criminal justice system is to try to get the offender to change, is it not? So how is it right to say that the system has failed to effect a change in this individual when it hasn't even had a chance to work its magic yet?

Cheers.

Posted by: Guy | Jul 8, 2012 4:03:49 PM

Guy --

"But here's my problem -- all that stuff about habitual offenders and not wanting to change only matters once we start talking about someone at least having had their first contact with the criminal justice system."

The only reason he got his "first contact" after No. 7 was that he was slippery and/or dangerous enough to avoid arrest after Nos. 1 through 6. This is not exactly an argument for leniency.

"Like the entirety of the rationale behind increased penalties for repeat offenses is because the less draconian sentence for the first offense didn't take, so let's ramp it up a little."

No, that is not the entirety of the rationale for increased penalties for repeat offenses. By far the more important part is that repetition (a) multiplies the danger to the public and (b) indicates that the behavior is not an abberation, but an increasingly ossified decision about how he wants to behave.

"So I'm just trying to understand what the justification is for treating this guy as a repeat offender when it's his first offense?z'

It's not his first offense. It's the first time he got caught for his multiple offenses.

"But one of the purposes of the criminal justice system is to try to get the offender to change, is it not?"

It is a subsidiary purpose, yes. The more important purposes are (1) to impose just punishment, (2) protect the public and (3) deter others thinking about following the same path.

"So how is it right to say that the system has failed to effect a change in this individual when it hasn't even had a chance to work its magic yet?"

Initially, because the other, more important purposes noted about are paramount. Second, because it is the individual's job, not the state's, to control his behavior. Third, because there is no magic to offer. What actually gets "offered" is a recidivism rate of over 60%, regardless of all the money that's been dumped into rehab programs over the last 40 years, which has been billions.

An armed robber perfectly willing to kill the victim (and with sheer luck to thank that he hasn't done so already), and one who has displayed this willingness not once but multiple times over the course of weeks or months, is as bad a bet for release as you can find. I hope his new lawyer does indeed go to SCOTUS with this one. Even Justice Kennedy will choke on it.

Cheers.

Posted by: Bill Otis | Jul 8, 2012 4:57:11 PM

Pity the thickly calloused souls -- some of whom post here routinely -- who seem to think no punishment short of abject ruin or execution is sufficient for all but the pettiest of crimes.

Whereas virtually any period of incarceration in the hell I imagine prisons to be -- even if "only" a year or five or 10 -- strikes me as profound, soul-shattering punishment. But then I enjoy life and value liberty above almost anything else. I'm not sure what drives the ultra punitive folks.

Please spare me the parade of horribles, Bill. I don't want Sandusky or other irredeemable predators to roam free any more than you do.

Charge stacking? Ham-handed prosecutor schtick under the same heading as creative/expansive readings of statutes, threatening to persecute defendants' spouses/relatives, concealing Brady material, gaming deadlines to disadvantage defendants, artful demonization of arguably benign behavior and so on.

Yes, Bill, I'm against all of that stuff...because I wouldn't want any of it used against me if I ever found myself standing before the beast.

Posted by: John K | Jul 8, 2012 5:08:44 PM

John K --

In any other context, you'd be shouting bloody murder at a 50 count indictment. Count stacking! Count stacking! Isn't that your constant refrain?

The problem with Sandusky is that he exposes what defense lawyering is really about, i.e., painting the prosecutors as Nazis as a way of diverting attention from the behavior of the client.

The reason it's not count stacking with Sandusky is the same reason it's not count stacking in other cases: Each count corresponds to a crime defined by statute. Prosecutors are no more required to throw legitimate statutory offenses under the bus for some white collar swindler than they were for Jerry.

You routinely hold prosecutors up to the worst scorn and calumny you can think of, but who was it who put Sandusky away, and who was it who wanted him back on the street?

Finally, you unintentionally give yourself away with this charge against the supposedly dirty pool engaged in by prosecutors -- that they stage "artful demonization of arguably benign behavior."

That, of course, was EXACTLY what Sandusky's lawyers said about his prosecutors -- that Jerry was just doing horseplay in the shower ("arguably benign behavior"), and that the prosecutors dishonestly were trying to sell it to the jury as boy rape ("artful demonization").

John, you really stepped into it with that one. Far from distancing yourself and your white collar friends from Sandusky and his defense, you repeated virtually verbatim the central sleazebag element they share.

Congratulations!

Posted by: Bill Otis | Jul 8, 2012 5:37:49 PM

Bill:

"The only reason he got his "first contact" after No. 7 was that he was slippery and/or dangerous enough to avoid arrest after Nos. 1 through 6. This is not exactly an argument for leniency."

I'm not saying he shouldn't be punished, or even punished severely. In fact, I'll even for the moment set aside any argument about whether or not the punishment imposed is just or unjust in this particular circumstance. My concern and question is mainly resting with the fact that he is being sentenced as a habitual offender, and I'm trying to understand how that is anything but an example of prosecutorial sophistry.

Like take my case, for example. I had downloaded and viewed a great deal of pornography, including child pornography, in the five year prior to my arrest and prosecution. Under this stacking regime, each incidence of viewing child pornography would be treated as a second, subsequent, repeat offense which would have given me enough time to be buried under the prison. Instead, after my first contact with the criminal justice system, as I've talked about before, I've worked hard to do things differently.

I know that there are people who think that the sentence that I did actually receive was nowhere near enough, and that there are some who think that no punishment for me, short of execution or mutilation, would be sufficient. That's fine -- whatever you think of this gentleman's sentence, or my sentence -- isn't really the point I'm trying to bring up.

"No, that is not the entirety of the rationale for increased penalties for repeat offenses. By far the more important part is that repetition (a) multiplies the danger to the public and (b) indicates that the behavior is not an abberation, but an increasingly ossified decision about how he wants to behave."

I agree -- I agree with all of that. Which, in my mind, would qualify him for an increased penalty. Commit seven armed robberies, get sentenced on seven armed robberies. Absolutely.

What I don't understand is translating that over into saying he gets sentenced as a habitual felon if he was never a felon prior to the plea.

"It's not his first offense. It's the first time he got caught for his multiple offenses."

Which, as my experience with the judicial system, both personal and professional indicates, that means it is his "first offense" for the purposes of habitual offender sentencing -- or at least *did* mean that until I started trying to wrap my head around the concept of stacking.

"It is a subsidiary purpose, yes. The more important purposes are (1) to impose just punishment, (2) protect the public and (3) deter others thinking about following the same path."

I realize it's a value call as to whether rehabilitation is a subsidiary purpose, and it's also a value call as to what qualifies as just punishment. Protecting the public and deterrence are somewhat more empirical questions, however.

But regardless, even setting aside the justness of the punishment. For example, if he was given an above-guidelines sentence just on the basis of everything charged without going into habitual offender sentencing, this discussion would be very different. The focus would be on that he was a teenager, getting more time than a murderer, and so on (though I know that's still a part of it).

But that wasn't the way it got there -- it got there by saying he's a habitual offender, which again, to me, turns the notion on its head. Being that you're a former federal prosecutor, I'm hoping you can 'splain it to me.

"Initially, because the other, more important purposes noted about are paramount. Second, because it is the individual's job, not the state's, to control his behavior. Third, because there is no magic to offer. What actually gets "offered" is a recidivism rate of over 60%, regardless of all the money that's been dumped into rehab programs over the last 40 years, which has been billions.

An armed robber perfectly willing to kill the victim (and with sheer luck to thank that he hasn't done so already), and one who has displayed this willingness not once but multiple times over the course of weeks or months, is as bad a bet for release as you can find. I hope his new lawyer does indeed go to SCOTUS with this one. Even Justice Kennedy will choke on it."

I know that we're going to disagree on whether or not he should be given a second chance, that's fine -- we see it differently. I would say though that since the tough-on-crime drumbeat of the mid to late 70's on through present day, rehab has taken a back seat. I wouldn't say that a 60% recidivism rate has been a failure of rehabilitative programs, as rehabilitative programs have not been given much of a chance to succeed or fail as of late, either way. As you said, rehabilitation has become a subsidiary purpose of the criminal justice system.

I don't think anyone is saying this guy shouldn't do time, and probably a lot of it. But, then again, he was a teenager at the time -- I realize some months on the wrong side of the "adulthood" line -- but nevertheless with the same developing brain.

But, again, I know we'll disagree on the severity of the sentence. You say it's just, I say it's crap, ho hum. That's fine -- I doubt regardless of the words that either one of us put to the task, we're not going to change one another's mind on it.

What I am curious about though, is what's the legal rationale behind stacking, as opposed to just going way above guidelines?

Cheers.

Posted by: Guy | Jul 8, 2012 6:23:04 PM

Because a prosecutors' characterization of Sandusky was determined by a jury to be accurate, what other prosecutors routinely say about ordinary white-collar defendants must also be true?

I don't follow the logic.

Posted by: John K | Jul 8, 2012 6:23:15 PM

With respect to the point where the rubber meets the road in this case, i.e., the sentence Mr. Davis should ultimately receive, I'm confident that John K. and I would be in substantial agreement on the duration of the prison term he should receive, while Bill Otis would support a much longer term, like the term he did in fact receive.
I doubt the term Davis received is proportionate to the terms received by his cooperating accomplices, whose culpability was probably comparable to Davis.
Cooperation with the government is weighted far to heavily in the adjudication of federal cases. Proportionality and relevant offense conduct should be weighted more heavily.

Posted by: Calif. Capital Defense Counsel | Jul 8, 2012 7:30:16 PM

i have to agree. sorry bill but if this get's to the USSC it should in fact CHOKE on it and then spit it back out and reversed!

Sorry under no stretch of even a fucktard politician can a FIRST TIME visit to court get you CHARGED and CONVICTED of being a habitual offender!

that was just CRIMINAL STUPIDITY on the part of the DA!

Posted by: rodsmith | Jul 9, 2012 2:07:56 AM

Let's print up a bunch of signs to post in liquor stores, 7-11s, motel offices and the like saying: "ATTENTION THUGS: IF YOU HAVE ALREADY COMMITTED THREE OR MORE ARMED ROBBERIES, PLEASE CONSIDER THIS A FREEBIE."

Posted by: A Modest Proposal | Jul 9, 2012 10:41:11 AM

horse pucky a modest prop! nobody said not to hammer him. i also have no problem with LWOP for someone involved in 7 armed robberies! my only problem is with the lazy idiot DA who didn't do their JOB!

take the man to trial....one robbery at a time.... instead of being lazy and shoving them all into ONE trial. darn at the 3rd one...he's now a CONVICTED multiple conviction offender...THEN the HABITUAL OFFENDER law apples...NOT BEFORE!

Posted by: rodsmith | Jul 9, 2012 12:16:27 PM

What I am curious about though, is what's the legal rationale behind stacking, as opposed to just going way above guidelines?

The difference is that a departure is at the discretion/whim of the judge and it it is generally not appealable that the judge does not go above the applicable guideline range when sentencing. By using multiple convictions in the manner set out here the prosecutor brings mandatory sentencing into play.

Posted by: Soronel Haetir | Jul 9, 2012 12:41:43 PM

Can someone tell me why this is a federal crime? There's mention of the Hobbs Act, but I don't get the connection.

Posted by: justme | Jul 9, 2012 1:24:31 PM

@ Soronel:

I fully understand that difference in effect that stacking as opposed to just going above guidelines has, but I guess what I'm asking is what makes stacking anything other than prosecutorial sophistry?

Posted by: Guy | Jul 9, 2012 2:01:08 PM

Guy,

I'm not sure I understand your question.

My understanding from reading other federal sentencing stories and appeals, but not having any direct contact with it, is that if the prosecutor had simply gone with the robberies that the eventual sentence probably would have been somewhere in the 10 to 20 year range. Under that scenario the prosecutor could ask the judge to go above whatever the guideline recommendation laid out, possibly even very far above to the point of reaching the actual sentence that was imposed here, and if the judge had agreed Mr. Davis probably would have lost on appeal, but on the other hand if the judge had not agreed or had even granted some motion by Mr. Davis to go below the applicable range then the prosecutor would likely have lost on appeal.

Instead, by proving these extra counts the prosecutor was able to remove that option. And I fail to see how using the available tools to force what I see as a just sentence is at all unreasonable.

As I have already said, I see this being much more about the silly nature of our sentencing regime that does not already require a life or near life term for armed robbery standing alone. I agree that a term of 160 years is incredibly silly, but in Mr. Davis case I would not see a term of natural life being at all disproportionate to his crimes and would in fat prefer to see him executed.

Posted by: Soronel Haetir | Jul 9, 2012 3:42:12 PM

I fail to see why this practice is even controversial.

Seven armed robberies is not one crime. The state does not owe him a stack of free passes because he was originally able to elude prosecution for the first six.

There ARE people in prison worth shedding a tear over (made one stupid decision that he truly feels regret for). This individual is not one of them.

Posted by: TarlsQtr | Jul 9, 2012 3:50:40 PM

I'll try to rephrase. The way I'm understanding it is that it's like the idea of three-strikes-and-you're-out -- your third strike, you're out. That's the idea, right? Same sort of idea in the federal system with habitual offender sentencing under the FSGs.

My understanding of the rationale behind three strike laws was that dude has had two chances to reform his behavior and won't get a third. The ramping up the penalty is justified on the basis of the protection of the public (at least ostensibly) and deterrence, not necessarily anchoring the punishment to fit the predicate offense.

So for example, if someone goes out and commits one felony, gets sentenced, they're then a felon. Then they commit another offense, now a repeat offender. Then a third, and then they get the sentence enhancement for being a habitual offender.

In this case, he went out and committed a bunch of felonies, got caught, and now the indictment is being construed to make him eligible for the same sentence enhancement as someone who is on their seventh, not first, felony conviction? I am having difficult understanding that, and why it is anything other than prosecutorial sophistry.

I'm not disagreeing that these are serious crimes, or that he should do some serious time. Hell, like I said, for argument's sake, I'll agree that the sentence is fine and dandy. Lock 'em up, throw away the key.

But my question isn't still resolved. What's the legal justification for saying this guy is a repeat offender as opposed to just flat out sentencing him on his string of armed robberies as a first time offender?

I hope maybe that makes it a little more clear. I'm not taking issue with the length of the sentence (well, I mean, I do take issue with it but that's neither here nor there) but I'm focused on the procedural mechanism used to get there. Like, if the judge would have just given him even an above-guidelines sentence to give him natty LWOP, okay, that's a different problem. I'd say it's too much, you'd say it's just, and we'd fling poo at each other or something. But I'm trying to poke a different sleeping bear with this question, not so much the reasonableness of the sentence.

Posted by: Guy | Jul 9, 2012 4:43:31 PM

Guy,

Okay, those are fair. But as far as I can tell to answer those questions would require going beyond the Reuters article, Unfortunately the searches I have done have been dominated by news sites reposting the Reuters piece and by bloggers commenting on that article (much as here), rather than what actually happened in court.

The one thing I did find is the United States Attorney's press release on the case:
http://www.justice.gov/usao/fls/PressReleases/120501-02.html

It is apparently not exactly fair to say no one was injured during these robberies, though Davis himself might not have inflicted any of them. I am perfectly fine with the felony murder rule and a lesser application as a felony injury rule when a co-conspirator in crime injures someone during the commission of a crime.

It does look like Davis was swung for the fences and whiffed by going to trial at all, although that isn't particularly uncommon. The cooperators got sentences ranging from 9 to 22 years (the one who got 9 took part in only one of the robberies).

The press release doesn't say anything about use of a habitual or repeat offender enhancement. Though it also doesn't say much of anything about how the sentence was actually arrived at so that's not all that helpful.

Posted by: Soronel Haetir | Jul 9, 2012 6:09:10 PM

Soronel:

Thanks for the link. And yeah, he's definitely not a nice guy (nor were his friends, one of whom at least according to the press release stomped a manager for not opening the safe fast enough).

But then what disturbs me is that his friends, in fact no one else mentioned there seems to have gotten a stacked sentence like this. If they're all more or less culpable, then doesn't this seem like a pretty egregious trial penalty? I'm not saying that it should be at the level of his co-d's that are pleading out, hence the benefit of the bargain, but 163 years compared with less than ten percent of that for what appears to be the same role?

It's just not gelling here with me.

Posted by: Guy | Jul 10, 2012 12:42:32 AM

Guy,

I have been able to find some additional commentary that seems to make sense, but since it is not from an official site I'm not sure how trustworthy it is.
http://www.debateandrelate.com/showthread.php?t=20766

As far as it goes, according to this as least, there need be no habitual offender enhancement or repeat offender or any such thing.

Most of the time came from seven counts of use of a firearm in furtherance of a crime of violence.

The first of those got Mr. Davis 7 years, each of the six additional counts carried a mandatory 25 years that are required by the statute to run consecutively. And then the other five years or so gets rounded out from the rest of the convictions.

At least if this is accurate I can see you arguing that it is simply too much time but I have a hard time arguing with the procedure used to get there.

I think the following is the relevant statutory section, at least if the above accurately describes what Mr. Davis was convicted of:
http://www.law.cornell.edu/uscode/text/18/924

The important parts of that would seem to be:
the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during
and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses
or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence
or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.
(B) If the firearm possessed by a person convicted of a violation of this subsection—
(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less
than 10 years; or
(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment
of not less than 30 years.
(C) In the case of a second or subsequent conviction under this subsection, the person shall—
(i) be sentenced to a term of imprisonment of not less than 25 years; and
(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment
for life.
(D) Notwithstanding any other provision of law—
(i) a court shall not place on probation any person convicted of a violation of this subsection; and
(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person,
including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

Certainly as I read that each separate conviction after the first carries a mandatory term of at least 25 years.

Posted by: Soronel Haetir | Jul 10, 2012 11:18:44 AM

justme,

The Hobbs Act (18 USC 1951) makes it a federal felony to "obstruct, delay or affect commerce or the movement of any article or commodity in commerce by robbery or extortion," or to attempt or conspire to do so, or to threaten violence to any person or property to do so.

The Act was originally directed at organized crime and labor thuggery. However, by its very broad terms it covers just about any robbery. When federalism advocates complain that the U.S. Code now contains so many broadly defined crimes that it has for all practical purposes superseded state criminal codes (the traditional domain of garden variety crimes like robbery), they're right.

The gun statute used in this case punishes the possession or use of a firearm in the course of any federal crime of violence. The federal crimes of violence charged here (in US court) were local armed robberies. Those robberies were described in the indictment as "obstructing, delaying and affecting commerce and the movement of articles in commerce" through robbery, "in that the defendants did take United States currency and other property" from and in the presence of people employed by various commercial businesses.

Basically, under the Hobbs Act, robbing any business is a federal crime.

Posted by: Def. Atty | Jul 10, 2012 1:12:07 PM

Soronel,

I think Guy's argument about habitual offender laws can be captured in arguing about the meaning of the condition in 924(c)(1)(C): "In the case of a second or subsequent conviction under this subsection, ..."

The Q is, for this section to apply, does there need to have been an earlier indictment and conviction? That would be the case under Guy's rationale about whether the statute is designed to reach defendants who have refused to change their ways even after earlier conviction and punishment.

The Supreme Court said no. The Court has ruled that second and subsequent counts in a first-time, multiple-count indictment count as "second or subsequent conviction[s]." (I don't remember the case; I'm sure others can name it.) Under that interpretation, the first count of conviction in the indictment gets the first-time punishment (usually 5 years, here, because the gun was brandished, 7 years). Every count of conviction thereafter gets 25 years per count, consecutive, mandatory. (Unless it's a machine gun, bomb, or a gun with a silencer, in which case it's mandatory life).

What Congress did with this statute--what is the purpose of every mandatory minimum statute--is to remove sentencing discretion from the sentencing judge. These "stacking" minimums now apply as a matter of law; the judge has no choice. If the D did it, and the prosecutor charged it, and the jury convicted for it, the only thing left is the math. There is no mercy and no relief on appeal. The only out is executive clemency.

With that being the case, the only player in the system with any discretion is the prosecutor. The judge has none. [OK, I can hear it--I'll say it before Bill or Tarls says it. The defendant of course retains discretion not to commit crimes.]

I'm not wading into the debate here, just explaining the facts.

Posted by: Def. Atty | Jul 10, 2012 1:28:01 PM

Guy, at 12:42 you put your finger on the other issue here. It's not mandatory minimums or stacking. It's the large-size relative reward snitches can get for snitching. Yes, sentences of 9 to 22 for the snitches, vs. 163 for the guy who went to trial, look like a fairly daunting disparity.

On the facts of this case, as reported, everyone deserved to go to jail for a very long time. I don't see much mileage in debating whether 22 years, life, or something in between is the appropriate sentence for these crimes, or whether this particular disparity is unfair in this case. Reasonable people may differ.

But apart from these facts, you can see in the abstract (a) how snitches might be highly motivated to incriminate others to improve their own situation; (b) how defendants looking at mandatory life in prison if they go to trial and lose might be motivated to plead and cooperate (even if they didn't do it) to avoid life in prison and get sweet deals; and (c) how the defendants in (b) become the snitches in (a). If the prosecutor can give the D a choice: mandatory life in prison if you go to trial and lose, versus some sweet deal (a year or two, or five, depending on the facts--commonly probation in the white collar world), that's pretty big motivation for the D to plead and cooperate (i.e., snitch on others), irrespective of whatever the truth may be.

That's the system we have now, it's constitutional, and that's how it operates every day. By removing judicial discretion from the equation, harsh mandatory minimum statutes increase the prosecutor's leverage in this system.

Many prosecutors exercise that leverage responsibly. Some prosecutors abuse it. In any given case, it is virtually certain that people will line up and argue, vociferously, that the prosecutor's actions are either responsible (on one side) or abusive (on the other). That's what lawyers, court-watchers, victims, defendants, families, TV talking heads, and lawblog commenters do.

It may be good, it may be bad, we have not devised anything better. Those are the facts of the system we have.

Posted by: Def. Atty | Jul 10, 2012 2:03:55 PM

Def. Atty | D,

Given that Congress has proven itself quite able to distinguish recidivist enhancements from simple multiple count enhancements I would certainly go with the reading here that does not require a completed trip through the court system prior to application of this particular provision. I would only require that the counts be for distinct offenses, robbing a gas station at 10am and a deli at 11 sure, but not for threatening first one person and then another during the same robbery.

From later in the same chapter:
(e)
(1) In the case of a person who violates section 922 (g) of this title and has three previous convictions by any court referred to in section 922 (g)(1)
of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under
this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or
grant a probationary sentence to, such person with respect to the conviction under section 922 (g).

I would read that language unlike the earlier to require that the convictions at least be entered at the time of the new indictment is issued.

Also, while this is not nearly as solid as the rest of what I've found, there is some indication in
http://fl.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110823_0000810.SFL.htm/qx that Davis may have taken part in more robberies than the other defendants. And if that is true I could potentially see him being more culpable overall even one of the other accomplices inflicted physical injuries during at least one of the crimes. I do have to wonder if he was offered any sort of deal (even 40 or 50 years), I have a hard time believing this sentence was actually any sort of surprise to him after his first meeting with a lawyer.

Posted by: Soronel Haetir | Jul 10, 2012 3:25:54 PM

The sentence definitely should not have been a surprise. Any lawyer reading the indictment could tote up the potential sentence count by count. For the Hobbs Act (robbery) counts, the math might be a little complicated because you'd have to do Sentencing Guidelines analysis. For the 924(c) counts (i.e., the gun counts), it's easy. Everything you need to know is in 924(c)(1)(C)(i): after 5 or 7 years for the first count, it's 25 years per count thereafter. Consecutive. Mandatory.

Your digging in this (very long, very dense) statute shows what is often pointed out in judicial opinions: that when Congress means to use different meanings in different parts of the same statute, it is capable of doing so. The difference between 924(c)(1)(C) and 924(e)(1) is striking as you point out. Though not necessarily conclusive--924(e)(1) requires that the 3 priors have been "committed on occasions different from one another," but doesn't say whether the convictions have to have been in the same or different judicial proceedings. A multiple-count indictment might still qualify.

But overall, the Supreme Court agreed with you. So how's your law school app. coming?

Posted by: Def. Atty | Jul 10, 2012 5:43:17 PM

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