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August 9, 2016

Finding (substantive?) due process violation, federal district judge refuses to apply statutory mandatory minimum made applicable by government stash-house sting

A helpful reader alterted me to a very interesting new federal sentencing opinion authored by Gerald Austin McHugh, Jr. in US v. McLean, No. 13-CR-487 (ED Pa Aug. 8, 2016) (available here). The full 29-page McLean opinion is a must-read for all persons interested in federal drug sentencing and dynamic views on sentencing limits that might be found in the Fifth Amendment's Due Process Clause. The opinion's introduction highlights why this decision is so interesting (and might make for a very interesting case to watch if federal prosecutors appeal to the Third Circuit):

The latitude given to federal authorities in charging drug offenses has been described as creating a “terrifying capacity for escalation of a defendant's sentence.”1 [FN1: United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993).]  This case exemplifies that reality, as a defendant caught by an undercover “sting” operation faces a Guideline sentence of 35 years to life imprisonment, with a mandatory minimum sentence of 25 years, because of a professed willingness to rob a drug stash house that was invented entirely by Government agents, containing a fictional amount of drugs chosen by those agents.  At sentencing, Defendant Clifton McLean argued that his sentence should be reduced because the Government improperly inflated his culpability by choosing a quantity of drugs — 5 kilograms of cocaine — that would trigger such a high mandatory minimum.

In an earlier opinion, I described the historical background of ATF “sting” cases, and concern among both judges and commentators over the consequences of this particular law enforcement tactic.  United States v. McLean, 85 F. Supp. 3d 825 (E.D. Pa. 2015).  Although I denied Defendant’s Motion to Dismiss the Indictment, resulting in his trial and conviction, as to this issue, I agree that imposing the sentence prescribed for the quantity of cocaine charged would violate his constitutional right to Due Process of Law on the facts of this case.  I have as a result imposed a sentence that excludes consideration of the amount specified by the Government, imposing only two of the three mandatory minimums for the reasons that follow.

August 9, 2016 at 11:55 AM | Permalink

Comments

They do the same thing to catch sex offenders all the time. They fabricate an "age" of a person being communicated with, then prosecute according to the "age." If a sting agent says she's 14, then the offender is prosecuted the same as if he picked up a real 14 year old.

Whether it's wrong or not is not relevent; what is relevent is the ease in which law enforcement can play this game.

Posted by: Eric Knight | Aug 9, 2016 12:23:41 PM

Eugene Volokh pointed out an interesting online solicitation case along that line the other day:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/08/08/no-strict-liability-for-soliciting-minor-online-for-sex-if-minor-claimed-she-was-above-the-age-of-consent/

State rather than federal, and of course not reaching sentencing, but still interesting. Especially because in that case there actually was a minor and there actually was solicitation, but the defendant had absolutely no way to know that a minor was at the other end of the communication.

Posted by: Soronel Haetir | Aug 10, 2016 4:46:10 AM

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