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June 19, 2006

Interesting mandatory minimum opinion from the Third Circuit

The Third Circuit today has an interesting opinion today in US v. McKoy, No. 05-2461 (3d Cir. June 19, 2006) (available here), on the application of mandatory minimums and the impact of juvenile convictions.  The start of the opinion and the court's review of the defendant's arguments provide a useful summary:

Ricardo McKoy appeals from the District Court's order sentencing him to the ten-year statutory minimum for conspiracy to distribute and possess with intent to distribute crack cocaine. He contends that the District Court erred in failing to sentence him below the statutory minimum pursuant to 18 U.S.C. § 3553(f).  We affirm....

Mr. McKoy argues that the District Court incorrectly treated his juvenile court dispositions as "sentences" for purposes of calculating his criminal history points.  He also contends that under New Jersey law, his juvenile dispositions were "diversions," which are excluded from the criminal history calculation pursuant to U.S.S.G. § 4A1.2(f).  Finally, he argues that the District Court erred in concluding that it did not have the discretion, under United States v. Booker, 543 U.S. 220 (2005), to impose a sentence below the statutory minimum.

June 19, 2006 at 01:49 PM | Permalink


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I guess even the 7th cir is coming around with this 6/6/06 unpublished opinion US v. Sam, Nos. 05-2190 & 05-2418. Nonetheless, the concerns that Lamorie raises, and which we discussed in Spiller, have troubled us before, and we have repeatedly admonished prosecutors “not to indict defendants on relatively minor offenses and then seek enhanced sentences later by asserting that the defendant has committed other more serious crimes for which, for whatever reason, the defendant was not prosecuted and has not been convicted.”

Indeed, we have expressed longstanding concern over the so-called “aggregation rule,” which “grants the government a fearsome tool in drug cases” by permitting prosecutors to charge a defendant with only minor-quantity drug crimes, which may be easily proven, but then seek to enhance the sentence dramatically through relevant conduct, which requires only proof
by a preponderance of the evidence at sentencing. Duarte, 950 F.2d at 1263.

Despite our concerns with this dubious prosecutorial practice, we have not yet
stricken a sentence solely on the basis that the ratio of relevant conduct-based drug amounts is excessively high in comparison to the charged amount. Instead, we have found violations of the aggregation rule only when the government has failed to
establish that the relevant conduct was part of the same course of conduct or common
scheme or plan as the convicted offense.

In any event, the circumstances of this case do not suggest that the government was engaging in the type of conduct here that has concerned us in prior cases, i.e.,
bootstrapping a high sentence via uncharged conduct that was either unrelated to the convicted conduct or based upon a thin reed of evidence that could barely withstand a preponderance of the evidence standard, much less beyond a reasonable doubt. Cf. Bacallao, 149 F.3d at 721; Duarte, 950 F.2d at 1263-64. And although there may come a time when a sentence is deemed unreasonable in the post-Booker sentencing regime
based solely on a high ratio of relevant to charged conduct, we decline to find that this case meets that threshold.

Posted by: Welch | Jun 19, 2006 4:53:54 PM

sorry, wrong subject.

Posted by: welch | Jun 19, 2006 4:59:50 PM

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