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February 22, 2008

More coverage of crack retroactivity realities

The Friday papers bring these two notable stories about the new retroactive crack guidelines.  From the Washingont Post here, "Crack Offenders Set for Release Mostly Nonviolent, Study Says":

Most of the more than 1,500 crack cocaine offenders who are immediately eligible to petition courts to be released from federal prisons under new guidelines issued by the U.S. Sentencing Commission are small-time dealers or addicts who are not career criminals and whose charges did not involve violence or firearms, according to a new analysis by the commission staff....

The figures are at odds with the characterization of the inmates by Attorney General Michael B. Mukasey, who would like Congress to pass legislation voiding the U.S. Sentencing Commission policy before it takes effect March 3.

From the Fresno Bee here, "Fresnan's cocaine sentence reduced: She'll be among first to benefit from new guidelines on crack":

Just two days short of her 23rd birthday, a sobbing Stacey Rena Candler was sentenced to 15 years in federal prison after what was then the largest crack cocaine bust in Fresno County history.  Now, more than 11 years later, Candler is scheduled to walk free, thanks to changes in federal sentencing guidelines that bring crack cocaine prison terms -- even ones already handed out -- more in line with those for powder cocaine.

This week, U.S. District Judge Anthony Ishii signed an order that reduced Candler's concurrent sentences -- for possession of and conspiracy to possess crack cocaine for distribution -- to the time she's already served.  Prosecutors agreed to the early release.  Candler is the first person sentenced on crack cocaine charges in Fresno's federal courthouse to have her sentence retroactively reduced, but she won't be the last.

I do not believe that the US Sentencing Commission has made the staff analysis referenced in the Washington Post article available to the public on its website, but I am hoping it will do so soon.

Some related posts:

February 22, 2008 at 02:35 AM | Permalink


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The Post article seems ambiguous at best. Perhaps "most" of the offenders aren't violent, but that doesn't contradict the claim that "many" of them are. Further, when the Post claims that the "charges" did not involve violence or firearms, does that refer to the offenses with which they were charged or the offenses of which they were found guilty? A lot of drug offenders, for obvious reasons, will plead to drug charges in return for having 924(c) charges against them dismissed. Merely because they weren't convicted of a gun offense doesn't mean they weren't charged with one, and it doesn't mean they didn't actually possess firearms in furtherance of the drug offenses.

Posted by: Steve | Feb 22, 2008 10:33:28 AM

"About one-quarter of these inmates were given enhanced sentences because of weapons charges, though the charge can apply to defendants who were actually not carrying a gun or a knife but were with someone who was armed."

25% percent in neither many nor most...

Posted by: hmmmm.... | Feb 22, 2008 2:00:05 PM

While I don't agree with the AG, I think it's fair to say that 25% constitutes "many." Also, it's a matter of semantics - the AG derives his figure of, I believe, approximately 60%, by defining "dangerous or repeat offenders" as those who have a gun charge or enhancement, OR who are in Criminal History Category II or above. We can cerainly argue (and in fact I would agree) that this is not the best way to define this class, but I think that the AG is probably TECHNICALLY accurate in his statements, using this definition.

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Posted by: Frew | May 13, 2008 9:46:13 AM

I am a convicted federal felon resulting from a "reverse sting" marijuana conspiracy wherein I was charged, along with my co-defendant, with three Federal charges.
Count 1-Attempt to possess one hundred pounds of marijuana.
Count 2- Conspiracy to distribute same
Count 3- 924(c)
My co-defendant was convicted on all three counts.
I was acquitted of only one count of conspiracy and acquitted of the attempt to possess the same marijuana I was convicted of conspiring to distribute?
I was also acquitted by the jury of the 924(c) count...beyond a reasonable doubt.
At sentencing,the Judge imposed weapon enhancement 2(D)1.1(b)1. ...by the lesser standard of proof of mere preponderance of evidence.
I served my sentence long ago but now wonder if there is/will be any consideration regarding those whose sentences were imposed (in the clearing light of Blakely, Booker) Cunningham et al.) which now appear to have been totally in violation of the Sixth Amendment right to a jury trial?
I was convicted in the Seventh Circuit.
My case can be referenced at Project Posner.
My question is in regards to how one might revisit the erroneous weapon enhancement in order to have one's record cleared of a weapon offense?
Although it seems retroactivity is in great doubt,I am wondering if error coram nobis could be my vehicle?
I simply want to clear my record of a crime I was acquitted of committing by way of jury trial 924(c)...and subsequently spent an extra year in Prison for possessing at a lesser standard of proof by way of a weapon enhancement.
The Judge ,at sentencing, made factual findings in direct conflict with the Jury's decision/intention.
Judge Baker,at sentencing, found I "possessed" a weapon and "carried" that weapon despite the Jury's finding of no weapon crime on my part.
If the jury who acquitted me of the 924 (c) count would have been given the question of whether or not I should have received a weapon enhancement for a weapon they found I did not possess or carry, what then could have been their only conclusion/decision?
The obvious facts of my case are a prime example of how (if convicted of only one of ten counts) the Judge ,at sentencing,(actually a second "trial") can always "enhance" ones' sentence to get "even"...where the Court disagrees with the bedrock decision of The Jury...and in doing so debases the purpose of a trial by jury as well as the value of a jury trial...as the final and binding trier of fact.

United States v. Dean Alan Evans - Eric K. Johnson
7th Circuit

Thank you for your consideration or any advice.
Eric K. Johnson

Posted by: Eric K. Johnson | Mar 3, 2010 1:03:04 PM

I was convicted of one count of conspiracy

Posted by: Eric K. Johnson | Mar 3, 2010 3:44:04 PM

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