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January 15, 2009

Fifth Circuit laments, but affirms, another crazy-long mandatory federal sentence

The Fifth Circuit today affirms a very long mandatory federal sentence in US v. Sterling, No. 07-30001 (5th Cir. Jan 15, 2009) (available here), but the panel was clearly troubled by what it felt forced by the law to do.  The first two paragraphs of the opinion provide the startling basics:

We are required to affirm a conviction for offenses that led inexorably to a 99-year sentence of imprisonment for a young, addicted drug dealer.  This sentence exceeds, in this court’s experience, what has been meted out to some drug trafficking kingpins.  Why the Government chose to pile on its indictment against Sterling, especially after he pled guilty to the Mullins incident, is not ascertainable from the Pre-Sentence Report (“PSR”).  This court is obliged to apply the law, but we expect that the prosecutor’s nearly unfettered discretion will not be abused. Here, we are not so confident of that precondition to justice.

Based on his recanted confession, a jury convicted Justin Paul Sterling (“Sterling”) of three counts of distribution of cocaine base, three counts of possession of a firearm in furtherance of a drug trafficking crime, and one count of possession of a firearm with an obliterated serial number. Sterling appeals the drug trafficking and firearm convictions, arguing that his conviction rested solely on his uncorroborated confession.  He further argues that because under the Government’s theory he did not receive the firearms at the time he purchased them with drugs, he did not possess the firearms in furtherance of a drug trafficking crime.  Because other evidence corroborated Sterling’s confession and showed that he possessed firearms in furtherance of a drug trafficking crime, we AFFIRM.

January 15, 2009 at 04:09 PM | Permalink


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99 years is a long time. Somehow I doubt, even 30 years hence, Mr. Sterling will be incarcerated on these charges.

Posted by: federalist | Jan 15, 2009 5:14:14 PM

What makes this opinion astonishing is that it is by Edith Jones, who is perhaps the most conservative circuit judge in the federal judiciary, and joined by Priscilla Owen and Leslie Southwick, who were both filibustered by the Democrats.

Posted by: SLP Watcher | Jan 15, 2009 5:16:18 PM

I don't know, I didn't read the case just the bit above but why wasn't the sentence appealed as "substantially unreasonable" in light of Gall? It seems to me that they appealed on the wrong things and that the court is trying to drop a big hint here.

Posted by: Daniel | Jan 15, 2009 6:02:57 PM

Much of this 99 year sentence must arise out of the mandatory consecutive sentences required by 18 U.S.C. section 924(c, for possessing firearms in connection with drug crimes. When I was in Federal prison at U.S. Pentitentiary Coleman, Florida (until early 2007), I became familiar with an inmate with an even longer sentence than this one. The inmate was convicted of 9 armed bank robbberies. He received 9 concurrent sentences of 14 years for the 18 U.S.C. section 2113 bank robberies. In addition, he received the mandatory consecutive sentences under section 924(c) for carrying a firearm in connection with a crime of violence: five (5) years for the first section 924(c) conviction, plus twenty (20) years times the eight remaining convictions equals one hundred sixty-five (165) years of mandatory consecutive time. The grand total was 179 years! No gun was ever fired, and no one was injured in any of the nine (9) bank robberies. He has now been incarcerated for about 20 years, and has exhausted all available legal remedies except a Presidential Commutation. He committed the crimes while addicted to drugs, but hasn't consumed a drug in many years now, yet he may well die in prison. These kinds of sentences seem to defy common sense, but Congress has mandated consecutive sentences under section 924(c), so the Judges have no discretion, as they do under the Guidelines. Mandatory minimum and consecutive sentences are not subject to Judicial reduction following Booker and its progeny, which only afffect their discretion under the Guidelines.

Posted by: Jim Gormley | Jan 15, 2009 6:59:04 PM

Click here to listen to Chief Judge Jones yell at the government at oral argument:


Posted by: Jay | Jan 16, 2009 1:23:44 AM

The difficulty in the way some view the law is that it is not it's own entity. People control the law, not vice versa. When judges, attorneys and/or politicians wipe their hands of a matter claiming they're "bound by the law" to do something, it's dropping their responsibility. These folks should be ashamed of themselves.

Posted by: JT | Jan 16, 2009 9:02:46 AM

Another opinion full of sound and fury signifying nothing. For example, see US v. Looney, 532 F.3d 392 (5th Cir. 2008):

"As we have previously noted, Ms. Looney was sentenced to 548 months (45 years) of imprisonment. Although the record indicates she was not spotless, she nevertheless had no previous convictions. Yet, because she was 53 years old at the time of sentencing, she was given effectively a life sentence; if she can do her part and finish her sentence, she will be about ninety-eight years old when she is released to the unimprisoned world once again. The judge, however, had little discretion in imposing this sentence. As her counsel observed at sentencing, the district court's sentencing discretion was severely limited. Because of the way the indictment was stacked by the prosecutor, Ms. Looney was subject to mandatory minimum terms of imprisonment for forty years (ten years for the drug conspiracy and possession with intent to distribute counts, five consecutive years for the first gun count, and twenty-five consecutive years for the second gun count). Although thirty years of her sentence can be attributed to possessing guns in furtherance of her methamphetamine dealing, there is no evidence that Ms. Looney brought a gun with her to any drug deal, that she ever used one of the guns, or that the guns ever left the house. Because of our serious concerns regarding the harshness of Ms. Looney's sentence, we have very carefully considered Ms. Looney's arguments..."

"Nevertheless, we must observe that the power to use § 924(c) offenses, with their mandatory minimum consecutive sentences, is a potent weapon in the hands of the prosecutors, not only to impose extended sentences; it is also a powerful weapon that can be abused to force guilty pleas under the threat of an astonishingly long sentence. For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat-rather than face the possibility of life imprisonment based on a prosecutor's design of an indictment that charges and stacks mandatory minimum consecutive sentences. We merely observe that the possibility of abuse is present whenever prosecutors have virtually unlimited charging discretion and Congress has authorized mandatory, consecutive sentences. We trust that the prosecutors in this Circuit are aware of the potency of this weapon and its potential for abuse, and that they exercise extreme caution in their use of it, all in the interests of justice and fairness."

Posted by: Mandatory | Jan 16, 2009 10:37:22 AM

Federalist, why do you think he will get out? You are aware of course that the federal system includes no parole, and that the offender can earn only 15% (or, by the magic of BOP's math 12.2%) good time. Do you think he'll be commuted? That sometime between now and 2039 massive sentence reducing legislation will be enacted before then and that such legislation will reach people convicted of possessing guns in furtherance of drug dealing?

Posted by: RW | Jan 16, 2009 6:38:44 PM

RW, I am well aware of the harshness of the federal sentencing regime. I just am betting that this guy, 30 years hence, will be let out. 30 years is a long long time, and criminals have a way of getting out of jail.

Posted by: | Jan 16, 2009 6:59:55 PM

I am quite sure that he gets the life sentence, I currently have a loved one who received a 20 year sentence, and this is his first offense...if he took the case to trial, and lost, he would serve the 99 year sentence as well.When a person is hit with that mandatory minimum, the prosecutor, Congress, and the President, are the only ones who can touch you, the judge has no say so on anything if you fall in the mandatory minimum guidelines...the system is all messed up

Posted by: CT | Feb 17, 2009 12:17:24 AM

Why do they lament? Don't they recognize the basic problem: separation of

powers? Congress must legislate; it cannot ajudicate. The President can only

commute or pardon. These mandatory minimum sentences deprive the Courts of the

power to ajudicate. The Fifth Circuit also failed to strictly construe 924(c).

By the way, I'm a frustrated defense attorney.

Posted by: Bruce | Feb 25, 2009 5:24:29 PM

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