Montana medicial marijuana activist gets (way-below-guideline?) probation sentence

As reported in this local article, headlined "Medical marijuana activist Daubert gets probation in federal drug case," a high-profile federal defendant got a low-level punishment in Montana yesterday. Here are the details:

Tom Daubert, who led the push for the voter-approved law legalizing medical marijuana in Montana, was sentenced Thursday to five years’ probation in a federal drug case. “I’m feeling relieved and grateful for the judge’s mercy and leniency,” Daubert said. “ … I’m very glad he recognized the uniqueness of my particular case.”

Daubert was among several people charged after federal agents raided medical marijuana businesses, including the Helena-based Montana Cannabis, around the state last year. Daubert had ended his interest in Montana Cannabis before the raids, something U.S. District Court Judge Dana Christensen noted in imposing probation.

Daubert pleaded guilty in April to a charge of conspiracy to maintain drug-involved premises, which carries a maximum potential sentence of 20 years in prison. Assistant U.S. Attorney Joe Thaggard sought a prison term of six-and-a-half to eight years for Daubert, calling him “a talented man, (who) also used those talents to exercise leadership in a conspiracy.”

But Christensen noted that Daubert had lobbied long and hard for stricter state regulations of Montana’s medical marijuana industry, and -– while he was still with Montana Cannabis -– routinely conducted tours through the company’s Helena greenhouse for lawmakers and law enforcement officers....

Christensen also sentenced Daubert to pay a total of $50,000 in forfeiture and other fees, which he’s already paid, as well as a standard $100 fee.

Daubert formed Montana Cannabis with partners Richard Flor, Chris Lindsey and Chris Williams. Flor, of Miles City, pleaded guilty in April to maintaining drug-involved premises and was sentenced to five years in prison.  But the 68-year-old Flor, who suffered from dementia and other serious medical conditions, died in custody last month after being moved to Nevada from a private prison in Montana.

Lindsey pleaded guilty Thursday to maintaining drug-involved premises. Christensen set his sentencing for Dec. 13. Williams’ trial is scheduled for Sept. 24.

Peter Lacny, of Missoula, one of Daubert’s defense attorneys, noted he’d submitted more than 70 letters attesting to Daubert’s character, more than in any other case he’s handled. Christensen noted Thursday that he’d read all of the letters and also watched two DVDs, one called “Medical Cannabis in Montana,” and the other a documentary called “Code of the West.” The latter focused on legislative attempts to reform Montana’s vague medical marijuana law, and prominently featured Daubert’s efforts.

Daubert’s work on behalf of medical cannabis patients began years ago as the head of the advocacy group Patients and Families United, which fought for the 2004 voter initiative. That work won Daubert a loyal following, and Thursday’s sentencing hearing was crowded with supporters, who mobbed him with bear hugs after it was over.

The longtime lobbyist who has spent years working the halls of the Montana Capitol said he’s not sure whether he’ll stay politically involved.  “One of the many heartbreaking moments for me right after the raids” occurred when he returned to the Capitol, he said. “Every time I walked into the Capitol, I felt its grandeur and beauty.”  But after the raids, he said, “I lost completely any kind of good feeling going in there.”

I cannot find any press report on this sentencing to confirm my suggestion in the title of this post that the probation sentence here was way below the applicable sentencing guidelines. But, absent evidence to the contrary, I have to believe that the prosecutor's recommendation of a sentence of 6.5 to 8 years came from a guideline calculation setting the suggested sentence at a range of 78-97 months (which comes from an offense level of 28 for a first offender).

I quite interested in this sentencing result not only because of my enduring concern about federal/state conflicts in the criminalization and regulation of marijuana, but also because the guideline calculation, the sentencing process and the departure/variance decision by the sentencing judge here all are notable beyond the specifics of this case and this kind of offense. (Especially if commentors express interest, I may try to track down the sentencing filings in this case and comment more on its more interesting legal elements.)

My sense is that, in many types of cases, federal prosecutors consider very seriously a sentencing appeal when a district judge varies so much from the applicable guideline as appears here. And given the enduring importance of these kinds of issues in the Ninth Circuit, which I believe is home to 8 of the 17 states to legalize medical marijuana, a strong argument could be made that the government ought to appeal in order to clarify the natural and proper application of the sentencing laws in this setting. That said, I would predict that federal prosecutors will not ultimately appeal because a fear of the consequences of a loss were they to take these matters to the Ninth Circuit in this particular high-profile setting.