Judge Paul Friedman identifies drug defendant who should benefit from Clemency Project 2014

I am intrigued and pleased to have learned that this afternoon District Court Judge Paul Friedman issued an opinion in US v. McDade, No. 13-1066 (D.D.C. Apr. 29, 2014) (available for download below), which in part responds to the Justice Department's recent announcements about its new clemency initiative.  I urge all those wondering about the types of defendants and cases that the new clemency initiative might help to read Judge Friedman's new McDade opinion in full; here is a snippet that provides a sense for why:

On February 25, 2002, after a ten-day trial, a jury found defendant Byron Lamont McDade guilty of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine. Most of the witnesses at trial were his former co-defendants or others involved in the conspiracy who had negotiated pleas with the government involving cooperation and testimony. In fact, McDade was the only one of those charged in this multi-defendant case to have proceeded to trial.  Regrettably, pursuant to the then-mandatory pre-Booker sentencing guidelines, the Court was required to sentence McDade to 324 months in prison, a sentence which the Court described at the time as “much more than sufficiently punitive.”...

At the time the Court sentenced Mr. McDade nearly twelve years ago, on May 31, 2002, he was a 34-year old married man with two young children, one of whom is disabled.  He was a high school graduate who had been employed more or less steadily as a loader for United Parcel Service, as an apprentice for a plumbing company, as a self-employed operator of a company that provided transportation to the handicapped, and as a sanitation truck driver.  He was described by his wife, a hair stylist who suffers from a heart murmur, as a good father to their children and to her son by a prior relationship.   Before his current conviction, Mr. McDade had one prior misdemeanor conviction for which he was ordered to pay a ten-dollar fine. Id. at 10-11. For the instant offense, he faced a ten-year mandatory minimum sentence and, at Offense Level 41, Criminal History Category I, a pre-Booker guideline sentence of 324 months to life.....

In denying Mr. McDade’s first motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, the Court [noted that] ... had Mr. McDade not exercised his constitutional right to a jury trial and instead pled guilty, the likely sentence under even a mandatory Guideline regime would have been approximately 168 months, approximately half the sentence the Court was required to impose after Mr. McDade was found guilty at trial.  [This Court also then noted that] had the Sentencing Guidelines been advisory in 2002, or if Booker were retroactive now, the Court would vary substantially from the Guideline sentence of 324 months....

Earlier this year, Deputy Attorney General James M. Cole previewed a new effort on the part of the Department of Justice to identify individuals who are potential candidates for executive clemency and sentence commutations and whom he hoped, with the help of volunteer lawyers and bar associations, would be encouraged to prepare clemency petitions to the Department of Justice.  He said at the time: “For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments, that are out of line with sentences imposed under today’s laws, erode people’s confidence in our criminal justice system.”  Then, just last week, Deputy Attorney General Cole formally announced a new initiative to encourage qualified federal inmates to petition to have their sentences commuted or reduced by the President, an initiative that will have the assistance of numerous volunteer attorneys and groups under the umbrella Clemency Project 2014.  He noted that the initiative is not limited to crack offenders, but to “worthy candidates” who meet six specific criteria.  He stated that this clemency initiative “will go far to promote the most fundamental of American ideals – equal justice under law.” 

The Court continues to believe that Byron McDade is a prime candidate for executive clemency.  The sentence this Court was required to impose on Mr. McDade was unjust at the time and is “out of line” with and disproportionate to those that would be imposed under similar facts today.  While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the President is not.  The Court urges Mr. McDade’s appointed counsel to pursue executive clemency on Mr. McDade’s behalf so that justice may be done in this case.

Download McDade opinion