U.S. v. Dicus
| Decision Date | 24 September 2008 |
| Docket Number | No. CR 07-32-MWB.,CR 07-32-MWB. |
| Citation | 579 F.Supp.2d 1142 |
| Parties | UNITED STATES of America, Plaintiff, v. David DICUS, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Chadwicke Leroy Groover, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Michael L. Mollman, Mollman Law Office, Cedar Rapids, IA, for Defendant.
I. INTRODUCTION...................................................................1144
A. Factual Background..................................................1144
B. Procedural Background...............................................1145
1. The charges and Dicus's plea..............................1145
2. The PSIR and sentencing arguments.........................1147
3. The prosecutorial misconduct issue........................1147
C. The Sentencing Hearing..............................................1148
II. LEGAL ANALYSIS................................................................1150
A. The Prosecution's Breach Of A Plea Agreement.........................1150
1. Due process implications...................................1150
2. Recidivist prosecutorial misconduct in the Northern District of
Iowa.......................................................1150
3. The applicable two-step analysis...........................1151
B. The Two-Step Analysis Here...........................................1151
1. Step 1: Determination of breach ...........................1151
2. Step 2: Determination of the appropriate remedy............1152
a. The typical remedies.............................1152
b. Dicus's entitlement to relief............... ....1154
c. Inadequacy of the typical remedies here..........1155
d. The "touchstones" for the appropriate remedy.....1156
e. The appropriate remedy here .....................1157
C. Reasonableness Of The Resulting Sentence.............................1161
1. The "reasonableness" analysis...............................1161
2. The balance of the § 3553(a) factors...................1162
III. CONCLUSION ...................................................................1163
At a sentencing hearing on September 9, 2008, I announced that I was reducing the defendant's sentence from the high end to the low end of his advisory guidelines range as a sanction for the prosecution's serious breach of the defendant's plea agreement. I would otherwise have sentenced the defendant at the top of his guidelines range based on his sales of marijuana to minors, which was a factor not reflected in his advisory guidelines range. However, the Chief Judge of our district had already found the prosecution's breach of the plea agreement to be prosecutorial misconduct, and I imposed the sentence reduction, at the defendant's request, as the appropriate sanction for such serious misconduct. I now enter this memorandum opinion and order to memorialize more fully my rationale for granting a sentence reduction as a targeted remedy for serious and recidivist prosecutorial misconduct.
In a plea agreement, dated May 29, 2007, the parties stipulated to the following pertinent facts:
A. On March 10, 2006, Tami Dicus [a co-defendant] knowingly and intentionally distributed marijuana to C.W. and S.C., minors under the age of 18 years old.
B. On March 13, 2006, the Marion Police Department executed a search on the Dicus residence [in] Marion, IA. At the time of the search both Tami and David Dicus resided at the residence. Defendant's residence [in] Marion, IA, is located within 1,000 feet of Hannah Park, a playground. During this search the Marion Police Department seized the following:
— $3,170 cash in drug proceeds;
— Four gallon bags of marijuana;
— marijuana cigarettes — miscellaneous drug paraphernalia, including a digital scale;
— ammunition; and
— letters discussing their drug activity.
Defendant and Tami Dicus knowingly and intentionally possessed these items. Defendant and Tami Dicus intended to distribute some or all of the marijuana. The $3,170 constituted proceeds of defendant and Tami Dicus's prior marijuana sales.
* * *
E. Defendant stipulates and agrees that he devised and lead [sic] the marijuana distribution conspiracy. As the leader, defendant made all the arrangements with the suppliers and purchased all the marijuana he and Tami Dicus sold during the conspiracy.
F. Defendant and Tami Dicus distributed marijuana to C.W. over 30 times between 2005 and March 13, 2006. During that period, C.W. purchased a quarter of an ounce of marijuana (7 grams) on twenty or more occasions, an ounce on two occasions, and something less than a quarter of an ounce on other occasions. At the time of the distributions, C.W. was 16 years of age. Additionally, C.W. used marijuana in the Dicus residence with defendant and/or Tami Dicus on four occasions.
* * *
J. Defendant and Tami Dicus distributed marijuana to S.C. around 20 times. During that period, S.C. would typically purchase a "dub" (4 grams) of marijuana each time. At the time of the distributions, S.C. was 16 years of age. Additionally, on at least three occasions, S.C. used marijuana with defendant and Tami Dicus in the Dicus residence. S.C. used marijuana with defendant on one occasion and with Tami Dicus on three occasions.
* * *
L. Defendant stipulates and agrees that he is a convicted felon, having been previously convicted of the following:
— On about July 15, 1998 in the Iowa District Court in and for Linn County, Iowa, case number FECR 23666, defendant was sentenced for the Class D Felony offense of Possession with Intent to Deliver a Controlled Substance and the Class D felony offense of Dominion and Control of a Firearm as a Felon.
— On or about September 29, 1992 in the Iowa District Court in and for Linn County, Iowa, case number CRF 13034, defendant was sentenced for the felony offense of Operating While Intoxicated, Third Offense.
Plea Agreement (docket no. 27-2) (attached to minutes of May 31, 2007, plea hearing).
The plea agreement also included a handwritten addition that, with the exception of an enhancement based on Dicus's role in the offense, there would be "[n]o other enhancements making the adjusted offense level 25 after 3 levels downward for acceptance." Plea Agreement, § 8 (emphasis added). The court finds that this stipulation was part of the consideration for the plea agreement.
On April 18, 2007, a Grand Jury handed down an Indictment (docket no. 5) charging David Dicus with the following offenses: Count 1 charged Dicus with conspiracy to distribute and to possess with intent to distribute marijuana within 1,000 feet of a playground in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860; Count 3 charged Dicus with possession with intent to distribute marijuana within 1,000 feet of a playground after a prior conviction for a felony drug offense in violation of 21 U.S.C. §§ 841(a)(1), 851, and 860; Count 4 charged Dicus with maintaining a place for the purpose of using marijuana within 1,000 feet of a playground in violation of 21 U.S.C. §§ 856(a)(1) and 860; and Count 5 charged Dicus with being an unlawful user of marijuana and a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2).1 The Indictment included forfeiture allegations pertaining to currency, any firearms, and ammunition.
On May 29, 2007, Dicus entered into the plea agreement referenced above, agreeing to plead guilty to Counts 1 and 5, and on May 31, 2007, he entered a guilty plea to those charges before a magistrate judge of this court. In the plea agreement, the parties made the following stipulations with respect to Dicus's advisory Sentencing Guidelines calculation:
8. The parties stipulate and agree that the United States Sentencing Guidelines should be applied as follows:
A. For Count 1 of the Indictment:
Under USSG § 2D1.2(a)(3) the offense level should be calculated by starting with a base offense level of 26 because the offense occurred within 1,000 feet of a protected location and involved persons less than 18 years of age. The parties further stipulate and agree that there are no applicable specific offense characteristics. The Chapter Two offense level for Count 1 is 26.
B. For Count 5 of the Indictment:
Under USSG[] § 2K2.1 the offense level should be calculated by starting with a base offense level of 14, because defendant was a prohibited person at the time he possessed the ammunition. The parties further stipulate and agree that there are no applicable specific offense characteristics. The Chapter Two offense level for Count 5 is Level 14.
C. Role in the Offense
The parties stipulate and agree based upon [D]efendant's leadership role in the offense, [D]efendant should receive a two-level upward adjustment. Defendant's adjusted offense level is 28. Defendant was a supervisor or leader of the conspiracy during the commission of the offenses.
No other enhancements making the adjusted offense level 25 after 3 levels downward for acceptance.
D. Acceptance of Responsibility
The parties stipulate and agree, that as of the date of this agreement, [D]efendant appears to qualify for a twolevel downward adjustment for acceptance of responsibility.... If, at the time of sentencing, the court...
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