U.S. v. Ennis

• Decision Date: 22 December 2006
• Docket Number: Crim. No. 03cr10298-NG.
• Citation: 468 F.Supp.2d 228
• Parties: UNITED STATES of America, v. Edward ENNIS, Stephen Nicholson, and James Sardina, Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 228

468 F.Supp.2d 228

UNITED STATES of America, v. Edward ENNIS, Stephen Nicholson, and James Sardina, Defendant.

Crim. No. 03cr10298-NG.

United States District Court, D. Massachusetts.

December 22, 2006.

J. Thomas Babcock, Quincy, MA, John M. Brinkman, Jack M. Atwood, P.C., William A. Brown, Boston, MA, Christie M. Charles, George F. Gormley, Geroge F. Gormly, P.C, South Boston, MA, Melvin Norris, Wayland, MA, Robert L. Jubinville Milton, MA, Michael J. Liston, Boston, MA, Scott P. Lopez, Law Office of Scott P. Lopez, Boston, MA, for defendants.

William D. Weinreb, United States Attorney's Office, Boston, MA, for United States of America.

AMENDED SENTENCING MEMORANDUM

GERTNER, District Judge.

Seven defendants were indicted on various drug conspiracy and distribution charges.¹ Their prosecution followed an elaborate two year federal investigation into drug trafficking on the South Shore of Massachusetts. Some of the defendants were in their sixties, and one even in his seventies, with long criminal records. All but one was sentenced to lengthy terms of ten, fifteen, and even twenty years, far, far higher than comparable sentences of only two decades ago.

But however lengthy the term of imprisonment imposed, in some of these cases the sentence was less than the astonishing range suggested by the Federal Sentencing Guidelines. This memorandum will address why in the sentencing of three defendants — Edward Ennis, Stephen Nicholson and James Sardina. Specifically, it will deal with the treatment of defendants who qualify as "career offenders" under the United States Sentencing Guidelines ("Guidelines") after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Many courts, while announcing that the Guidelines are advisory, are in fact following them nearly as rigorously as they had before Booker. Under the circumstances, it is especially important to spell out the legal limitations of the career offender guidelines in general, and in their application to these cases, in particular. Let me be clear: If I choose not to follow the career offender guidelines in the case of these defendants, it is not because I simply disagree with them and choose to substitute my own idiosyncratic philosophy of sentencing. It is because the career offender guidelines as applied to the cases at bar are wholly inconsistent with the purposes of sentencing in 18 U.S.C. § 3553(a).

I will first describe the case in terms of the formalities of the indictment and the Guideline computations. But a far more meaningful description focuses on defendants' respective roles in the conspiracy as those roles became apparent in these sentencing proceedings. Who was the supplier of the drugs and thus the most culpable? Who was next in the hierarchy? Who was at the bottom? Unfortunately, these questions are too often ignored in Guideline calculations.

Sentencing, even after the Supreme Court's decision in Booker, remains driven not by a defendant's actual role in a crime, but rather by two factors: 1) the quantities of drugs for which the government seeks to hold each defendant responsible and whether those quantities trigger a mandatory minimum sentence; and, 2) whether a defendant qualifies as a career offender under U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 (2003) ("U.S.S.G.").

Drug quantity may or may not be consistent with a defendant's actual role in the offense, and thus, with a defendant's culpability. See, e.g., Paul J. Hofer & Mark H. Allenbaugh, The Reason Behind the Rules: Finding and Using The Philosophy of the Federal Sentencing Guidelines, 40 Am. Crim. Law Rev. 19, 70-72 (2003). In some cases, the quantity of drugs the government would attribute to a defendant under U.S.S.G. § 2D1.1 is entirely fortuitous. It correlates only with the happenstance of the timing of the government's surveillance, the drug transactions involving particular drug quantities they happened to see or hear. At the same time, other indicia of role — namely, the luxurious lifestyle of the defendant or its opposite, whether he or she has any lawful means of support, apart from drug dealing — are devalued. Thus, it is not at all unusual to find that a messenger who earns a only a small percentage of the profits from a given drug transaction starts at the same offense level as the dealer who stood to gain millions of dollars.² And since the Guideline drafters did not bother to describe the reason for making quantity talismanic, the sentencing purposes advanced by the quantity guideline, § 2D1.1, or what to do when quantity-driven sentences are wholly at odds with any rational sentencing scheme; judges were left "just to weigh the drugs and mechanically compute the offense level." Hofer & Allenbaugh, supra at 72. Happily, the Supreme Court's decision in Booker mandates a different approach: Judges may not simply assume that § 2D1.1 advances the purposes of sentencing spelled out in 18 U.S.C. § 3553(a). Whether it does do so or not depends upon the circumstances of the individual case. Moreover, the failure to consider those circumstances is not simply unfair; it may well be unconstitutional.

The second factor on which the sentences in this case are based, namely, the career offender guidelines, raises similar problems: If a defendant qualifies as a career offender (which, under § 4B1.1 means, inter alia, "two prior felony convictions of either a crime of violence or a controlled substance offense," broadly defined) and if the defendant is also guilty of distributing a quantity of drugs sufficient to trigger a mandatory minimum sentence, the combination of the two increases his sentence astronomically, often far beyond what his role in the offense or even his record alone may justify. In fact, it is not at all uncommon to find, as in the instant case, that the supplier of drugs has a minimal criminal record, and thus, avoids career offender status, precisely because of his distance from street activities, while the street dealer winds up with a substantial one.

I. INTRODUCTION

Sabarian Taba ("Taba"), Frederick Joseph Martineau ("Martineau"), Stephen Nicholson ("Nicholson"), James Sardina ("Sardina"), Edward Ennis ("Ennis"), John Soares ("Soares"), and Michael Malouf ("Malour) were indicted for conspiracy to distribute a quantity of cocaine, in violation of 21 U.S.C. § 846 and for the substantive distribution of cocaine and marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii).³ A superceding indictment was brought against Taba, Nicholson, Sardinha, Ennis and Soares, specifying the specific drug quantities which the government sought to attribute to them. It was also accompanied by notice as to enhanced penalties under 21 U.S.C. § 841(b) (for the prior convictions of Taba, Martineau and Nicholson).⁴

A snapshot of the roles of the respective participants is as follows:

1. Taba supplied cocaine and marijuana to Martineau.

2. Martineau supplied Nicholson.

3. Nicholson supplied Sardina and Malouf.

4. Sardinha and Malouf sold to their respective customers.

5. Ennis assisted Martineau; while his role was not fully developed on this record, it appeared to be something like a "gofer."

6. Soares"was a customer.

Everyone, except Taba, pled guilty to Count One, which alleged participation in a conspiracy involving 5 kilograms of cocaine or more. Taba agreed to a jury-waived trial on all issues.⁵ I subsequently found him guilty as charged.

If. I had strictly followed the Guidelines, as the government would have me do, the sentences of some of these defendants would not have remotely reflected their roles in the conspiracy, and thus, their culpability. While in some cases the Guideline sentence was entirely reasonable and consistent with the 18 U.S.C. § 3553(a), in other cases, it was not at all.

Taba: Taba, age 54, appropriately received the most severe sentence, 240 months. He was held responsible both personally and as a member of a conspiracy for 5 kilograms or more of cocaine, a quantity which triggered a mandatory minimum sentence of ten years to life, under the first tier of the statute, 21 U.S.C. § 841(b)(1)(A).⁶ With an enhancement for a prior conviction for drugs, the mandatory minimum rose to 20 years to life. Since Taba's record was relatively minimal (Criminal History II), the quantity wholly attributable to him drove the sentence. He received a 240 month sentence with ten years of supervised release.

Martineau: Martineau, age 79 at the time of sentencing, pled guilty to a conspiracy involving 5 kilograms or more of cocaine under the first tier of the statute, § 841(b)(1)(A). However, he was held personally responsible for between 2,000 and 3,000 grams of cocaine, which placed him in the second tier under § 841(b)(1)(B) (more than 500 grams but less that 5 kilograms). (The mandatory minimum sentence is triggered by the amount for which he was personally responsible, not the conspiracy amount. United States v. Colon-Solis, 354 F.3d 101 (1st Cir.2004).) With an additional enhancement for a prior felony conviction, his sentencing range was a mandatory minimum of ten years to life.

Like Taba, Martineau's criminal history score was relatively low, at a level II. This was the case, notwithstanding the fact that he had a murder conviction for which he had received the death penalty, later reduced to a sentence of life imprisonment from which he was paroled. Significantly, the criminal history guidelines, in their "scoring" of a defendant's record, do not distinguish between crimes of violence and other offenses.⁷

The Guideline sentence, again driven by quantity, would have been at a level 28, or 25 with "acceptance of responsibility," for a range of 63-78 months. The mandatory minimum, however, trumped all Guidelines calculations. Accordingly, I sentenced Martineau to 120 months in prison and 8 years' supervised release.

Nicholson: Like Taba and Martineau, Nicholson (age 65) pled guilty to a conspiracy...