U.S. v. Perry

• Decision Date: 16 September 2005
• Docket Number: C.R. No. 04-089S.
• Citation: 389 F.Supp.2d 278
• Parties: UNITED STATES of America, Plaintiff, v. Joshua PERRY, Defendant.
• Court: U.S. District Court — District of Rhode Island

389 F.Supp.2d 278

UNITED STATES of America, Plaintiff, v. Joshua PERRY, Defendant.

C.R. No. 04-089S.

United States District Court, D. Rhode Island.

September 16, 2005.

COPYRIGHT MATERIAL OMITTED

Kevin J. Fitzgerald, Federal Defender's Office, Providence, RI, for Plaintiff.

Stephen G. Dambruch, U.S. Attorney's Office, Providence, RI, for Defendant.

Sentencing Memorandum

SMITH, District Judge.

I. Introduction

Before the Court for sentencing is Joshua Perry ("Defendant" or "Perry"), who was convicted in January of 2005 of possession with intent to distribute more than 5 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and b(1)(B), as well as doing so within 1000 feet of a school in violation of 21 U.S.C. § 860. Title 21 U.S.C. § 841(a) prohibits, among other things, possession with the intent to distribute a controlled substance. The statute provides for different mandatory minimum sentences depending on whether the substance is "cocaine" (including "its salts") or "cocaine base."¹ Under this statutory scheme, 5 grams of cocaine base carries the same mandatory minimum sentence as 500 grams of cocaine: 5 years. This 100:1 ratio results in punishments that are three to six times longer for cocaine base than for an equivalent quantity of powder cocaine. This discrepancy is at the core of all of the issues involved in this sentencing.

The first issue raised by the Defendant concerns whether the statutory definition of "cocaine base" in § 841 should be interpreted to mean exclusively "crack" cocaine, which is a type of cocaine base, or whether it should include all types of cocaine base. If cocaine base is understood to mean exclusively crack, then, in order for the Government to seek the stiffer penalty under the statute, it must prove that a defendant possessed crack (as opposed to some other form of cocaine base) to a jury, and its proof must convince the jury beyond a reasonable doubt. The Defendant argues that cocaine base means exclusively crack under the statute; and because the jury did not specifically make such a finding in this case, he should be sentenced under the provisions of the statute and the United States Sentencing Commission Guidelines Manual ("Sentencing Guidelines" or "Guidelines") that apply to powder cocaine. For the reasons set forth below, this Court declines to adopt Defendant's interpretation of the statute.

Since 1993 the Guidelines have provided that cocaine base means exclusively crack; therefore, the sentencing judge (not a jury) must determine whether the Government has proven that the cocaine base in question was indeed crack. The Defendant's second argument is that this proof must be beyond a reasonable doubt, and the Government failed to meet this burden; in the alternative, the Defendant claims that even if the court finds a lower standard of proof applies, the proof presented by the Government did not establish the cocaine base to be crack by a preponderance of the evidence. Again, as will be explained in more detail below, the Court finds neither of the Defendant's arguments persuasive.

In addition to these challenges, the Defendant objects to the inclusion of $1100 as drug proceeds in the calculation of the advisory guideline range and makes several double jeopardy arguments. Most of these objections are unavailing to the Defendant. One of the Defendant's arguments, however, does require the technical dismissal of Count I, because Count I is a lesser included offense of Count II.

After determining that the Government met its burden on the crack issue, two more questions follow: how much weight to give the sentencing range established by the Sentencing Guidelines, which are no longer mandatory in the wake of the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ("Booker/Fanfan"), and whether to impose a sentence consistent with or varying from the advisory Guideline range. The Defendant urges this Court to vary from the Sentencing Guidelines and impose only the statutory minimum sentence. Resolution of this issue requires this Court to delve into the thicket of the debate over the sentencing discrepancies between crack and powder cocaine — a debate that has simmered for many years but has been refueled recently by the Booker/Fanfan decision. For the reasons set forth in the second half of this memorandum, this Court finds that the crack/powder disparity cannot stand up to the scrutiny of analysis under 18 U.S.C. § 3553. Therefore, this Court will vary from the advisory sentencing range established by the Sentencing Guidelines and impose the statutory minimum sentence of 10 years.

II. Facts and Procedural History

Pawtucket Police Detective Dennis Lefevbre arrested the Defendant on Rte. 95 North, in the city of Pawtucket, Rhode Island, on August 3, 2004, for driving an unregistered motor vehicle. Prior to the arrest, Lefevbre had obtained a search warrant to search the Defendant's premises located at 52 Lyon Street, Pawtucket. Officers seized marijuana, plastic bags containing suspected crack cocaine, a digital scale, packaging materials and $1100 in United States currency (believed to be drug proceeds) from the Defendant's bedroom. Police later determined that the Defendant's bedroom was located within 1000 feet of St. Raphael's Academy, a private secondary school in Pawtucket. Perry filed a Motion to Suppress Evidence which was denied by the Court, and the case proceeded to trial in January, 2005.

On January 12, 2005, after a week-long trial, a jury found the Defendant guilty of possession with intent to distribute more than 5 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and b(1)(B) (Count I) and within one thousand feet of a school in violation of 21 U.S.C. § 860 (Count II).²

The trial was conducted in the wake of the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and just prior to the Supreme Court's decision in Booker/Fanfan, a time when all trial courts were improvising in order to deal with the holding of Blakely. Pursuant to the procedure adopted by this Court after Blakely, the case was to be submitted to the jury in two parts. First, at the completion of trial, the jury was asked to determine whether the Defendant was guilty of the two counts charged in the indictment. If the Defendant was found guilty, then this Court was prepared to submit a number of specific questions to the jury designed to elicit its findings, beyond a reasonable doubt, as to a number of anticipated sentencing factors. These special interrogatories were prepared after extensive pretrial consultation with counsel. Further, the Court was prepared to allow additional testimony, if necessary, and separate jury instructions had been prepared.)³ In the event of a finding of guilt on either of the two counts, one of the specific questions for the jury was whether the cocaine base possessed by the Defendant was cocaine base in the form of crack cocaine. See U.S. Sentencing Guidelines Manual § 2D1.1(c) (2004).

While the jury was deliberating, and just shortly before it reached a verdict, the Supreme Court issued the Booker/Fanfan decision. After the jury reached its verdict of guilty, the Court consulted with counsel and then decided to recess overnight, to give both counsel and the Court time to review the Booker/Fanfan opinion and consider whether the special interrogatories concerning the sentence enhancement factors should be submitted to the jury. The following day, January 13, the Court met with counsel in chambers. Both counsel agreed with the Court that Booker/Fanfan precluded submission of special interrogatories to the jury, and the jury was discharged. Therefore, the jury never answered the specific question of whether the cocaine base was crack.

In the usual course, the United States Office of Probation ("Probation") prepared a Presentence Report ("PSR"). The PSR sets forth a combined offense level of 34 and a criminal history category of III, yielding a Guideline range of 188 to 235 months. As a result of the Information Charging Prior Offenses, pursuant to 21 U.S.C. § 851, the Defendant was subject to an enhanced statutory penalty due to a prior felony drug conviction. Under this statute, the Defendant is potentially subject to a 10-year statutory minimum term of incarceration with a maximum term of life imprisonment as to both counts of the indictment. Thus, according to the PSR, the lowest possible sentence is the mandatory minimum of 10 years, while the maximum statutory penalty is life imprisonment. The (now advisory) Guideline range calls for a sentence between 188 and 235 months.

III. Defendant's Objections

The Defendant filed two objections to the PSR, and raises several other arguments in his Supplemental Brief. First, the Defendant objects to the designation of the drugs as crack, contending that this question was never posed to the jury and has not been found beyond a reasonable doubt. Alternatively, assuming that a lower standard of proof, preponderance of the evidence, applies here, the Defendant contends that the evidence is nevertheless insufficient. Second, the Defendant objects to the inclusion of the $1100 found in the Defendant's residence as drug proceeds and conversion of the same into cocaine base for purposes of determining the base offense level. Finally, in his most recent filing, the Defendant makes several arguments under the Double Jeopardy Clause of the Fifth Amendment. This Court will deal with the latter two objections first, and then move on to the more extensive discussion required by the first.

A. The Drug Proceeds Objection

The Defendant's second objection can be dealt with in short order. The evidence at trial clearly proved by a preponderance of the evidence that the bedroom in which the $1100 was found was indeed Perry's bedroom, not that of a mysterious roommate, as Perry...