U.S. v. Tabor, 4:01CR3125.

• Citation: 365 F.Supp.2d 1052
• Decision Date: 18 April 2005
• Docket Number: No. 4:01CR3125.,4:01CR3125.
• Parties: UNITED STATES of America, Plaintiff, v. David TABOR, Defendant.
• Court: U.S. District Court — District of Nebraska

365 F.Supp.2d 1052

UNITED STATES of America, Plaintiff, v. David TABOR, Defendant.

No. 4:01CR3125.

United States District Court, D. Nebraska.

April 18, 2005.

Rebecca J. Smith, Smith Law Firm, Omaha, NE, for Defense.

Sara E. Fullerton, Assistant United States Attorney, Lincoln, NE, for Plaintiff.

MEMORANDUM AND ORDER

KOPF, District Judge.

"The bottom line is that poor people are the ones that use crack cocaine and mostly minorities."¹

For more than a decade, I have been deeply troubled by, and have written critically about, the crack cocaine Guidelines. See, e.g., United States v. McMurray, 833 F.Supp. 1454 (D.Neb.1993). For example, in McMurray, after examining the history of Congress' adoption of the crack cocaine penalty structure, I lamented, but imposed, the mandatory life sentence called for by application of the crack Guidelines on Stephanie Lomax, who is now known as Hamedah Ali Hasan.² I imposed that sentence on Ms. Hasan, a young, black³, poorly educated, single, pregnant mother of two with no criminal history, for her jury-proven substantial, but non-violent, involvement in a large crack cocaine conspiracy that operated between the West Coast and Omaha, Nebraska. Id. at 1457-59, 1472-73, 1485.

In this case, David Tabor (Tabor), a 40-year-old black man with no criminal history points, stands convicted after a jury found that he was involved in a medium-sized crack conspiracy that operated between Kansas City, Missouri, and Lincoln, Nebraska. The jury found that the conspiracy as it pertained to Tabor involved 50 grams or more of crack cocaine. The presentence report (PSR) found that Tabor was responsible for at least 500 grams but less than 1.5 kilograms of crack. (PSR ¶¶ 27, 35.)

Given my newly minted discretion under Booker⁴, I advised the parties that I intended to decide what weight, if any, to give the crack cocaine Guidelines. I also advised the parties that if I decided not to give weight to those Guidelines, I would decide what other method should be used when imposing a crack cocaine sentence.

I encouraged counsel and the Federal Public Defender⁵ to give me their views before I made my decision. The parties have responded (filings 138 & 139), and their briefs are well-reasoned and helpful. The Defender has also faxed a brief to me which is equally thoughtful and well-written. I thank them all for their efforts.

After carefully considering all the submissions, I now decide that the crack Guidelines, like all other Guidelines, should be given heavy weight after Booker.⁶ Finding no plainly superior reason to do otherwise, I will apply the crack Guidelines and impose a prison sentence within the otherwise applicable Guideline range. Although the Sentencing Commission and many judges (including me) disagree with Congress on this point, the crack cocaine Guidelines represent a reasoned and reasonable policy choice by Congress that should be given substantial deference. When that deference is properly recognized, the crack Guidelines should be implemented without judicial alteration. The reasons for this decision are set forth below.

I. Background

I first review the facts relevant to this defendant. After that, I review the history of the crack cocaine Guidelines.

A. The Defendant and His Crime

Taken from the presentence report (to which there are no pertinent objections) the evidence presented at trial, and the court files, the following facts are the most salient:

* The Crime: Tabor was charged with a conspiracy to distribute and possess with intent to distribute 50 or more grams of crack cocaine.⁷ A jury found him guilty. The jury also found that the conspiracy as it pertained to him involved 50 grams or more of crack. The evidence against Tabor was strong to overwhelming. It essentially showed that Tabor (known as Big Country or Country) was a middle-man in Kansas City who helped supply dealers in Lincoln, Nebraska, with crack cocaine.

* The Guidelines: Using very conservative estimates from the trial, the government believed that the defendant was responsible for between 500 grams and 1.5 kilograms of crack. The government did not believe that any upward or downward role adjustment was warranted. The probation officer conducted an independent investigation and found that the government's drug quantity estimate was correct, although the probation officer selected the high end of the base offense level. (PSR ¶ 35.)⁸ The officer also agreed that Tabor warranted no role enhancement or reduction. (PSR ¶ 37.) Since there were no other aggravating or mitigating factors, Tabor's total offense level was 36. (PSR ¶ 42.) Tabor falls into criminal history category I, although he has had a fair number of police contacts. (PSR ¶¶ 47-55.) These include an arrest for attempted murder and use of a deadly weapon to commit a felony, which was not prosecuted. According to the presentence report, there is also an outstanding warrant for the defendant in Kansas City, Missouri, for failure to appear on a domestic violence charge. (PSR ¶ 54.) Under the Guidelines, Tabor's presumptive prison sentence ranges from 188 months to 235 months. (PSR ¶ 73.) Tabor's Guideline range for supervised release is 5 years. (PSR ¶ 76.)

* Related Defendants: Among other witnesses testifying against the defendant, four men in closely related cases cooperated with the government and testified against Tabor and another party. These men, LaSalle Prewit, Kennan Mallory, Miai Lewis, and Arrmon Daugherty, respectively received prison sentences of 210 months, 188 months, 210 months, and 235 months. Prewitt awaits a Rule 35 sentence reduction. Mallory's sentence was reduced to 36 months after a Rule 35 motion by the government was granted. Lewis' sentence was reduced to 60 months pursuant to a Rule 35 motion filed by the government. Likewise, Daugherty's sentence was reduced to 66 months. Eric Casillas, Tabor's codefendant, also cooperated with the government and testified against Tabor and another defendant in a related case. Casillas was originally sentenced to 87 months in prison, but, after two Rule 35 motions, his sentence was ultimately reduced to 27 months.

* Personal Characteristics and Background: Tabor is 40 years old. (PSR at page 2.) He graduated high school and served honorably in the United States Army. (PSR ¶¶ 66, 68.) After his arrest, Tabor began to work as a scrap metal salesman for a pastor. (PSR ¶ 67.) Before that, he worked for himself as a dirt hauler, but terminated this work because of lack of work and because his truck broke down. (Id.) He provided no other work history. He suffers no physical, mental, or emotional problems and he has not been treated for alcohol or substance abuse. (PSR ¶¶ 63-65.) Tabor has never married, but he has two children by different women. (PSR ¶¶ 61-62.) The custody of these children is with their mothers. (PSR ¶ 62.)

* An Unusual Twist: Tabor filed a motion for new trial asserting that several of the cooperating witnesses perjured themselves when they testified against him at trial. (Filing 89.) An evidentiary hearing was scheduled and 1.5 days were allotted to resolve the question of whether Tabor was unjustly convicted by perjury. (Filing 108.) However, on the day of the evidentiary hearing, Tabor withdrew his motion for new trial. (Filing 129.) In exchange, the government promised not to prosecute him or seek a sentencing enhancement based upon Tabor's assertions and conduct relating to the motion for new trial. (Filing 129.)

B. A Short History of Crack Cocaine Penalties

The first Congressional response to crack cocaine, in which the harsh penalty structure we presently enforce came into being, was contained in the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207 (1986). The legislative history of that Act, and the 100-to-1 ratio for crack cocaine, is fully and fairly developed and summarized by the Sentencing Commission in one of its reports. See United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy (February 1995) (hereinafter "1995 Report"), available at http://www.ussc.gov/crack/exec.htm.

To get right to the point of this discussion, the Congressional response to crack cocaine was intentional (not accidental) and it was reasoned:

The decision by Congress to differentiate crack cocaine from powder cocaine in the penalty structure was deliberate, not inadvertent.

. . . . .

Congress's conclusions about the dangerousness of crack cocaine relative to powder cocaine flowed from specific assumptions. First, crack cocaine was viewed as extraordinarily addictive. This addictive nature was stressed not only in comparison to powder cocaine (i.e., crack cocaine is "the more addictive ... substance") [132 Cong. Rec. S8092 (June 6, 1986) (statement of Sen. D'Amato regarding S. 2580). See also 132 Cong. Rec. S14,293 (Sept. 30, 1986) (statement of Sen. Bumpers).] but also in absolute terms. Second, the correlation between crack cocaine use and the commission of other serious crimes was considered greater than that with other drugs. Floor statements focused on psychopharmacologically driven, economically compulsive, as well as systemic crime (although members did not typically use these terms). Third, the physiological effects of crack cocaine were considered especially perilous, leading to psychosis and death. [132 Cong. Rec. 26,447 (Sept. 26, 1986) (statement of Sen. Chiles).] Fourth, members of Congress felt that young people were particularly prone to using crack cocaine. This was mentioned in debate as one of crack cocaine's most troubling features. Finally, there was a great concern that crack's "purity and potency," the cost per dose, the ease with which it is manufactured, transported, disposed of, and administered, were all leading to widespread use of crack.

1995 Report at 117-18.

Consequently, Congress established what has become known as the 100-to-1 ratio as between powder and crack cocaine....