U.S. v. Whigham

• Decision Date: 03 December 2010
• Docket Number: Criminal No. 06cr10328–NG.
• Citation: 754 F.Supp.2d 239
• Parties: UNITED STATES of America,v.Kenneth WHIGHAM, Defendant.
• Court: U.S. District Court — District of Massachusetts

754 F.Supp.2d 239

UNITED STATES of America,

v.Kenneth WHIGHAM, Defendant.

Criminal No. 06cr10328–NG.

United States District Court, D. Massachusetts.

Dec. 3, 2010.

John A. Wortmann, Jr., United States Attorney's Office, Boston, MA, for Plaintiff.

SECOND AMENDED¹ SENTENCING MEMORANDUM

NANCY GERTNER, District Judge.

This case arose out of a joint federal-state arrest of twenty-three individuals who distributed crack cocaine in the Bromley Heath housing project in Boston, Massachusetts. While there is no question that crack cocaine has been the scourge of this neighborhood, like many others in Boston, my focus here must be on the sentence of one man, Kenneth Whigham (“Whigham”).

Whigham was charged with participating in drug deals on three dates, March 31, 2006, May 11, 2006, and May 12, 2006, distributing a total of 4.75 grams of crack cocaine. In addition, the government claims that Whigham participated in other drug deals which, though uncharged, comprise relevant conduct under the United States Sentencing Guidelines. All told the amount attributed to Whigham's dealing was 10.25 grams. But whatever the totals, no one doubts that Whigham was, at best, a street dealer, as were virtually all of the individuals caught up in the sweep. He is also 46, with substantial mental deficits, living with his mother all of his life, with no visible means of support.

Four individuals were sentenced before me: Kenneth Whigham, Gerrod Brown, Louis Ortiz and Myles Haynes, each indicted not just for distributing the drug, but for doing so within 1,000 feet of a public housing project. See generally United States v. Haynes, 557 F.Supp.2d 200 (D.Mass.2008). Apart from these three individuals, there were fifteen other cases before other judges of the District of Massachusetts. See infra Table 1. Still others—presumably minors—were charged in state court. To be sure, it is difficult to put cases arising out of a single sweep in context when they are brought before different judges. The government suggests these difficulties are the unavoidable product of entirely legitimate charging decisions. There was, the government claims, no overarching conspiracy here to justify bringing all cases before a single judge. Just so. Each is a street dealer; each is effectively at the bottom of the “crack cocaine” distribution chain.

As in many of these cases, the Sentencing Guidelines called for an extraordinarily severe sentence, 188–235 months. The range is driven by certain widely criticized guidelines—the fact that Whigham qualifies as a career offender under U.S.S.G. § 4B1.1, the extent to which the Guidelines emphasize quantity over most other factors, the extraordinary severity of the crack guidelines, as compared with the powder cocaine guidelines, and the extent to which the Guidelines in effect at the time of Whigham's sentencing fail to give sufficient attention to mitigating factors like the defendant's role in the offense or the defendant's profound mental deficiencies. (Recent changes in the Sentencing Guidelines have ameliorated some of these problems, particularly with respect to the crack cocaine guidelines. Whigham, however, was sentenced before any of the changes took effect.) ²

Significantly, neither side recommended a Guideline sentence. The government recommended 114 months; the defendant recommended time served (which amounted to nearly four years). I sentenced Whigham to sixty months and six years of supervised release, with detailed conditions to address his complex problems.

I first describe Whigham's background. In order to perform my responsibilities post United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), under a now advisory Guidelines regime, I have to understand all the facts about the defendant's life and the circumstances of this offense, not simply the facts made relevant by the Guidelines. I then address the Guideline sentence and why it is inappropriate here.

Once I determine that a Guideline sentence does not apply, I must then decide what sentence is appropriate to meet the statutory sentencing purposes of 18 U.S.C. § 3553(a) as Booker directs. See 543 U.S. at 224, 125 S.Ct. 738. In this regard, I will use the approach which I used in other drug sweep cases, described in United States v. Garrison, 560 F.Supp.2d 83 (D.Mass.2008). In Garrison, I evaluated and compared the sentences imposed on men picked up in the same sweep, the same geographical area, with the same charges—including sentences imposed by other judges—to the case of the defendant before me. In effect, Garrison makes the sentences of individuals imposed by other judicial officers function as precedent for my sentence, part of a common law of sentencing.³

The government criticizes the Garrison approach, arguing that it will somehow exacerbate disparity in this jurisdiction and cites to a recent article by Professor Ryan Scott (“Scott”), Inter–Judge Sentencing Disparity After Booker: A First Look (Ind. Legal Studies Research, Paper No. 140, 2010) (hereinafter Inter–Judge Sentencing Disparity After Booker ), which reflected concerns about Massachusetts federal sentencing. As I describe below, Scott's article defines disparity in terms of the extent to which District of Massachusetts judges are following the Sentencing Guidelines. Following the Guidelines, it suggests, promotes the kind of sentencing consistency that the Sentencing Reform Act aimed for.

I disagree with the premise, as I describe below. Similarly situated with respect to the Guideline categories does not necessarily mean similarly situated with respect to the defendant's actual role in the criminal endeavor or his real culpability. Guideline categories (like career offender guidelines) are frequently over broad, giving the same “score” to individuals who are not remotely similar and ignoring critical differences between them (their role in the offense, their mens rea) that should bear on punishment. In any event, in this case, the government's position touting the Scott article was ironic. It agreed that the Guideline sentence is far too high for Whigham.

To the extent that Scott's findings suggest differences in the approach to the Guidelines among the judges in Massachusetts, they should be carefully evaluated, which I do below. The critical question is what these disparities reflect—whether they reflect the untutored preferences of particular judges, as often occurred pre-Guidelines, or real jurisprudential differences involving Guidelines that are problematic. In my judgment, they reflect the latter; the good faith, reasoned evaluations of Guidelines and facts. Even before Booker, the Guidelines contemplated that district court judges would depart from the Guidelines on occasion, that the Commission would consider these departures and amend the Guidelines, if appropriate, allowing for a collaborative evolution of Guideline law.⁴ After Booker, more of the work of that evolution is to be done by the appeals courts than the Commission—determining which approaches are “reasonable” and which are not.

In the short term, until there is precedent in the areas in which there are real issues, like the career offender and crack cocaine Guidelines, differences in approach across cases are unavoidable. That is all the more reason for using the Garrison approach, at the very least, looking carefully at the sentences given to individuals in a given sweep, in the same geographic area, in roughly the same time period, having the same role in the offense.

Let me be clear—in answer both to Professor Scott and the critics of advisory Guidelines: When I choose not to follow the Guidelines, it is not because I simply disagree with them and seek to substitute my own philosophy of sentencing. It is because the Guideline at issue is wholly inconsistent to the purposes of sentencing under 18 U.S.C. § 3553(a). And when I assign a non-Guidelines sentence, I am likewise not picking a number out of the air, but keying what I do, to the extent possible, with the sentences and reasoning of other judges, and the evidence that I have been given. Finally, I write decisions so that my reasoning is clear and may usefully serve as precedent to others.

I. FACTSA. Offense Conduct

Whigham, Gerrod Brown, and Myles Haynes were charged with distributing crack cocaine within 1000 feet of a public housing project (21 U.S.C. § 841(a)(1); 21 U.S.C. § 860), and aiding and abetting (18 U.S.C. § 2).

The defendants dealt crack in the Bromley–Heath Housing Development in Jamaica Plain, which was a target of a joint state/federal investigation known as “Operation Brick House.” Some of the drug dealing may have been associated with the activities of the “Heath Street Gang.” However, there was absolutely no indication—no charge, no evidence—that Whigham was a gang member.

The sting worked as follows: The government sent cooperating witnesses to make cocaine purchases, and audio and video recorded the conversations the witnesses had with drug dealers. In each of the purchases at issue, a witness walked up to Whigham and asked for crack cocaine. Whigham then spoke to and received drugs from a supplier—Brown on March 31, 2006, Haynes on May 11, 2006, and an unknown supplier on May 12, 2006—and passed the drugs on to the witness. Whigham, in effect, was the middleman. He sold .85 grams of crack on March 31, 2006, 1.8 grams of crack on May 11, 2006, and 2.1 grams of crack on May 12, 2006, for a total of 4.75 grams. The witness conducted four other uncharged deals with Whigham, on March 30, 2006, April 10, 2006, April 11, 2006, and June 5, 2006, for a total of approximately 5.5 grams of crack in addition to the 4.75.

B. Defendant's Background

The defendant is 46 years old and has lived with his mother in the Bromley–Heath Housing Project for his entire life. Although he experienced no abuse at home, he was exposed to violence and drugs at a young age. In 1977, Whigham saw a friend get...