United States v. Dossie, 11-CR-237 (JG)

• Decision Date: 30 March 2012
• Docket Number: 11-CR-237 (JG)
• Parties: UNITED STATES OF AMERICA v. JAMEL DOSSIE, Defendant.
• Court: U.S. District Court — Eastern District of New York

UNITED STATES OF AMERICA v. JAMEL DOSSIE, Defendant.

11-CR-237 (JG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: March 30, 2012

FOR PUBLICATION

STATEMENT OF REASONS

JOHN GLEESON, United States District Judge:

This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie "lose their claim to a future" - to borrow a phrase from Attorney General Eric H. Holder, Jr. - because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.

There is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it. He can do so by

• citing to the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role that warrants a four-level upward adjustment under U.S.S.G. § 3B1.1(a);

• citing to the five-year mandatory minimum only when the government intends to prove a managerial role worthy of a three- or two-level upward adjustment under § 3B1.1(b) or (c); and• withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.

I respectfully urge the Attorney General to implement such a policy. It is a modest request. It asks only that the Department of Justice ("DOJ") refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted. By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair. The reform would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one. Finally, it would be consistent with the Attorney General's public statements about how our criminal justice system ought to treat defendants like Dossie.

A. The Mandatory Minimum Sentences in Drug Cases¹

1. Why They Were Enacted

Already engaged in a fervent war on drugs, Congress was galvanized by the tragic death by overdose of University of Maryland basketball star Len Bias on June 19, 1986, and it promptly enacted the Anti-Drug Abuse Act of 1986 ("ADAA"). The ADAA created mandatory minimum sentences and enhanced maximum sentences that have now become central features of our federal sentencing landscape. Despite the speed with which the ADAA was enacted, there is ample evidence from related congressional reports of the purpose of the new enhanced minimum and maximum penalties. The ADAA's five-year minimum sentence, with a maximum enlarged from 20 to 40 years (the "5-to-40 sentence enhancement" or the "five-year mandatoryminimum"), was specifically intended for the managers of drug enterprises, while the Act's ten-year minimum sentence with life as the maximum (the "ten-to-life sentence enhancement" or the "ten-year mandatory minimum") was intended for the organizers and leaders. The Sentencing Commission's recent report to the Congress on Mandatory Minimum Penalties in the Federal Criminal Justice System provided the following useful summary of that evidence:

Floor statements delivered by members in support of the [ADAA] and a committee report on a predecessor bill suggest that Congress intended to create a two-tiered penalty structure for discrete categories of drug traffickers. Specifically, Congress intended to link the five-year mandatory minimum penalties to what some called "serious" traffickers and the ten-year mandatory minimum penalties to "major" traffickers. Drug quantity would serve as a proxy for identifying the type of trafficker.

Senator Robert Byrd, then the Senate Minority Leader, summarized the intent behind the legislation:

For the kingpins - the masterminds who are really running these operations - and they can be identified by the amount of drugs with which they are involved - we require a jail term upon conviction. If it is their first conviction, the minimum term is 10 years. . . . Our proposal would also provide mandatory minimum penalties for the middle-level dealers as well. Those criminals would also have to serve time in jail. The minimum sentences would be slightly less than those for the kingpins, but they nevertheless would have to go to jail - a minimum of 5 years for the first offense.

A report issued by the House Judiciary Subcommittee on Crime following its consideration of a predecessor bill also provides evidence of Congress's intent to establish two tiered mandatory minimum penalties for serious and major traffickers. The Subcommittee determined that the five and ten-year mandatory minimum sentencing structure would encourage the Department of Justice to direct its "most intense focus" on "major traffickers" and "serious traffickers." "One of the major goals of this bill is to give greater direction to the DEA and the U.S. Attorneys on how to focus scarce law enforcement resources."

U.S. Sent'g Comm'n, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 24 (2011) [hereinafter Mandatory Minimum Report] (second alteration in original) (quoting 132 Cong. Rec. 27,193-94 (Sept. 30, 1986); H.R. Rep. No. 99-845, pt. 1, at 11-12 (1986)) (internal footnotes omitted).

2. The Mistake: Using Drug Quantity as a Proxy for Role

Most people would agree that the people who lead or manage drug-trafficking businesses deserve severe punishment. But right from the start Congress made a mistake, which is apparent in the statement of Senator Byrd quoted above: The severe sentences it mandated to punish specified roles in drug-trafficking offenses were triggered not by role but by drug type and quantity instead. If it wanted the statute to serve its explicitly stated purpose, Congress should have said that an offense gets the 5-to-40 sentence enhancement when the defendant is proved to be a manager of a drug business. Instead, the 5-to-40 sentence enhancement is triggered by offenses involving 28 grams of crack, 100 grams of heroin, or 500 grams of cocaine. 21 U.S.C. § 841(b)(1)(B). And instead of hinging the ten-to-life sentence enhancement on the government's proof of "kingpin" or leadership status, Congress simply used larger drug quantities: 280 grams of crack,² 1,000 grams of heroin, or 5,000 grams of cocaine. 21 U.S.C. § 841(b)(1)(A). So if an offense happens to involve a drug type and quantity that triggers an enhancement, every defendant involved in that crime, whatever his or her actual role, can be treated as a leader or manager at the option of the United States Attorney.³

Drug quantity is a poor proxy for culpability generally and for a defendant's role in a drug business in particular. Senator Byrd's statement that the leaders and managers of drug operations "can be identified by the amount of drugs with which they are involved" wasincorrect. Compare Defendant A, who organizes a dozen teenagers into a business to distribute cocaine in a New York City housing project and adjacent high school, with Defendant B, an addict who is paid $300 to stand at the entrance to a pier and watch for the police while a boatload of cocaine is offloaded. Defendant A is more culpable, and he is the sort of defendant Congress had in mind when it enacted the ten-to-life sentence enhancement, but he will not face even the 5-to-40 sentence enhancement if the conspiracy is nipped in the bud, before it deals more than half a kilogram of cocaine. Defendant B, on the other hand, qualifies for kingpin treatment and a ten-year mandatory minimum if the prosecutor so chooses, based solely on the amount of cocaine on the boat.

Congress's mistake of equating drug quantity with a defendant's role in the offense need not continue to have the devastating consequences on display in this case. If DOJ invokes the harsh sentence enhancements only in cases in which the defendants have supervisory roles - always fewer than 10% of federal drug cases - such unintended and unjust results can be avoided in the future. However, as discussed below, in deploying the mandatory minimum penalties, DOJ has disregarded their purpose. It has turned a law that sought to impose enhanced penalties on a select few into a sentencing regime that imposes them on a great many, producing unfairly harsh consequences that Congress did not intend.

3. How DOJ Uses the Mandatory Minimum Provisions

DOJ uses mandatory minimum sentences without regard to their purpose. In fiscal year ("FY") 2011, over 74% of crack defendants faced a mandatory minimum, see U.S. Sent'g Comm'n, 2011 Sourcebook of Federal Sentencing Statistics tbl.44 (2011) [hereinafter 2011 Sourcebook], yet only 5.4% of them occupied an aggravating role of leader or manager of a drugbusiness, see id. tbl.40.⁴ Thus, the overwhelming majority of crack defendants who feel the pain of mandatory prison terms are not the criminals Congress had in mind in creating those penalties. The "safety valve" provision that was supposed to save minor defendants from the two-by-four that a mandatory minimum becomes on sentencing day has too many conditions to be effective. Even though more than 94% of crack defendants have no leadership or managerial role,...