United States v. Young

• Decision Date: 16 August 2013
• Docket Number: No. CR 12–4107–MWB.,CR 12–4107–MWB.
• Citation: 960 F.Supp.2d 881
• Parties: UNITED STATES of America, Plaintiff, v. Douglas YOUNG, Defendant.
• Court: U.S. District Court — Northern District of Iowa

960 F.Supp.2d 881

UNITED STATES of America, Plaintiff,
v.
Douglas YOUNG, Defendant.

No. CR 12–4107–MWB.

United States District Court,
N.D. Iowa,
Western Division.

Aug. 16, 2013.

Shawn Stephen Wehde, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

Robert A. Wichser, Federal Public Defender, Sioux City, IA, for Defendant.

SENTENCING OPINION AND STATEMENT OF REASONS PURSUANT TO 18 U.S.C. § 3553(c) DISCUSSING THE DRAMATIC NATIONAL DISPARITY IN THE DEPARTMENT OF JUSTICE'S APPLICATION OF 21 U.S.C. § 851 ENHANCEMENTS
MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I.	INTRODUCTION—DEFENDANT DOUGLAS YOUNG	883
II.	THE OVERVIEW	885

A.	How The § 851 Enhancement Works	885
B.	A Brief History Of Recidivist Enhancements And § 851	886
C.	Lack Of A National DOJ § 851 Policy	887
D.	The Wheel of Misfortune	889
E.	Other Problems With The Arbitrary Workings Of § 851; Enhancements	891

III.
ANALYSIS OF THE COMMISSION'S § 851 DATA
892

A.	Overview Of The Underlying Data On § 851 Enhancements	892
B.	Northern District Of Iowa— § 851 Application Disparity	894
C.	The Eighth Circuit— § 851 Application Disparity	895
D.	Intra-circuit— § 851 Application Disparity	899
E.	Intra-state And National— § 851 Application Disparity	901
F.	Summary	902

IV.	THE ROLE OF THE JUDICIARY IN ATTEMPTING TO CORRECT THE PROBLEM	903
V.	THE DOJ, THE AUDACITY OF HYPOCRISY, AND THE; OPPORTUNITY FOR ATONEMENT	905
VI.	CONCLUSION	908
VII.	APPENDICES	909

A.	Appendix A	909
B.	Appendix B	914
C.	Appendix C	917
D.	Appendix D	922
E.	Appendix E	926
F.	Appendix F	930

[960 F.Supp.2d 882]

This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of § 851 drug sentencing enhancements.¹ These enhancements, at a minimum, double a drug defendant's mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life.² They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is.

Recent statistics obtained from the U.S. Sentencing Commission (Commission)—the only known data that exists on the eligibility and applications of the DOJ's § 851 decision making—reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska.

[960 F.Supp.2d 883]

Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts. These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency. See In re Oliver, 333 U.S. 257, 266–271, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (“The traditional Anglo–American distrust for secret trials has been variously ascribed to the notorious use of this practice by ... the English Court of Star Chamber.”). Attorney General Holder's August 12, 2013, Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Holder 2013 Memo), while establishing a national policy for § 841 enhancements, does nothing to pull aside the cloak of secrecy shrouding the nationwide disparities in the application of § 851 enhancements.

I. INTRODUCTION—DEFENDANT DOUGLAS YOUNG

Defendant Douglas Young, whose situation brings the issue of the § 851 enhancement before me now, pleaded guilty to conspiracy to distribute 28 grams or more of cocaine base following a prior conviction for a felony drug offense (count 1) and possession with intent to distribute 28 grams or more of cocaine base (count 2) in violation of 21 U.S.C. §§ 846, 841(b)(1)(B), and 851. His preliminary Presentence Investigation Report revealed, inter alia, that he is a 37–year–old African–American male with a Total Offense Level of 29, and 3 criminal history points, putting him in Criminal History Category II. Mr. Young's advisory U.S. Guideline range was 93 to 121 months. His entire criminal history scoring consisted of one offense—a conviction in Cook County, Illinois, in 1996, at age 20, for the manufacture/delivery of a controlled substance—cocaine base. He received probation, which he successfully completed without notation of any probation violations. His mandatory minimum sentence of 60 months is doubled to 120 months as a result of a § 851 enhancement for this 17–year–old conviction, and his maximum sentence of 40 years is increased to life, as well. However, after objections were filed by defense counsel, Mr. Young argued that his one prior conviction should receive no criminal history points, and the AUSA, the U.S. probation officer, and I agreed. Thus, Mr. Young is in Criminal History Category I and is now safety-valve eligible.

Both pre- ³ and post- ⁴ Fair Sentencing Act,⁵ I have used a 1:1 crack-to-powder ratio, rather than the historical 100:1 ratio prior to the FSA and the current 18:1 ratio post-FSA. If I use this 1:1 ratio, Mr. Young would have a base offense level of 26, minus 3 levels for acceptance of responsibility, for a Total Offense level of 23. Combined with his Criminal History Category II, this results in an advisory Guideline range of 51 to 63 months. However, in the final PSR, Mr. Young dropped to a Criminal History Category I, and is now safety-valve eligible with a Guideline range

[960 F.Supp.2d 884]

of 70 to 87 months, which lowers to 37 to 46 months using the 1:1 ratio. Because Mr. Young is safety-valve eligible, he no longer has the 5–year mandatory minimum, and the § 851 enhancement no longer doubles that mandatory minimum, but it still raises his maximum statutory sentence to life

Nevertheless, in a somewhat bizarre “O. Henry” ending, the AUSA did make a substantial assistance motion, but also made a Motion For Upward Departure For Under–Representation Of Criminal History (docket no. 88), because Mr. Young's Criminal History Category is I, despite his previous conviction for a felony drug-trafficking offense in 1996. I say “bizarre,” because a strong argument can be made that Mr. Young is in the class of 74 % of defendants nationally who are eligible for a § 851 enhancement, yet have it waived. It seems that a defendant, like Mr. Young, who pleads guilty, signs a cooperation plea agreement, actually cooperates to the degree to earn a prosecution recommendation for a substantial assistance reduction (which, in this district, is a very high bar), and who has a 17–year–old predicate state court drug conviction, where he received probation and successfully completed it, so that he received no criminal history points, is likely the kind of defendant who should receive a waiver of his § 851 enhancement. I denied the AUSA's Motion For Upward Departure. Thus, owing to the convoluted workings of Mr. Young's criminal history scoring, making him safety-valve eligible, and my rejection of the AUSA's attempt to reimpose sentencing consequences for Mr. Young's prior conviction, the harsh effect of a § 851 enhancement here was minimized for Mr. Young—but that is a very rare occurrence in this district.

Addressing the individual 3553(a) factors, I find that the 1:1 ratio issue is the only mitigating factor, which is why I am not varying any lower than the revised 1:1 ratio range of 37 to 46 months. Mr. Young asserted that the following aspects of his history and characteristics warranted a lower sentence:

• He was born in Chicago and had an unstable childhood;

• His mother was a drug addict, who was eventually murdered in 2008;

• His father was often absent from the family home as he traveled in the United States Army;

• At one point in his childhood, the State of Illinois Department of Children and Family Services conducted a home study and found that his mother was neglectful of him and his sister. Although no removal proceedings were conducted, he and his sister eventually moved in with their maternal grandmother;

• He has a history of marijuana use and completed a drug treatment program while on supervised release; and

• He was compliant while on pretrial release and, while he should not get kudos for doing what he is supposed to be doing, his being compliant on pretrial release indicates that he is amenable to supervision.

Defendant's Brief In Support Of Motion For Downward Variance (docket no. 87–1), 3–4. I have balanced against these mitigating factors the following aggravating factors:

• The length of the charged drug conspiracy and the frequency of purchases for distribution;

• The lack of any reportable Social Security Administration (SSA) income for years 2008 through 2012 and very minimal reportable income for years 2003 to 2007;

[960 F.Supp.2d 885]

• His claims of self-employment income from cutting hair of $500 per month from 2010 to the present, with no record of SSA earnings for those years; and

• His child-support obligation of $200 per month, but in arrears by over $10,000

Balancing all relevant factors, Mr. Young's August 12, 2013, Motion For Downward Variance (docket no. 87) is granted only to the extent that I have applied a 1:1 ratio. Ultimately, after evaluating the U.S.S.G. § 5K1.1 factors, I did reduce Mr. Young's sentence, based solely on application of a 1:1 ratio and Mr. Young's substantial assistance, to 24 months of incarceration followed by 4 years of supervised release on each count, to run...