US v. Garrett, 88 CR 807.

• Decision Date: 12 April 1989
• Docket Number: No. 88 CR 807.,88 CR 807.
• Citation: 712 F. Supp. 1327
• Parties: UNITED STATES of America, Plaintiff, v. James GARRETT, Defendant.
• Court: U.S. District Court — Northern District of Illinois

712 F. Supp. 1327

UNITED STATES of America, Plaintiff, v. James GARRETT, Defendant.

No. 88 CR 807.

United States District Court, N.D. Illinois, E.D.

April 12, 1989.

COPYRIGHT MATERIAL OMITTED

Mark Rotert, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

John T. Theis, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

A jury convicted James Garrett of three offenses: possession of a firearm by a felon (18 U.S.C. § 922(g)); possession of a weapon to facilitate a narcotics trafficking offense (18 U.S.C. § 924(c)); and possession of a controlled substance with intent to distribute (21 U.S.C. § 841(a)). The ultimate question for this court is the proper sentence under the Federal Sentencing Guidelines.

Mr. Garrett has moved to strike the Guidelines calculation. He raises three issues. First, he claims the government failed to prove that he meets the criteria for enhanced penalties under 18 U.S.C. § 924(e) and 21 U.S.C. § 841(b)(1)(C). Second, assuming that he is subject to statutory enhancement, he challenges his sentence under the Federal Guidelines. He claims the Guidelines double count his criminal history, in violation of his Fifth Amendment right to be free from double jeopardy. Finally, he challenges the Guidelines sentence as cruel and unusual punishment.

The first two claims are rejected and, for the reasons indicated below, it is not necessary to reach the third.

CONVICTIONS FOR STATUTORY ENHANCEMENT PURPOSES

Mr. Garrett is no stranger to the criminal court. He has seventeen prior convictions and many more arrests. To enhance the punishment on the first and third counts, the government identified five of those convictions—three for armed robbery, one for unlawful use of weapons, and one for possession of a controlled substance with intent to distribute. Whether the government successfully connected Mr. Garrett to these prior convictions is the subject of his first motion.

The convictions identified by the government are the following:

(1) Armed robbery, December 20, 1968, Circuit Court of Cook County, Illinois, No. 68-3423;

(2) Armed robbery, October 30, 1973, Circuit Court of Cook County, Illinois, No. 73-119;

(3) Armed robbery, August 31, 1976, Circuit Court of Cook County, Illinois, No. 74-6387;

(4) Possession of a controlled substance with intent to distribute, October 10, 1984, Circuit Court of Cook County, Illinois, No. 84-3410;

(5) Unlawful use of weapons, October 10, 1984, Circuit Court of Cook County, Illinois, No. 84-3838.

The government also notified defendant of a grand larceny conviction in Jackson, Mississippi on June 10, 1986, but at the hearing advised the court that it would not rely on this conviction.

At the outset of the hearing, the defendant denied he was the person convicted of the 1968 and 1973 armed robbery convictions. He admitted he was the person charged in the 1976 armed robbery conviction, but contended that his attorney and the trial judge entered a plea of guilty for him in his absence. Defendant concedes that he was the person convicted and sentenced for the two offenses committed in 1984.

As to the three armed robberies, the government called a treasury agent who testified that he obtained certified copies of the three conviction orders. He explained that he obtained the fingerprint records of the person confined as a result of these convictions and caused them to be compared with the known fingerprints of defendant Garrett. The government then introduced a fingerprint analysis which shows the fingerprints of the person confined as a result of the convictions to be the same as defendant's fingerprints taken from the defendant on April 9, 1988. It also appears from these records that defendant has from time to time used the names James E. Garrette and George Bey. This evidence was sufficient to show defendant to be the person convicted of the 1968, 1973, and 1976 offenses.

Defendant testified on his own behalf that the plea of guilty shown on the record of the 1976 conviction was entered in his absence by his attorney and the trial judge. He further stated that he served a period of incarceration on this sentence and was paroled. Defendant, when he testified, did not contest that he was the person convicted of the 1968 and 1973 offenses.

Defendant did not support his assertion that the 1976 conviction was obtained by the misconduct of his attorney and the trial judge. He did not introduce a transcript of the proceedings or call his attorney—who is a well known practitioner in this court. Defendant's testimony is not credible and does not overcome the proof presented by the record of convictions received in evidence.

Accordingly, the court finds that defendant is the person named in each of the convictions presented by the government and rejects the contention that the 1976 conviction was obtained in defendant's absence.

A. 18 U.S.C. § 924(e)

Section 924(e), Title 18, United States Code, allows the state to seek an enhanced penalty for violation of 18 U.S.C. § 922(g), felon in possession of a firearm, if the defendant has three prior convictions for either a violent felony or a serious drug offense. See generally United States v. Lowe, 860 F.2d 1370 (7th Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1639, 104 L.Ed.2d 155 (1989). Armed robbery is a violent felony, within the meaning of 18 U.S.C. § 924(e)(2)(B)(i). United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1244, 99 L.Ed.2d 442 (1988). The government seeks this enhancement. Since Mr. Garrett has three prior convictions for armed robbery, his sentence on this Count is enhanced from a maximum of five years incarceration to a minimum of 15 years, without possibility of parole.

B. 18 U.S.C. § 924(c)(1)

Section 924(c)(1), Title 18, United States Code, "provides for an enhanced punishment" if the defendant uses a firearm to facilitate a narcotics trafficking offense. Mr. Garrett is subject to this enhancement since he was convicted of a trafficking offense—possession with intent to distribute—and he was in possession of a handgun, which is considered drug paraphernalia. Any sentence he receives on Counts One and Three, therefore, must be followed by a minimum five year term, without parole.

C. 21 U.S.C. § 841(b)(1)(C)

Section 841(b)(1)(C), Title 21, United States Code, stiffens the penalty for a violation of 21 U.S.C. § 841(a), possession of a controlled substance with intent to distribute, for any defendant who has a prior felony narcotics conviction. Mr. Garrett, convicted in Count Three of violating § 841(a), is subject to this recidivist provision because he has a prior conviction in state court for the same offense: possession of a controlled substance with intent to distribute. His sentence on this count, therefore, is a maximum of 30 years incarceration followed by a mandatory term of six years supervised release.

The court concludes that Mr. Garrett is subject to the enhanced penalties in 18 U.S.C. § 924(c), 18 U.S.C. § 924(c)(1), and 21 U.S.C. § 841(b)(1)(C). The next issue is the appropriate sentencing range under the Guidelines.

SENTENCING SCHEME

A. Background

Mr. Garrett, as the above discussion amply illustrates, has had more than a little contact with the law. On the other hand, it seems fair to note that he has never been convicted of causing injury. One can express outrage at a life of criminal activity without losing sight of the very real difference between crime, and crime which injures others. As Judge Posner recently observed, the absence of injury during a career of crime "is relevant to deciding whether the sheer enormity of the defendant's conduct warrants imprisonment for the rest of his life...." United States v. Jackson, 835 F.2d at 1198 (7th Cir.1987) (Posner, J., concurring). And life imprisonment will almost certainly follow from a strict adherence to the Sentencing Guidelines in this case. Mr. Garrett is now 42. A 42 year old black male in this country has a life expectancy of 28.7 years. 2 Vital Statistics of the United States, 11 (1986). Yet, as demonstrated below, his minimum Guidelines sentence is 30 years without parole, followed by a mandatory consecutive term of five years on Count Two, which is not counted on the Guidelines. Mr. Garrett will, in other words, die in prison if he is sentenced under the Guidelines.

And for what? For the past, no doubt, since by definition recidivist statutes penalize the defendant for what he did once, and not only for what he has done now. See United States v. Jordan, 870 F.2d 1310, 1315 (7th Cir.1989). But principally, Mr. Garrett is to be sentenced for what he has most recently done. Id. It is this offense which ultimately costs him his liberty, since but for this case he would, presumably, still be on parole. To that end, the facts in this case take on particular significance.

In April, 1988, Mr. Garrett drove to an alley in Chicago, parked, and approached a woman who the police believed was a prostitute. Garrett and the woman walked into the alley toward his car, where they were immediately followed and approached by two Chicago police officers. One officer shined his flashlight into the front seat where he saw a torn brown bag containing a number of packets known as "snow seals." The officer removed the bag and discovered a .25 caliber pistol. The police recovered only 3.5 grams of cocaine from the packets. This is a small amount, and but for the fact that the cocaine was divided into a number of packets, would not give rise to an inference of any intent to distribute. They arrested Mr. Garrett and released the woman. She did not testify at trial.¹

That, ultimately, is the conduct which consigns Mr. Garrett to die in prison.

B. Sentence Under the Statutes

The maximum statutory penalty on Count One, felon in possession of a firearm, is a fine of up to $5,000 and/or imprisonment of up to five years. 18 U.S.C. § 924(a)(1)(D). This...