US v. Gomez, Crim. No. 88-80705.

• Decision Date: 28 November 1989
• Docket Number: Crim. No. 88-80705.
• Citation: 742 F. Supp. 407
• Parties: UNITED STATES of America, Plaintiff, v. Nelson Lemas GOMEZ, Defendant.
• Court: U.S. District Court — Western District of Michigan

742 F. Supp. 407

UNITED STATES of America, Plaintiff, v. Nelson Lemas GOMEZ, Defendant.

Crim. No. 88-80705.

United States District Court, E.D. Michigan, S.D.

November 28, 1989.

Robert W. Donaldson, U.S. Attorney's Office, Detroit, Mich., for plaintiff.

Juan A. Mateo, Detroit, Mich., for defendant.

AMENDED SENTENCING MEMORANDUM AND ORDER^*

COHN, District Judge.

I.

On October 4, 1989, the Court sentenced defendant to concurrent 30-year terms on his jury conviction of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) and 846, and for possession with intent to distribute five kilograms or more of cocaine, 21 U.S.C. § 841(a)(1). In imposing the sentences, the Court rejected the government's recommendation of a life-without-parole sentence, noting that defendant, under the Court's sentences, was not eligible for parole and would have to serve the full 30 years less credits for satisfactory behavior.

On reflection, the Court is satisfied the sentences were too long and sua sponte, pursuant to Fed.R.Crim.P. 35, reduces the sentences to concurrent 22-year terms. The reasons for the Court's actions follow. They are a revision of and a substitution for the Court's bench comments at the time of sentencing.

II.

Defendant is a national of Colombia. He is probably in this country illegally and will likely be deported on his release. He was convicted for his participation in a complicated scheme to smuggle into this country 576 kilograms of cocaine and 16,300 pounds of marihuana from Colombia. The scheme was actually a sting, set up by the Drug Enforcement Administration, that involved a DC-6 aircraft transporting the contraband from Colombia to Grosse Ile, Michigan. After the aircraft landed in September, 1987, the contraband was removed to two warehouses in Dearborn, Michigan, where a number of the participants were arrested. The defendant was consignee of 400 kilograms of the cocaine, which he apparently intended to distribute along the eastern seaboard. Defendant was previously implicated in the distribution of approximately 80 kilograms of cocaine but never convicted. In the Court's view, defendant is a long-time, sophisticated drug trafficker with connections running directly to the Medelin Cartel.

The participants arrested in September, 1987 pleaded guilty and received varying custodial terms ranging from 20 years to 12 years to shorter terms. Defendant was indicted on October 10, 1988, about a year after the scheme was thwarted, when the government was first able to induce confederates to testify against him. He is the only participant who did not plead guilty and who did not cooperate with the government. Defendant insists, however, that his offers of cooperation were rejected by the government.

III.

The government recommended a life-without-parole sentence on the grounds that "it is only fair and just that the defendant, because of the size of his operation, his culpability in the instant offense, and his position with the Colombia drug dealing cartel, should be sentenced by this court to the maximum penalty allowable under the statute." Government's Sentencing Memorandum at 4. The government supported its recommendation by noting, had the amount of cocaine been only five kilograms, the minimum sentence required by law is 10 years. The government also urged that the Court impose a life-without-parole sentence because the defendant possessed more cocaine than the amount that triggers a life-without-parole sentence for a conviction of involvement in a continuing criminal enterprise under 21 U.S.C. § 848(b). In addition, the government cited the Michigan statute that mandates a life-without-parole sentence for possession with intent to deliver 650 grams or more of cocaine, Mich.Comp.Laws Ann. § 333.7401(2)(a)(i), again noting that the defendant possessed more than the statutory amount.

Defendant, without suggesting any specific sentence, argued that the government's recommendation was excessively harsh given the sentences imposed on other participants in the scheme, the level of defendant's culpability in the conspiracy, as well as his family situation and lack of prior convictions.

IV.

A.

Life-without-parole is the penultimate sentence, Solem v. Helm, 463 U.S. 277, 303, 103 S.Ct. 3001, 3016, 77 L.Ed.2d 637 (1983). Most of the states whose criminal law allows for such a sentence have adopted it as a surrogate for the death penalty, primarily to save the expense and time so frequently occasioned by that sentence. Such a sentence should be imposed only for the severest of crimes and in the rarest of circumstances. While there are a multitude of federal criminal statutes that allow for or mandate a life sentence, it appears that most of them concern drug-related crimes.

B.

Congress first began setting minimum sentences for drug-related crimes in 1951. In 1956, Congress eliminated parole for certain of those crimes. In Warden v. Marrero, 417 U.S. 653, 661-62, 94 S.Ct. 2532, 2537, 41 L.Ed.2d 383 (1974), the Supreme Court discussed a predecessor statute to 21 U.S.C. § 841(a) that provided for no parole:

The legislative history of the statute reveals that Congress meant ineligibility for parole to be treated as part of the "punishment" for the narcotics offenses for which respondent was convicted. The statute was enacted as part of the Narcotic Control Act of 1956. The statute embodied congressional acceptance of the approach that effective combat against the contagion of drug addiction required the imposition of severe penalties for certain narcotics offenses. Congress therefore enacted lengthy mandatory minimum sentences as a means of decreasing both drug addiction and trafficking.... But Congress believed that longer sentences would not achieve the desired results unless the offender remained imprisoned for his full term.

In evaluating the effectiveness of the presently prescribed penalties, it must be recognized that special incentives in our penal system serve to decrease the actual time spent in a penal institution under a sentence imposed by a court. The violator is eligible for parole after serving one-third of his sentence.... Available data from the Bureau of Prisons, indicates that a narcotics violator actually serves an average of less than two-thirds of the sentence imposed by the court. This mitigation of the sentence tends to defeat the purposes of existing legislation....

H.R.Rep. No. 2388, 84th Cong., 2d Sess., 10-11 (1956).

Congress' attitude about no parole and a mandatory minimum sentence for drug offenses softened in 1970, when the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, was enacted. Ironically, this is the same statute that first gave federal judges discretion to impose a life-without-parole sentence for involvement in a continuing criminal enterprise, 21 U.S.C. § 848. By adopting the statute, Congress set the range of sentencing options for conviction of such a crime between a minimum of 10 years and a maximum of life-without-parole depending on particular circumstances. In eliminating a mandatory minimum for conviction of possession with intent to distribute cocaine, Congress said:

The foregoing sentencing procedures give maximum flexibility to judges, permitting them to tailor the period of imprisonment, as well as the fine, to the circumstances involved in the individual case.

The severity of existing penalties, involving in many instances minimum mandatory sentences, have led in many instances to reluctance on the part of prosecutors to prosecute some violations, where the penalties seem to be out of line with the seriousness of the offense. In addition, severe penalties which do not take into account individual circumstances, and which treat casual violators as severely as they treat hardened criminals, tend to make convictions somewhat more difficult to obtain. The committee feels, therefore, that making the penalty structure in the law more flexible can actually serve to have a more deterrent effect than existing penalties, through eliminating some of the difficulties prosecutors and courts have had in the past arising out of the minimum mandatory sentences.

H.R.Rep. No. 1444, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News 4566, 4576.

In enacting the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207, Congress reversed itself and hardened its attitude toward drug trafficking, amending 21 U.S.C. § 841(b) to extend the range of a sentence for violation of the statute from a minimum of 10 years to a maximum of life-without-parole for a first time conviction of possession with intent to distribute five kilograms or more of cocaine. Prior to the 1986 amendment, the penalty for possession with intent to distribute 100 grams or more of cocaine ranged from probation to not more than 15 years with parole eligibility. Strangely, there was no House or Senate report accompanying the Anti-Drug Abuse Act of 1986 to explain the change in Congress' attitude. Perhaps Congress envisioned that the newly created Sentencing Commission would establish criteria for a life-without-parole sentence so that federal judges, rather than exercising unfettered discretion, would exercise guided or structured discretion in imposing such a sentence. This is only speculation. The legislative history, as the Court has examined it, simply does not provide any insight into Congress' intentions in increasing the maximum sentence that may be imposed for conviction under 21 U.S.C. § 841(a) to life-without-parole. Insofar as the sentencing guidelines are concerned, the maximum sentence which can be imposed for possession with intent to distribute cocaine, regardless of amount and without embellishment, for a first time conviction, is 235 months.

The literature on life-without-parole sentences is silent as to the factors that should inform a judge's discretion. See, e.g., Cheatwood, The...