US v. McMurray

• Decision Date: 30 September 1993
• Docket Number: No. 8:CR92-00012.,8:CR92-00012.
• Citation: 833 F. Supp. 1454
• Parties: UNITED STATES of America, Plaintiff, v. Oscar McMURRAY, a/k/a "Osama Omar," Tracy N. Lomax, a/k/a "Sauce," and Stephanie Lomax, a/k/a Stephanie McMurray, Defendants.
• Court: U.S. District Court — District of Nebraska

833 F. Supp. 1454

UNITED STATES of America, Plaintiff, v. Oscar McMURRAY, a/k/a "Osama Omar," Tracy N. Lomax, a/k/a "Sauce," and Stephanie Lomax, a/k/a Stephanie McMurray, Defendants.

No. 8:CR92-00012.

United States District Court, D. Nebraska.

September 30, 1993.

COPYRIGHT MATERIAL OMITTED

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Maria Leslie, Sp. Asst. U.S. Atty., Omaha, NE, for plaintiff.

Stuart Dornan, Omaha, NE, for Oscar McMurray.

Lawrence G. Whelan, Omaha, NE, for Tracy Lomax.

Susan Koenig-Cramer, Omaha, NE, for Stephanie Lomax.

MEMORANDUM AND ORDER

KOPF, District Judge.

I have before me various objections to the Presentence Reports (PSR's) prepared for the above-captioned defendants. This case involves sentences under the Sentencing Reform Act of 1984. Because of the severity of the potential sentences, I shall issue this memorandum rather than resolve the objections by abbreviated order.

I.

A.

The defendants, who previously resided in Portland, Oregon, were each found guilty by a jury of conspiracy to distribute "crack" cocaine in Omaha, Nebraska, in violation of 21 U.S.C §§ 846 and 841(a)(1) and related offenses.¹ The probation officer has recommended a finding that the quantity of "crack" involved in the conspiracy and foreseeable to each defendant amounts to over 12.6 kilos of the substance.²

Defendant Tracy N. Lomax (T. Lomax) is an unmarried, 33-year-old, African-American male with six dependents.³ He has a high-school diploma and some college training. He was last employed in 1992 as manager of an arcade.

The probation officer set T. Lomax's base offense level at 40, increased it by 2 points for possession of a firearm, and increased it again by 4 points for his leadership role in the offense. The total offense level calculated by the probation officer was 46. The probation officer found that T. Lomax's criminal history score was 7, producing a criminal history category of IV. The guideline range is nothing less than life in prison.

Defendant Stephanie Lomax (S. Lomax) is a 25-year-old, African-American female and T. Lomax's cousin. She is unmarried, pregnant, and has two dependents. She has earned her GED. She has received public assistance for the last four years, but was employed for a time at the arcade where T. Lomax worked.

The probation officer set S. Lomax's base offense level at 40, and increased the level by 4 points for her leadership role in the offense. The total offense level calculated by the probation officer was 44. The probation officer found that S. Lomax's criminal history score was zero, producing a criminal history category of I. The guideline range is nothing less than life in prison.

Defendant Oscar McMurray (McMurray) is a 23-year-old, African-American male and T. Lomax's half brother. He is unmarried and has no dependents. He has a ninth grade education. He has had no verifiable employment for periods of time exceeding one month during the last few years. McMurray has been diagnosed by both defense and court-appointed psychiatrists as suffering from a major mental illness known as bipolar disorder (commonly referred to as manic depression). He takes lithium by prescription to deal with the disorder. McMurray admitted possession of 14 grams of "crack" on October 11, 1988, but defended the criminal charges against him at trial, primarily on the basis of diminished capacity and insanity. On the first day of trial, McMurray tried twice to enter a plea of guilty to the charges, but withdrew the tendered pleas when he became uncertain what he wanted to do.

The probation officer set McMurray's base offense level at 40, increased it by 2 points to account for a gun, and then decreased it by 2 points to account for McMurray's minor role in the offense. The total offense level calculated by the probation officer was 40. The probation officer found that McMurray's criminal history score was 3, producing a criminal history category of II.⁴ The guideline imprisonment range is 324 to 405 months.

I have previously tentatively denied, (Filing 390), all defense objections to the respective Presentence Reports. However, because I felt certain of the objections warranted an evidentiary hearing, I conferred with counsel on my own motion and scheduled and held such a hearing. After the hearing was concluded, the parties requested an additional opportunity to brief these issues. I have considered the briefs and the arguments of the parties.

B.

I now find and conclude that the PSR (including the addendum) for T. Lomax is correct as a matter of fact and correct as a matter of law. I adopt the PSR (including the addendum) as my statement of fact and law as supplemented by this memorandum opinion.

I now find and conclude that the PSR (including the addendum) for S. Lomax is correct as a matter of fact and correct as a matter of law with the exception that S. Lomax's role in the offense should be adjusted downward 1 point to reflect her status as a manager or supervisor, but not a leader. I adopt the PSR (including the addendum) as my statement of fact and law as supplemented and modified by this memorandum opinion.

I now find and conclude that the PSR for McMurray is correct as a matter of fact and correct as a matter of law with the exceptions that (a) McMurray's proper criminal history category is II, not III, (b) the amount of "crack" attributable to McMurray is 468 grams, not 12.6 kilos, and (c) the court should depart downward under U.S.S.G. § 5K2.13 due to the diminished capacity of the defendant. I adopt the PSR (including the addendum) as my statement of fact and law as supplemented and modified by this memorandum opinion.

My reasons for these findings and conclusions are set forth in the following portion of this memorandum.⁵

II.

The defendants have raised the following objections to my tentative findings: (a) that the treatment of "crack" cocaine versus powder cocaine under the Guidelines violates the Constitution; (b) that the Sentencing Commission did not contemplate the disproportionate impact of the "crack" guidelines on African Americans and that, as a result, the court should depart downward under U.S.S.G. § 5K2.0, p.s., in order to ameliorate such discriminatory impact; (c) that there is not adequate proof that the substance involved in this case was in fact "crack" cocaine; (d) that the probation officer's calculation of the amount of "crack" cocaine involved in this conspiracy is in error; (e) that the amounts of "crack" attributed to each defendant by the probation officer are in error in that such amounts were not reasonably foreseen by the defendants; (f) that the probation officer should not have increased McMurray's offense level because of a gun; (g) that the probation officer should have reduced McMurray's offense level for acceptance of responsibility; (h) that the court should depart downward in McMurray's case because of his mental illness; and (i) that the probation officer erred in setting S. Lomax's role in the offense as a "leader/organizer."

A.

The defendants argue that the "crack" guidelines violate the Constitution. The defense argument is twofold: (1) it is irrational to treat "crack" differently from cocaine in powder form and therefore such treatment denies the defendants substantive due process of law; and (2) the harsh "crack" guidelines have a disparate impact upon African Americans and therefore these African-American defendants have been denied equal protection of the law. I reject each of these arguments because binding precedent compels me to do so.

The "crack" guidelines, (U.S.S.G. § 2D1.1(a)(3) & (c)(13), Drug Quantity & Drug Equivalency Tbls.), "treat one gram of cocaine base the same as one hundred grams of cocaine." United States v. Buckner, 894 F.2d 975, 977 (8th Cir.1990). This treatment was predicated upon a congressional directive:

In determining the sentencing ranges for drug offenses, the United States Sentencing Commission began with the minimum penalties set forth by Congress in 21 U.S.C. § 841(b) (1982 & Supp. V 1987). The "100 to 1 ratio" of cocaine to cocaine base in the Guidelines is derived directly from Section 841(b), which mandates the same minimum sentence for crimes involving 50 grams or more of a substance containing cocaine base as it does for crimes involving 5,000 grams or more of ordinary cocaine. Compare 21 U.S.C. § 841(b)(1)(A)(iii) (1982 & Supp. V 1987) with § 841(b)(1)(A)(ii)(II) (1982 & Supp. V 1987). Clearly, the United States Sentencing Commission only implemented a congressional directive set forth by statute when applying the "100 to 1 ratio" to its delineation of sentencing ranges. In Mistretta v. United States, 488 U.S. 361 410, 109 S.Ct. 647, 675, 102 L.Ed.2d 714 (1989), the Supreme Court held constitutional Congress's power to implement its directives in this way. Therefore, the sole question before us in deciding Buckner's substantive due process challenge is whether the decision by Congress to apply a "100 to 1 ratio" is constitutional.

Id. at 978 (footnotes omitted).

Thus, in Buckner, the United States Court of Appeals for the Eighth Circuit found that due deference should be given to the Guidelines inasmuch as they represent a congressional mandate. Id. at 978. Reviewing the legislative history of Congress's deliberations on "crack," the Buckner court found that "members of Congress considered cocaine base crack to be more dangerous to society than cocaine because of crack's potency, its highly addictive nature, its affordability, and its increasing prevalence." Id. (footnote omitted). As a result, the Buckner court held that the "100 to 1" ratio "is rationally related to Congress's objective of protecting the public welfare." Id. at 980.

The Buckner decision resolves the defense challenge in this case that the guideline treatment of "crack" is not rational. Whether "crack" is in fact more dangerous than powder cocaine is not open for debate in this court.⁶ The court of appeals has...