US v. Murphy, 2:91-CR00042 (PCD).
| Decision Date | 27 February 1992 |
| Docket Number | No. 2:91-CR00042 (PCD).,2:91-CR00042 (PCD). |
| Citation | 786 F. Supp. 1105 |
| Parties | UNITED STATES of America v. Shawn MURPHY. |
| Court | U.S. District Court — District of Connecticut |
Alex Hernandez, Asst. U.S. Atty., Hartford, Conn., for U.S.
John Andreini, Hartford, Conn., for Shawn Murphy.
RULING ON MOTION TO DECLARE THE PENALTY SCHEME OF THE STATUTE AND RELATED SENTENCING GUIDELINES UNCONSTITUTIONAL
On September 13, 1991, defendant plead to one count of growing in excess of 100 marijuana plants in violation of 21 U.S.C. § 841(a)(1). The penalty for this offense includes imprisonment for not less than 5 years, nor more than 40 years. 21 U.S.C. § 841(b)(1)(B)(vii). The sentencing guideline range, based on the statutory plant-weight equivalency, is 63-78 months. U.S.S.G. § 2D1.1. Defendant alleges that that penalty scheme deprives him of equal protection and due process rights.
21 U.S.C. § 841(b)(1)(B)(vii). The guideline provides:
In the case of an offense involving marijuana plants, if the offense involved (A) 50 or more marijuana plants, treat each plant as equivalent to 1 KG of marijuana; (B) fewer than 50 marijuana plants, treat each plant as equivalent to 100 G of marijuana. Provided, however, that if the actual weight of the marijuana is greater, use the actual weight of the marijuana.
U.S.S.G. § 2D1.1. Defendant argues that the statute arbitrarily and irrationally creates one sentencing scheme predicated on an unfounded, irrebuttable equivalent marijuana weight per plant for growing marijuana plants and another scheme based upon the actual weight of the marijuana for marijuana possession. Defendant further alleges that the scheme irrationally relates penalty severity to the time of the arrest within the production cycle as a result of using an arbitrary, unfounded per plant equivalency for plant growing. Suggesting that defendant misinterprets the statute and guidelines, the government argues that the weight equivalency per plant is not intended to reflect scientific accuracy but is rationally related to the legitimate congressional wish to provide severe penalties for a specific violation, marijuana plant growing.
Acts of Congress are subject to judicial review, but only with considerable deference to legislative prerogative. See United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). "Acts do not offend principles of substantive due process if they bear a `reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory.'" United States v. Buckner, 894 F.2d 975 (8th Cir.1990), quoting Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940 (1934). See also, Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974) (). A defendant is not entitled to "an individualized sentencing, and Congress may constitutionally prescribe mandatory sentences or otherwise constrain the exercise of judicial discretion so long as such constraints have a rational basis." United States of America v. Huerta, 878 F.2d 89, 94 (2nd Cir.1989). See also, Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The inquiry here is thus whether there is a rational basis for the penalty provisions established by congressional directive.1
In enacting § 841(b)(1)(B), Congress "intended to punish growers of marijuana by the scale of potential of their operation and not just by the weight of the plants seized at a given moment." United States v. Eves, 932 F.2d 856, 859 (10th Cir.1991), quoting United States v. Fitol, 733 F.Supp. 1312, 1315 (D.Minn.1990). Congress established a weight equivalency of one plant to one kilogram of usable marijuana in cases involving over 100 plants in order to preclude debate over the actual weight of a marijuana plant. Defendant does not contest Congress's authority to mandate a weight equivalency scheme, but avers that the equivalency was arbitrarily adopted. The government argues that the ratio of one kilogram per plant is founded on the market-oriented approach, "intense focus on major traffickers ... who are responsible for creating and delivering very large quantities of drugs." H.R.Rep. No. 845, 99th Cong., 2d Sess. 11-12 (1986). "Congress focused on the number of doses that a dealer could immediately distribute from a sale of drugs." United States v. Hoyt, 879 F.2d 505 (9th Cir.1989). Punishment is thus correlated to potential impact upon the market. This analysis, however, does not provide a rational basis for the penalty scheme. In United States v. Buckner, 894 F.2d 975 (8th Cir.1990), the court addressed the constitutionality of a sentencing recommendation equating 1 gram of cocaine base with 100 grams of cocaine. In upholding the guideline, the court pointed to extensive congressional hearings regarding the market potential of crack-cocaine in contrast to that of cocaine, and noted that "Congress considered cocaine base to be more dangerous to society than cocaine because of crack's potency, its highly addictive nature, its affordability, and its increasing prevalence." Buckner, 894 F.2d at 978. Congress's deliberations on this matter provide further insight:
Because crack is so potent, drug dealers need to carry much smaller quantities of crack than cocaine powder. By treating 1,000 grams of feebase sic cocaine no more seriously than 1,000 grams of cocaine powder, which is far less powerful than freebase, current law provides a loophole that actually encourages drug dealers to sell the more deadly and addictive substance, and lets them sell thousands of doses without facing the maximum penalty possible.
Buckner, 894 F.2d at 979, quoting 132 Cong.Rec. S8092 (daily ed. June 20, 1986). An equivalency can be the method for prescribing sentence severity in relation to the respective danger to the community from the two forms of cocaine. However, neither the legislative history nor the government's memorandum demonstrate a plausible rationale for the concept that growing marijuana plants poses a significantly greater or different threat to the market than the possession of the harvested, market-ready yield of such plants. Unharvested marijuana has not been shown to constitute a more immediate and pernicious danger than marijuana ready for use.
If the offense is to be punished according to its potential impact upon the market, some rational relationship between one marijuana plant and its presumed marketable marijuana potential is required. The government does not dispute the failure of the statutory and guideline equivalency to reflect accurately the potential yield of a marijuana plant.2 The guidelines' commentary regarding the equivalency of 100 grams of marijuana per marijuana plant for less than fifty plants confirms that a one kilogram per plant equivalency is unrelated to the actual production potential of a marijuana plant:
The decision to treat each plant as equal to 100 grams is premised on the fact that the average yield from a mature marijuana plant equals 100 grams of marijuana. In controlled substance offenses, an attempt is assigned the same offense level as the object of the attempt.... Consequently, the Commission adopted the policy that, in the case of fewer than fifty marihuana plants, each plant is to be treated as the equivalent of an attempt to produce 100 grams of marihuana, except where the actual weight of the usable marihuana is greater.
U.S.S.G. § 2D1.1, Commentary 89-90. See also, United States v. Osburn, 756 F.Supp. 571, 576 (N.D.Ga.1991) (); United States v. Lee, 762 F.Supp. 306, 307 (D.Kan.1991) ( ). That factually substantiated per plant equivalency demonstrates the irrationality and arbitrariness of a ten-fold increase in the equivalency for over 50 plants (under the guidelines) and for 100 or more plants (under the statute).
The rationality of the one kilogram equivalency is thrown further into question when the actual weight is used to measure sentences where the marijuana has been harvested and is market ready. Since the penalty for possession of market-ready marijuana is scaled to its potential danger by its weight, whereas the penalty for growing plants is scaled to an arbitrary, unsubstantiated equivalent weight of marijuana for over 50 or 100 plants, the result is anomalous. "A defendant who is not arrested until after he has harvested the marijuana will inevitably receive a lighter penalty than a defendant who is arrested while the plants are still growing...." Osburn, 756 F.Supp. at 576. The following table is illustrative:
Plants Sentence
Grown Yield Offense Level3 Range
49 4.9 Kg. 12 10-16 mos
50 50 Kg. 20 33-41 mos
100 100 Kg. 26 63-78 mos
49* 4.9 Kg. 12 10-16 mos
50* 5 Kg. 14 15-21 mos
100* 10 Kg. 16 21-27 mos
Thus, a significantly greater penalty is imposed on those apprehended before harvest than on those apprehended after harvest.4 Neither the congressional record nor the government's brief offer a rationale for treating with...
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U.S. v. Young
...rather than the number of plants, he would have received a much lower sentence. Relying on the reasoning in United States v. Murphy, 786 F.Supp. 1105, 1107 (D.Conn.1992) (now vacated by United States v. Murphy, 979 F.2d 287 (2d Cir.1992)), Mr. Young asks this court to declare the sentencing......
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US v. Davis, Crim. A. No. 91-69-01.
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