US v. Patillo

• Decision Date: 23 March 1993
• Docket Number: No. CR 92-0076 JSL.,CR 92-0076 JSL.
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Johnny PATILLO, Defendant.

817 F. Supp. 839

UNITED STATES of America, Plaintiff, v. Johnny PATILLO, Defendant.

No. CR 92-0076 JSL.

United States District Court, C.D. California.

March 23, 1993.

Christopher M.E. Painter, Asst. U.S. Atty., Los Angeles, CA, for plaintiff.

Milton C. Grimes, Santa Ana Heights, CA, for defendant Johnny F. Patillo.

SENTENCING OPINION

LETTS, District Judge.

On April 14, 1992, the defendant Johnny Patillo pled guilty to a single count indictment that charged him with possession with intent to distribute approximately 680.7 grams of crack cocaine. 21 U.S.C. § 841(a)(1) (1988 and Supp. III 1991). On December 18, 1992, the court sentenced defendant, after orally making findings that it was compelled to impose a mandatory minimum sentence of ten years under 21 U.S.C. § 841(b)(1)(A) (1988 and Supp. III 1991). The Sentencing Guidelines called for a sentence of between 151 and 188 months (twelve years seven months to fifteen years), a range from which the court found departure appropriate. The court indicated that written findings would follow, which are set forth below.

I. MINIMUM SENTENCE

At least at the outset, this sentencing appeared to place me in the position of making the most difficult choice I have yet faced, between my judicial oath of office, which requires me to uphold the law as I understand it, and my conscience, which requires me to avoid intentional injustice. When I took defendant's plea of guilty in this case, he seemed to me to be the clearest possible example of everything that is wrong with guideline sentencing and statutorily imposed mandatory minimum sentences.

On January 16, 1992, defendant, a twenty-seven year old African-American man, brought a package containing approximately 681 grams of crack cocaine to a Federal Express office in Los Angeles and attempted to send the package to Dallas, Texas. According to defendant, he had never previously been involved in trafficking drugs, but had accepted a neighbor's offer of $500 to put the package in the mail. At the time, he was subject to extraordinary financial pressures, due to an accumulation of debt for student loans, credit cards, phone bills and rent. Defendant admits knowing that the package contained illegal drugs, but has steadfastly denied prior knowledge of the type of drug, or the amount of the drug the package contained. As far as the court can determine, defendant had never before been involved in any criminal activity. He had obtained a college education and held a steady job up until the time he was incarcerated.

The government's position is that the court cannot legally impose a sentence of less than ten years in this case, and it is correct. The ten year minimum is specifically mandated by a statute, 21 U.S.C. § 841(b)(1)(A), which has been upheld as constitutional by the Ninth Circuit Court of Appeals in decisions that bind this court. The court postponed sentencing several times in the hope of finding some reasoned basis for holding that precedent does not bind the court. This, however, has proved impossible. Defendant has argued that the mandatory minimum is unconstitutionally vague, that it is racially discriminatory, and that it violates due process and the Eighth Amendment. Ninth Circuit precedent rejects these arguments, and instead compels this court to apply the mandatory minimum. See United States v. Shaw, 936 F.2d 412, 416 (9th Cir.1991) (Section 841(b) is not unconstitutionally vague for failing to define "cocaine base"); United States v. Van Hawkins, 899 F.2d 852, 854 (9th Cir.1990) (same)¹; United States v. Harding, 971 F.2d 410, 413 (9th Cir.1992) (Section 841(b)'s distinction between cocaine base and cocaine does not violate equal protection), cert. denied, ___ U.S. ___, 113 S.Ct. 1025, 122 L.Ed.2d 170 (1993); United States v. Hoyt, 879 F.2d 505, 512-14 (9th Cir.) (ten year mandatory minimum for first time offenders required by 21 U.S.C. § 841(b)(1)(A) does not violate the Eighth Amendment's protection against cruel and unusual punishment or the Fifth Amendment's equal protection and due process guarantees), mod. on other grounds, 888 F.2d 1257 (9th Cir.1989); United States v. Savinovich, 845 F.2d 834, 838-39 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988). See also Chapman v. United States, ___ U.S. ___, ___, 111 S.Ct. 1919, 1928, 114 L.Ed.2d 524 (1991) (upheld mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B) despite the fact that the weight of paper upon which LSD is carried is factored into the determination of the quantity which triggers the mandatory sentence).

I, however, will no longer apply this law without protest, and with no hope for change.

Statutory mandatory minimum sentences create injustice because the sentence is determined without looking at the particular defendant.² Under 21 U.S.C. § 841(b)(1)(A), the mandatory minimum sentence is triggered by two factors only: (1) the type of drug and (2) the amount of drug. In this case, it is the fact that the package defendant brought to Federal Express contained 681 grams of crack cocaine which raises this offense to one in which the minimum sentence is ten years, without possibility of parole. If the package contained a different narcotic, or a lesser quantity of the same substance, defendant might have been sentenced to straight probation.

By agreement with the government, defendant's plea of guilty in this case rested upon his admission that he delivered a package to Federal Express which contained approximately 681 grams of cocaine base, and that at the time he made the delivery, he knew that the package contained an illegal substance. That is all his plea of guilty entailed. Defendant did not admit to knowing that the substance in the envelope was cocaine base, or to knowing that the package contained 681 grams of crack. In fact, he expressly denied any such knowledge.

Admittedly, the pre-sentence report ("PSR") filed by the Probation Office contains information which might cause one to speculate that defendant may have had a somewhat greater involvement in the business of drug trafficking than he has admitted. Any such information, however, is purely circumstantial. This court cannot form a reasoned conclusion based upon this information, and the government has made no effort to develop it. It has not been developed further because defendant's role in the business of drug trafficking is almost entirely irrelevant for sentencing purposes. The court considered information regarding the defendant's role in drug trafficking, but as explained below, only as a basis for departure.

The minimum ten year sentence to be served by defendant was determined by Congress before he ever committed a criminal act. Congress decided to hit the problem of drugs, as they saw it, with a sledgehammer, making no allowance for the circumstances of any particular case. Under this sledgehammer approach, it can make no difference whether defendant actually owned the drugs with which he was caught, or whether, at a time when he had an immediate need for cash, he was slickered into taking the risk of being caught with someone else's drugs. Under the statutory minimum, it can make no difference whether he is a life time criminal or a first time offender. Indeed, under this sledgehammer approach, it could make no difference if the day before making this one slip in an otherwise unblemished life, defendant had rescued fifteen children from a burning building, or had won the Congressional Medal Of Honor while defending his country.

I do not advocate giving up the attempt to rid our society from the evils of drug use. Drug crimes are not "victimless crimes," and it would be naive to suggest otherwise. Drug users use more than their share of many social benefits, and therefore victimize everyone who must pay for them. The need for money with which to buy drugs is the most frequent reason for committing crimes given by defendants convicted in this court. These crimes have victims. Drug users also have children, who suffer the effects of their parents' drug use.

I have no great difficulty imposing lengthy prison sentences upon proven high-volume drug merchants, and others proven to be high in the chain of drug distribution.³ In some cases I would have imposed the same sentence in the exercise of pure discretion, not governed by any guideline. If, for example, defendant had admitted that he knew what was in the package he delivered to Federal Express, or if the government had been required to prove it, this court could sentence him as the government recommends, with a clear conscience, although still not without misgivings.

Since the days when amputation of the offending hand was routinely used as the punishment for stealing a loaf of bread, however, one of the basic precepts of criminal justice has been that the punishment fit the crime. This is the principle which, as a matter of law, I must violate in this case.⁴

Defendant could have been prosecuted for this offense by the state, rather than the federal government. A review of the relevant California state criminal statute suggests that had that occurred most likely he would have been incarcerated for a period of between one and two years. See Cal.Health & Safety Code § 11351.5 (West 1993) (possession of cocaine base for sale punishable by a term of imprisonment of three, four or five years, with eligibility for parole after half-time served).⁵ Surely there are those who would say that this would be too short a period for the owner of drugs for distribution. I cannot imagine, however, those who would argue that such a sentence would be inadequate for a first time offender who merely delivered a package to a Federal Express office, knowing that it contained illegal drugs, but not knowing what drugs or the quantity.

I, for one, do not understand how it came to be that the courts of this nation, which stood for centuries as the defenders of the rights of minorities against...