Sixth Circuit Court of Appeals: Sentence can be revisited if ‘based on’ revised crack cocaine guidelines

by Lee Davis

• US v. MICHAEL D. JACKSON

FSA: challenges powder v. crack

This appeal arises from the conviction of Michael Jackson after pleading guilty in June 2009 to one count of intent to distribute more than five grams of cocaine. Jackson was found to be a Career Offender. The district court delayed his sentencing for more than a year, anticipating Congress was about to pass a new law regarding crack cocaine sentencing guidelines. The court felt it could not wait any longer and sentenced Jackson on July 16, 2010.

Jackson filed a timely notice of appeal. The Fair Sentencing Act was passed almost immediately thereafter, on August 3, 2010. At Jackson’s sentencing, the district court discussed at length the terrible disparity between the crack and powder cocaine sentencing guidelines. The district court clearly wanted Jackson to have a more fair sentence but felt its hands were tied. The district court ultimately decided to grant a 38-month downward variance from the Career Offender guideline.

Jackson seeks a remand to the district court for re-sentencing in light of the recent reduction in crack cocaine sentences. The government contends no reduction should be allowed given that his sentence was based on the Career Offender guidelines and not the crack cocaine guidelines. The Sixth Circuit recognized that Jackson’s criminal history meant that the Career Offender guidelines had to be considered but held that the district court should have the opportunity to revisit the sentence in light of new crack cocaine sentencing guidelines.

What appears to have happened is that the district court varied downward from the Career Offender guideline to a sentence more in lie with the what it believed was reasonable given the crack versus powder cocaine disparity. The Sixth Circuit says it believes had the revised guidelines been in place, it is clear the district court would have sentenced Jackson to a reduced sentence. Because the district court found Jackson to be a Career Offender and then sentenced him below the range for Career Offenders, noting a disagreement with crack guidelines, it is clear to the Sixth Circuit that the sentence was “based on” the crack guidelines as much as the Career Offender guidelines.

The Court further discussed the instruction in Freeman v. United States to:

… isolate whatever marginal effect the since-rejected Guideline had on the defendant’s sentence. Working backwards from this purpose, §3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence.

The majority held that the crack cocaine guidelines were clearly a relevant part of the analytic framework used by the district court to determine Jackson’s sentence. The Sixth Circuit was clear to take no position regarding whether Jackson’s sentence should be changed, but remanded the decision to the district court to consider the retroactive crack cocaine guidelines. 

To read the full opinion, click here.

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Lee Davis practices law in federal court in the sixth circuit representing people in federal cases.

Shocking Allegations Concerning Behavior of Knoxville Judge in Christian/Newsom Slaying

by Lee Davis

A Knoxville Criminal Court judge was so addicted to pain drugs during his last several years serving on the bench that he was having sex and buying prescription drugs on the street during courtroom breaks.

As we discussed here previously, Criminal Court Judge Richard Baumgartner unbelievably purchased drugs from people he had sentenced to prison.  Despite the nature of his acts while in office, most people around him did not know that Judge Baumgartner had a problem until months after he stepped down from the bench in March 2011 for a single count of official misconduct. As new allegations continue to surface about his behavior, others question whether he was sober enough to have effectively performed his job.

The high profile Christian/Newsom case was thrown out by a special judge who ordered new trials after revelations of Baumgartner’s illegal acts while on the bench. Many other defendants are lining up for a similar attempt to get their convictions overturned. The requests for new trials could overwhelm the Knox County justice system, as Baumgartner had a prolific caseload, being one of three judges in the county who heard felony criminal cases.

“We’re getting pleadings almost daily now from people in the penitentiary filing habeas corpus saying, ‘Let me out too.’ It’s raining over here,” said Knox County District Attorney General Randy Nichols.

Baumgartner got away from all of misdeeds relatively unscathed, leaving the bench to enter rehab and then having a judge give him a sentence which permitted him to erase his felony conviction if he stayed out of trouble. The sentence also allowed Baumgartner to avoid jail and keep his full pension. The judge has since said he would have meted out a tougher sentence had he known the full picture.

Nichols now says that he went to speak to Baumgartner in 2010 because he was concerned about the man’s health, never suspecting narcotics could be involved. Little did Nichols know just how bad his former friend had fallen into his addiction. The judge doctor shopped to get his hands on oxycodone, hydrocodone, Xanax and Valium. When he ran out of doctors he turned to ex-convicts, some of whom he sentenced himself.

One large supplier, AP reports, was a woman who graduated from the drug court that Baumgartner created and presided over. The woman regularly provided both pills and sex to the married judge, sometimes during breaks from court in the judge’s chambers. The woman also discusses instances where Baumgartner paid her for drugs and sex as well as provided bail money after an arrest. He went even further and falsified a drug test after she tested positive while on parole.

Another dealer was sold the judge pills during court breaks as well. He says that he gave Baumgartner extra pills when he had to travel to Nashville where the Christian/Newsom jury was being chosen. 

Prosecutors are currently appealing the decision to retry the four people convicted in the 2007 slayings of the young couple. Whether the appeal will be successful remains to be seen but it’s clear that Baumgartner’s behavior has damaged the criminal justice in Knox County and that damage will take years to repair.

Read: “Investigators: Tenn. judge high on pills in court; had sex, bought drugs on breaks,” by The Associated Press, published at JacksonSun.com.

Earlier:

New Tennessee Campus Crime Report Released

Tennessee Legislature takes on Judicial Misconduct

Governor Haslam Encourages a $6 Million Crime Prevention Plan for Tennessee

The Tennessean reported Friday that Governor Haslam has devised a plan to help prevent crime and reduce the amount of violent crimes in the state of Tennessee. The estimated total cost of the plan is around $6 Million.

Violent crime has become a huge concern for the citizens of Tennessee, most recently in Chattanooga where there has been a definite increase in shootings and other violent crime. Many blame gang activity and various drug activity. As we have witnessed in recent months, the combination of both can prove particularly dangerous.

The plan focuses on three areas: decreasing violent crime, cutting the rate at which criminals commit new crimes, and reducing prescription and methamphetamine abuse.

Here is a rundown of the different aspects of the proposed plan:

• Domestic Violence: One of the aspects of the plan would impose mandatory minimum sentences for domestic violence offenses. A second domestic violence offense would receive a mandatory minimum of 45 days in prison; a third offense would receive a mandatory minimum of 120 days in prison. The proposed legislation dealing with domestic violence stems from a study conducted in October that ranked Tennessee the 5th in the nation in murders of women by men.

• Gang-Related crimes: The plan includes increased penalties for felons involved in gang-related crime, and reducing the rate at which a criminal commits a new crime. Specifically, legislation would target groups of three or more people who commit violent crimes. These groups would receive a harsher penalty for gang-related crime. Further, specific crimes frequently associated with gang activity will receive an increased penalty. These include: aggravated assaults and robberies and aggravated burglaries.

• Pill abuse: The proposed measures involving drug-related crimes include a system for cleaning noxious meth labs, improving the state database that tracks the sale of pseudoephedrine, better training state troopers on drug interdiction, and shift non-violent drug offenders from prison to local drug court programs.

Haslam's plan has its fair share of critics. Some of those against the legislation include defense attorneys who are wary of mandatory minimum sentencing. This is because specific circumstances of a case cannot be taken into account when there is a mandatory minimum sentence in place for a certain crime. Funding is also a big issue. While moving non-violent drug offenders to drug court programs is a great suggestion, many wonder where the funding for that type of movement will originate. Many are worried that the increased penalties for domestic violence offenders will begin to overcrowd the prisons. Prison administrators state the prisons are already filled to capacity with some exceeding capacity.

Even given the criticism, there seems to be overall support for Haslam's plan, particularly for the provisions involving drug-related crimes.

Many of these proposed laws are likely to come up in the upcoming session of the Tennessee Legislature. If passed, they will take effect later this year.