Charges of Terrorism in Tennessee Often Fall Apart

A report out of The Tennessean has shown that the state is falling down when it comes to terrorism prosecutions, a charge that is apparently difficult to have stick. The paper found that only nine people in the state have been arrested on terrorism charges since the state’s laws went into effect in 2002. All but one of the defendants either had their charges dismissed or were convicted on lesser charges.

The law in Tennessee makes it a felony to commit any crime intended to “intimidate or coerce” civilians or the government or to disrupt government. The offense is punishable by up to 25 years in prison for a first offense.

The exact reason for why terrorism charges are so hard to make stick is difficult to pin down. It could be many things; mental illness on the part of the defendant will often excuse or reduce the charges. Prosecutors often end up taking into consideration the intent of the defendant making the threats as the words may have been said as a result of extreme emotional distress on their parts and not meant to actually cause harm.

Davidson County recently saw their first such terrorism–related arrest when Amal Abdullahi told a CEVA Logistics co-worker on September 1 that she was ready to die for Allah and that America was full of nonbelievers who should die. Police said she also told the co-worker that nobody pays any attention to her and “she should pick up a gun and shoot all these people.”

The incident was not reported to police until September 6, and CEVA could not be reached for comment. Abdullahi is currently free on $50,000 bond after family was able to post her bail. She is expected to be in court again on October 10 and has retained an attorney

Another terrorism-related arrest that fizzled happened in 2008, when a Middle Tennessee State University student was arrested after, police said, he set fire to his dorm and threatened large-scale devastation on the campus. Rather than admit to terrorism, he pleaded guilty to charges of setting fire to personal property and filing a false report.

On Halloween 2010, a local guy in Chattanooga was arrested on a terrorism charge after he called 911 to say there was an active shooter and several people had been wounded in the fictitious attack. Again, prosecutors dropped the terrorism charge and the man eventually pled guilty to a charge of making a false report.

Source: “TN terrorism charges are rarely upheld,” by Brian Haas, published at WBIR.com.

See Our Related Blog Posts:
U.S. Supreme Court to Rule on DUI Forced Blood Draws
Sixth Circuit Rules that Park Ranger Was Right to Detain Man Carrying AK-47

Study Reveals Tennessee Prisoners Serve Short Sentences

by Lee Davis

A recent study by the Pew Charitable Trusts Public Safety Performance Project revealed that Tennessee criminals serve the fourth lowest amount of time in prison compared to other states. The report, which was meant to measure the average length of stay for people sent to prison in 35 states, found that Tennessee’s short stays were behind only those in South Dakota, Illinois and Kentucky.

Those incarcerated in Tennessee could expect an average prison term of 1.9 years, 6 percent less than what they could have expected in 1990 and much lower than the national average of just under three years. Georgia saw average prison stays of 3.2 years while neighboring Alabama had 2.9.

The reason for the reduced time in Tennessee is a complicated one as prison sentences are affected by multiple factors, including legislators, who write the rules, judges, who have discretion in sentencing offenders to prison, and the state’s parole board, who decides whether an offender can leave prison early.

Tennessee began revising sentencing guidelines in the 1980s to combat prison overcrowding. Those reforms included lowering the minimum time prisoners must serve when convicted, meaning some offenders serve as little as 20 percent of their sentence. Recently, under pressure to appear tough on crime, legislators have increased those percentages for violent crimes. The legislature also enacted an array of alternative punishments and presumptions regarding people who should get probation, something other states have been slow to adopt.

The worry about the attention caused by the study is that legislators will feel the need to spring into action, creating harsh sentences for the sake of being harsh. There are indications the study already has begun a conversation about whether Tennessee should be stricter. State Senator Mae Beaver said that the issue is “certainly something we need to address and find out why it’s happening.” Beavers, the chairwoman of the Senate’s Judiciary Committee said, “I would certainly like to be tougher on crime.”

The fact is, when you look into the numbers and get over the initial shock of thinking the state is going easy on criminals, you realize that isn’t what the study actually demonstrates. What actually happened was that several decades ago legislators realized that lengthy incarceration is not always the best deterrence to crime, something backed up by the study. A key finding of the research is that not all crime is equal, but prison times seldom take that into consideration. Increased prison time and cost were up across the country almost identically for both violent and non-violent offenders. But the study also reveals that releasing non-violent offenders earlier did not result in lowered public safety, even when non-violent offenders committed similar non-violent crimes.

Though some may try to seek an easy solution and rush to have criminals spend more time in jail, it won’t solve the larger problem of crime in the state and will only end up costing us all huge amounts of money to keep them there. Spending large amounts of taxpayer money to keep non-violent offenders in prison shows a poor return on investment and has negligible impact on public safety. A sad anecdote that should give those pushing the state to be tougher on crime comes out of California where it was recently announced that the state spends more money on its prisons than on colleges and universities.

The full Pew report is available online here.

Read: “TN prisoners serve less time than those in most states,” by Brian Haas, published at Tennessean.com.

See Our Related Blog Posts:

Lying to Probation Officer is a Federal Crime

New law allows some Tennessee offenders to have their records expunged

151 New Laws in Tennessee beginning July 1, 2112

by Lee Davis

151 New Tennessee Laws going into effect July 1, 2012.
There are new laws going into effect in Tennessee in a few days that range from expungement of old convictions to new obligations on the sex offense registry for statutory rape convictions. Listed below are all changes to Tennessee criminal law.
Probation and Parole - As enacted, permits private probation providers who meet certain qualifications and contract with the department of correction to supervise Class E felony offenders who are granted probation. - Amends TCA Title 40.
Sentencing - As enacted, establishes enhanced punishment for crimes of force or violence committed while acting in concert with two or more other persons. - Amends TCA Title 39 and Title 40.
Sentencing - As enacted, increases the punishment for unlawful possession of firearm by person with previous felony conviction. - Amends TCA Title 39 and Title 40.
Probation and Parole - As enacted, transfers from board of probation and parole to department of correction certain functions relating to probation and parole services and the community correction grant program. - Amends TCA Title 4; Title 38; Title 39; Title 40; Title 41 and Title 55.
Immigration - As enacted, clarifies that a tax form, as such term is used in the part, means any form issued by the United States internal revenue service. - Amends TCA Title 50, Chapter 1, Part 7.
Arrests - As enacted, enacts the "Ricky Otts Act" which requires an officer to arrest drivers involved in accidents resulting in serious bodily injury or death when such drivers lack a valid driver license and evidence of financial responsibility; prohibits the issuance of a citation in lieu of arrest in such circumstances. - Amends TCA Title 39; Title 40; Title 55, Chapter 10; Title 55, Chapter 12; Title 55, Chapter 50 and Title 55, Chapter 8.
Criminal Offenses - As enacted, criminalizes possession, use, transfer or installation of software designed to manipulate retail records of transactions for evading payment of sales tax to the state. Amends TCA Title 38; Title 39; Title 40 and Title 67.

Sexual Offenders - As enacted, adds the offense of promoting prostitution to the list of sexual offenses requiring registration under the sex offender registry and adds second offense promoting prostitution to the list of violent sexual offenses. - Amends TCA Title 40, Chapter 39, Part 2.
Sentencing - As enacted, makes elected and appointed public officials ineligible for diversion for criminal offenses committed in their official capacity or that involve the duties of their offices. - Amends TCA Title 39 and Title 40.
Judges and Chancellors - As enacted, terminates the court of the judiciary and replaces it with a 16-person board of judicial conduct; revises provisions governing such a board. - Amends TCA Title 4, Chapter 29 and Title 17, Chapter 5.
Criminal Offenses - As enacted, expands the drugs whose production, manufacture, distribution, sale or possession would be a crime under the present law offense regarding synthetic derivatives or analogues of methcathinone. - Amends TCA Title 39.
Criminal Procedure - As enacted, expands definition of "uses" and "conducts" to include "transport" and "conceal" for purposes of the money laundering criminal offenses. - Amends TCA Title 39 and Title 40 relative to criminal offenses and criminal procedure.
Criminal Procedure - As enacted, deletes provision prohibiting district attorney from applying to judge for a wiretap order in marijuana cases in which the amount is less than 700 pounds. - Amends TCA Title 39, Chapter 17.
Law Enforcement - As enacted, requires that officers who knowingly provide POST with false or misleading information concerning histories be decertified, removed from office, and be deemed ineligible to apply for a new law enforcement position in Tennessee; requires denial of application for POST certification of an applicant who knowingly provides POST with false or misleading information. - Amends TCA Title 4; Title 8; Title 38; Title 39 and Title 40.
Sexual Offenses - As enacted, clarifies that law permits prosecution and conviction for displaying sexual activity to a minor by electronic communication regardless of whether the victim is a minor or an undercover police officer posing as a minor. - Amends TCA Title 39.
Sexual Offenders - As enacted, provides that the conveyance of personal property of a sexual offender used to violate a residential and work restriction of the sex offender registry is subject to forfeiture if the victim was a minor; specifies under the provisions regarding forfeiture of property used in the commission of a sexual offense that property is subject to "judicial forfeiture" instead of "administrative forfeiture". - Amends TCA Title 39, Chapter 13, Part 5.
Sexual Offenders - As enacted, authorizes judge, after consideration of facts and circumstances surrounding the case, to require a person convicted of statutory rape for the first time to register as a sexual offender on the sexual offender and violent sexual offender registry. - Amends TCA Title 39, Chapter 13, Part 5 and Title 40, Chapter 39, Part 2.
Criminal Offenses - As enacted, revises the punishment for the offenses of public indecency and indecent exposure and revises the definition of "public place" with regard to the offense of public indecency. - Amends TCA Title 39 and Title 40.
Criminal Offenses - As enacted, creates defense in prosecution of prostitution where a person is a victim of involuntary labor servitude, sexual servitude, or where the person is a victim as defined under the federal Trafficking Victims Protection Act. - Amends TCA Title 39 and Title 40.
DUI Offenses - As eancted, expands present law to provide that it is not a defense to a violation of the DUI statute that a person is or was lawfully entitled to use an intoxicant, marijuana, controlled substance, or other drug. - Amends TCA Title 55, Chapter 10, Part 4.
Criminal Offenses - As enacted, creates Class A misdemeanor offense of knowingly or recklessly maiming or harming a service animal and the Class C misdemeanor of interfering with a service dog in the performance of its duties and provides for restitution to the handler of the dog. - Amends TCA Title 39, Chapter 14, Part 2.
DUI Offenses - As enacted, increases penalty for violation of DUI statute when child under 18 is in the vehicle to require that the mandatory minimum 30-day sentence for this offense be served consecutive to any sentence received for a violation of specified other alcohol-related offenses. - Amends TCA Title 55, Chapter 10, Part 4.
Criminal Procedure - As enacted, provides that as part of a defendant's alternative sentencing for a violation of domestic
assault, the sentencing judge may direct the defendant to complete a
drug or alcohol treatment program or available counseling programs that address violence and control issues including, but not limited to, a batterer's intervention program that has been certified by the domestic violence state coordinating council. - Amends TCA Title 39 and Title 40.
Sentencing - As enacted, requires that a person convicted of committing a dangerous felony involving a firearm who is subsequently convicted of the same serve a minimum of 15 years imprisonment at 100 percent. - Amends TCA Title 39, Chapter 17 and Title 40.
Criminal Procedure - As enacted, clarifies that a defendant cannot get records expunged if convicted of an offense other than the charged offense or convicted of one offense in a multi-count indictment, including lesser included offenses. - Amends TCA Title 40, Chapter 32, Part 1.
Criminal Offenses - As enacted, creates a Class A misdemeanor for an individual to either: knowingly prevent another individual from placing a telephone call to 911 or from requesting assistance in an emergency from a law enforcement agency, medical facility, or other
agency or entity the primary purpose of which is to provide for the safety of individuals; or intentionally render unusable a telephone that would otherwise be used by another individual to place a telephone call to 911 or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity, the primary purpose of which is to provide for the safety of individuals. - Amends TCA Title 7; Title 39; Title 40 and Title 65.
Criminal Offenses - As enacted, revises definitions of fetus as victim for criminal homicide and assaults to remove viability requirement and include an embryo and remove reference to victim being pregnant; revises legislative intent statement. - Amends TCA Title 39, Chapter 13. Abortion - As enacted, enacts the "Life Defense Act of 2012," which requires that physicians performing abortions have admitting privileges in hospital within certain area of where abortion performed. - Amends TCA Title 37, Chapter 10, Part 3; Title 39, Chapter 15, Part 2 and Title 68.
Bail, Bail Bonds - As enacted, declares a defendant who is unlawfully present in the United States and has committed certain traffic violations may be deemed a risk of flight for bail purposes; authorizes clerks to set bail for such defendants at a higher amount than normally permitted. - Amends TCA Title 39; Title 40 and Title 55.
Criminal Procedure - As enacted, provides that a person may be prosecuted, tried and punished for producing obscene material, sexual exploitation of a minor, aggravated sexual exploitation of a minor or especially aggravated sexual exploitation of a minor, no later than 25 years from the date the child becomes 18 years of age. - Amends TCA Title 40, Chapter 2.
Sexual Offenses - As enacted, enacts "Kimberlee's Law," which requires that persons convicted of aggravated rape serve 100 percent of sentence. - Amends TCA Title 39, Chapter 13, Part 5 and Title 40, Chapter 35.
Criminal Offenses - As enacted, enhances the penalty for involuntary labor servitude where the victim was under age 13 and adds means by which the crime is possible. - Amends TCA Title 39, Chapter 13 and Title 40.
Criminal Offenses - As enacted, clarifies that the offense of trafficking a person for a commercial sex act is Class A felony if the victim is a child under 15 years of age; adds that the offense is a Class A felony if the offense occurs on the grounds or facilities or within 1,000 feet of a public or private school, secondary school, preschool, child care agency, public library, recreational center or public park; adds Class C felony of advertising commercial sexual abuse of a minor; clarifies certain sex offender registry provisions.
Welfare - As enacted, requires the department of human services to develop a plan to implement a program of suspicion-based drug testing for each applicant who is otherwise eligible for temporary assistance for needy families (TANF). - Amends TCA Title 4, Chapter 3, Part 12; Title 4, Chapter 3, Part 18 and Title 71.
Criminal Offenses - As enacted, creates new Class A felony theft provision if the amount stolen is 250,000 or more; allows state to aggregate value of property stolen in certain circumstances; and changes venue for all offenses graded by value. - Amends TCA Title
39, Chapter 14, Part 1.
Animal Cruelty and Abuse - As enacted, creates Class E felony of aggravated cruelty to livestock, which is intentionally engaging in specified conduct in a depraved and sadistic manner that results in serious bodily injury or death to the animal and is done without lawful
or legitimate purpose. - Amends TCA Title 39, Chapter 14, Part 2.
DUI Offenses - As enacted, authorizes judge to order the use of an ignition interlock device for any person granted a restricted driver license; order may be with or without geographical restrictions, but if the device is ordered, then it must remain on the vehicle during the entire period of the restricted license. - Amends TCA Title 55, Chapter 10, Part 4.
Criminal Offenses - As enacted, includes the commission of or attempt to commit a criminal gang offense within the definition of racketeering activity and enterprise for purposes of the Racketeer and Corrupt Organization Act (RICO). - Amends TCA Title 39, Chapter 12, Part 2.
Criminal Offenses - As enacted, makes it a Class A misdemeanor for a person 18 years of age or older to knowingly promote or organize a gathering of two or more minors in a public place with the intent to provide a location for such minors to engage in public indecency; any personal property used in the commission of a violation of this offense would, upon conviction, be subject to judicial forfeiture. - Amends TCA Title 39; Title 40; Title 67; Title 68 and Title 71.
Criminal Procedure - As enacted, authorizes persons to petition for expungement of records of conviction for certain non-violent, non-sexual misdemeanors and Class E felonies that were committed on or after November 1, 1989.
Davis & Hoss, PC attorneys will be posting new developments on these legislative changes as they occur.

6th Circuit Appeals Court Upholds Child Pornographer’s Life Sentence

by Lee Davis

• UNITED STATES v. STEPHEN LYNN HAMMONDS

The U.S. Court of Appeals for the Sixth Circuit upheld the life sentence of a Jackson, Tennessee man who pleaded guilty to the sexual exploitation of minors and in trafficking child pornography. Stephen Lynn Hammonds, 45, argued on appeal that his 2010 sentence by U.S. District Court Judge Bernice Donald of Memphis was unreasonable and excessive.

Hammonds argued that mandatory guidelines imposed a sentence that was too harsh for the crime that was committed. Hammonds was originally arrested as part of a larger sting operation in 2009 by the Memphis office of the FBI. 

According to court records, Hammonds told FBI agents (posing as children) that he wanted to meet and have sex with them and that he had done so in the past on multiple occasions with his own teenage stepdaughter. Agents with a warrant searched his home and found dozens of files containing child pornography. He then pled guilty to federal charges six months later. 

This wasn’t Hammonds’ first time in trouble with the law. In 1998 he was arrested on charges of statutory rape and incest with a young girl between the ages of 13 and 15. This previous convicted served to enhance the guidelines for his federal punishment and led to his life imprisonment. 

In his appeal he pointed to a psychologist’s report saying that he was only a medium-low risk of reoffending and he had accepted responsibility for his actions and even helped agents find and convict another child pornographer. 

The government argued that Hammonds had bragged about his earlier conviction for incest and used it while looking for new targets of abuse. Judge Donald declared Hammonds to be “particularly dangerous” and deemed him beyond the point of rehabilitation. She said that he needed to be permanently separated from society and the children he might place at risk.

Writing for a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, Judge Julia Gibbons said Judge Donald did not abuse her discretion in doling out the tough sentence. “The district court did consider the mitigating factors in the case,” Gibbons said, “but found, appropriately and within its discretion, that concerns about the seriousness of the crime and the need to protect the public were paramount.”


Here is the full opinion of the court: United States v. Stephen Hammonds.

Read: “Federal appeals court upholds Tennessee child porn trafficker’s life sentence,” by Lawrence Buser, published at CommercialAppeal.com.

Earlier:

U.S. Supreme Court Permits Strip Searches of Any Inmate No Matter the Crime

Supreme Court decides two important cases affecting attorneys obligations to clients

Life without the possibility of parole for a 14 year old?

The Supreme Court will take up the Eighth Amendment again this term, specifically to rule on whether the prohibition on “cruel and unusual punishment” allows the imposition of a sentence of life without the possibility of parole for a fourteen year old convicted of homicide.

            Similar issues have already been addressed by the Supreme Court in two cases, Roper v. Simmons and Graham v. Florida.  In Roper, the Court abolished the death penalty for juveniles and in Graham the Court held that a sentence of life without parole cannot be imposed on a juvenile for the conviction of a non-homicide offense.  Inherent in the decision of those cases was the idea that juveniles are both more apt to be rehabilitated and morally less culpable than adults.

            The Current Case (Miller v. Alabama, Jackson v. Hobbs) will probably revolve around similar arguments and is likely to be buttressed by emerging scientific evidence related to brain development.  Both of the Petitioner’s briefs cite this literature in making the argument that young adolescents are particularly prone to impulsive behavior and negative peer pressure.  The petitioners also cite many state and federal laws that recognize the immaturity and impulsivity of young adolescents. 

Tennessee has many such examples of the special legal status of adolescents.  A minor cannot apply for a marriage license without a parent’s permission.  T.C.A. §36-3-106.  A child under the age of 15 must wear a helmet when riding a bicycle. T.C.A. §55-52-105.  Children younger than 16 have a weekday curfew of 10:00 and a weekend curfew of 11:00.  T.C.A. §39-17-1702. 

The two states involved in these cases (Arkansas and Alabama) have mandatory life sentences without the possibility of parole for first degree murder.  The importance of this is that when a child is tried as an adult, their age is not taken into account either at trial or at sentencing.  In Tennessee, there are three options for punishment for a first degree murder conviction; death, life imprisonment, or life imprisonment without the possibility of parole.  The sentence is imposed at a sentencing hearing and an explicit factor considered is “the youth … of the defendant at the time of the crime.”  T.C.A. 39-13-204.

The imposition of mandatory sentences is problematic in the typical case but even more so when the convicted is a young adolescent.  If any determination calls out for individualized attention it is the sentencing of minor.  It will be interesting to see what the Supreme Court thinks, oral arguments are scheduled for March 20.

For more of the subject (including Amicus briefs):see Miller v. Alabama and Jackson v. Hobbs.  Also, to see a map illustrating state by state the number of juveniles are currently serving a life sentence without the possibility of parole, look here.

U.S. v. Cory Kent Traxler: Sentencing Guidelines Part II

• UNITED STATES V. CORY KENT TRAXLER

In another case concerning Sentencing Guidelines before the 6^th Circuit Court of Appeals, Cory Kent Traxler pled guilty to being a felon in possession of a firearm. A probation officer concluded that Traxler’s base offense level was a 33 due to his history as a career criminal. Three levels were subtracted due to Traxler’s having taken responsibility for his crimes resulting in a total offense level of 30.

Based on his offense level and a criminal history category of V, Traxler’s guideline range was 151 to 188 months of in prison. Traxler, however, was subject to a mandatory minimum sentence of 180 months, making his actual range between 180 and 188 months of imprisonment.

The District Court granted the government’s motion to depart downward from the statutory minimum based on Traxler’s substantial assistance and the court sentenced Traxler to 60 months of incarceration followed by three years of supervised release.

On appeal the government now argues that the district court erred by considering factors other than Traxler’s substantial assistance when deciding to depart downward from the sentencing guidelines.

The 6^th Circuit wrote that a district court’s decision to depart downward from a statutory minimum sentence “must be based solely upon the substantial assistance rendered by the defendant.” Before there can be a remand for re-sentencing there must be an indication of error in the record. Such an error exists in this case. The worry, according to the 6^th Circuit, is that the District Court based its decision not solely on the motion by the government, but also on a motion by Traxler asking for a downward variance in his sentence. The District Court was not clear regarding exactly what criteria it weighed in making its decision and it appears that the district court relied on non-substantial assistance factors when making its decision.

The 6^th Circuit ultimately held that because the District Court failed to adequately explain its decision, the sentence was deemed to be procedurally unreasonable and the case was remanded for re-sentencing.

Earlier:

Supreme Court Says Death Row Inmate Gets Second Chance After Attorneys’ Abandonment

Supreme Court Throws Out Murder Conviction After Prosecutors Fail to Turn Over Damaging Confession

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.

6th Circuit Denies Retroactivity of the Fair Sentencing Act

• United States v. Marrero

The 6th Circuit decided Wednesday that the Fair Sentencing Act of 2010 is not retroactive to the date when a defendant commits an offense. The FSA was enacted to alleviate some of the disparities in sentencing for offenses involving crack cocaine and offenses involving powder cocaine. Specifically, the FSA raises the amounts of crack cocaine required to trigger a mandatory minimum sentence.


Marrero was convicted of possessing 27.25 grams of crack cocaine. He was sentenced on August 11, 2008 to 360 months (30 years) of incarceration. Marrero appealed and argued that the FSA, enacted on August 3, 2010, should apply retroactively. Without FSA amended guidelines, Marrero faced an incarceration range from a 10-year mandatory minimum sentence to a maximum life sentence. With FSA guidelines, Marrero faced no mandatory minimum and a maximum of 30 years.


The 6th circuit refused to apply the FSA retroactively to offence date stating:

"In United States v. Carradine 621 F.3d 575 (6th Cir. 2010), cert. denied, 131 S.Ct. 1706 (2011), this court determined that the Fair Sentencing Act's penalty provisions do not apply to offenses committed prior to their enactment, id at 580 ("The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time [the defendant] committed the crime in question.") Because Carradine is a prior published opinion of this court, we are bound by its pronouncement that the Fair Sentencing Act has no bearing on Marrero's case."

Because Marrero committed his offense prior to the enactment of the FSA, the 6th circuit denied his request for resentencing.


We discussed Chief Judge Curtis Collier's ruling in US v. Toney Robinson, Docket No. 1:10-CR-66 in February from the Eastern District of TN involving whether the FSA applied retroactively to those offenders who committed offenses before enactment, but were sentenced after enactment, here is the post. Today's opinion in Marrero clears up the issue of retroactivity of FSA to offence date but leaves open still other issues.  Read Judge Collier's opinion above for a full discussion.

Supreme Court Finds Federal Minimum Sentences for Cocaine Apply to All Forms of Base Cocaine

• DEPIERRE v. UNITED STATES

The Supreme Court decided (9-0) yesterday that the statutory minimum guidelines for cocaine base include all forms of cocaine base, not just what is known as crack cocaine. 

(Photo courtesy of Meli.)

Federal law sets a minimum 10-year sentence for persons convicted of certain drug offenses, 21 U. S. C. §841(a), including those involving 50 grams or more of  “a mixture or substance . . . which contains cocaine base,” §841(b)(1)(A)(iii), and a minimum 5-year sentence for offenses  involving  5  grams  or  more  of  the  same, §841(b)(1)(B)(iii).

We hold that the term “cocaine base” as used in §841(b)(1) means not  just “crack  cocaine,” but cocaine in its chemically basic form.  

In this case, out of the First Circuit, DePierre attempted to distinguish crack cocaine from other types of base cocaine and argued that the federal minimum guidelines only applied to crack. The Supreme Court rejected that argument finding that the mandatory minimums apply to all forms of base cocaine.


The decision does not mean that powder cocaine is covered by these mandatory guidelines as the powder form of cocaine was not contemplated to be included by congress and is a different chemical form of cocaine from base cocaine.