Wednesday, February 22, 2006

20-year Variance from Career Offender Guideline Not Reasonable

US v. Moreland: Moreland was convicted by a jury of two counts of possession of cocaine base with intent to distribute.* The PSR correctly showed that Moreland was a career offender and subject to an advisory Guideline range of 360 months to life in prison. The Government also filed a section 851 information, triggering a 10-year mandatory minimum. Nonetheless, the district court varied from that range and imposed a sentence of 120 months -- 20 years less than the advisory Guideline minimum and equal to the statutory mandatory minimum.

Moreland's two prior convictions (which triggered the career offender sentence) were (1) for delivering a marijuana cigarette to a prison inmate and (2) possessing with intent to distribute 6.92 grams of crack. Examining the "nature and circumstances of the offense and . . . the defendant," the district court concluded that Moreland's offenses of conviction involved a relatively small amount of crack (7.85g), did not involve violence, and did not involve a firearm. Looking at the prior convictions, the district court came to the same conclusion. The district court concluded that Moreland "has the ability and potential to become a productive member of society." Turning to the 3553(a)(2) factors, the district court concluded that the career offender classification swept too broadly and that Moreland's offenses "hardly constitute the type and pattern of offenses that would indicate that Mr. Moreland has made a career out of drug trafficking."

The Fourth Circuit reversed, employing a two-step analysis: (1) was it reasonable for the district court to vary from the advisory Guideline range? and (2) if so, was the amount of the variance reasonable?

To the first question, the court answered "yes," a variance in this case was reasonable (the Government apparently admitted as much at oral argument).

To the second question, however, the court answered "no." The court noted that "to the extent that the sentence imposed by the district court rests on a rejection of congressional policy with respect to repeat drug offenders, it is subject to reversal on that basis alone." However, even assuming that no "outright rejection occurred," the variance was still too large to be reasonable. While the court admitted that Moreland appears to be a small-time dealer, he is "nonetheless, a repeat drug offender who appears to have come to West Virginia for the sole purpose of selling cocaine base." The court also discounted Moreland's "desultory pursuit of his education and his spotty employment history."

The court concludes,
[i]f Moreland's circumstances are so compelling as to warrant a two-thirds reduction from the bottom of the advisory guideline range, it is difficult to imagine any meaningful limit on the discretion of the district court.
The court vacated Moreland's sentence and remanded the case for the imposition sentence of "no less than 20 years imprisonment."

* Moreland also made three challenges to his conviction - (1) that police lacked consent to enter the home in which he was arrested, (2) that the district court erred in admitted the drugs bought and recovered from Moreland because of chain of custody issues, and (3) that the district court should have struck the testimony of the Government's expert witness as to drug type and weight - all of which were quickly rejected by the court.

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