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April 29, 1993


The opinion of the court was delivered by: HAROLD H. GREENE


 The defendant appeared before the Court for sentencing on April 7, 1993, following his conviction of possession with intent to distribute cocaine base and heroin. Inasmuch as under the guidelines issued by the U.S. Sentencing Commission the minimum term of incarceration to which the Court could sentence the defendant is thirty years, *fn1" even though the amount of drugs he possessed was less than eight grams, the Court considered the issue of the constitutional validity of a mandated sentence so grossly out of proportion to the seriousness of the offenses.

 The Supreme Court has upheld the validity of the 1984 sentencing law and the guidelines issued by the Sentencing Commission issued pursuant thereto against a separation of powers attack, *fn2" and the Court of Appeals has rejected due process challenges to the sentencing guidelines' restrictions on the sentencing court's ability to consider certain aspects of a defendant's situation. *fn3" This Court is of course bound by these holdings. However, the appellate decisions concerned the validity of the statute and the guidelines on their face. What this Court must consider now is the constitutionality of the guidelines as applied to the particular fact situation before it in the instant case. For the reasons stated below, it is the judgment of this Court that, as applied, the guidelines do not pass constitutional muster.


 Cordell Spencer was arrested on July 3, 1992 in the course of the execution by the police of a search warrant at Apartment 12 at 640 Park Road, N.W., in the District of Columbia. *fn4" Prior to the execution of the warrant Spencer had been observed inside the apartment from which the police recovered 6.69 grams of cocaine base and the 0.87 grams of heroin. *fn5" He was also holding a key to the front door of this unit when he was stopped by the police. Following a mistrial resulting from a hung jury, *fn6" Spencer was tried again and convicted of these two drug offenses. The only issue before the Court at this time is whether the mandated sentence is consistent with the Constitution.


 According to § 4B1.1 of the guidelines promulgated by the Sentencing Commission, a defendant is classified as a career offender if the following three conditions are satisfied: (1) he was at least eighteen years old at the time of the offense; (2) the offense is a felony, constituting either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions constituting crimes of violence or controlled substance offenses. If an individual qualifies as a career offender, he must, under the guidelines, be placed in criminal history category VI and his base offense level must be determined by the table contained in § 4B1.1. A purely mechanical check of the table reveals that the Court is required to sentence one in the defendant's situation to incarceration for a minimum of thirty years. *fn7"

 There is no question that, technically, this defendant qualifies as a career offender as the Sentencing Commission has defined that term. He was over eighteen years of age at the time of these offenses; the current convictions are for narcotics felonies; and he has three prior felony convictions also involving controlled substances. Simple enough, by the lights of the Commission. A little further scrutiny reveals, however, that the real situation is not quite that clear-cut; more particularly, it appears that from the point of view of any realistic assessment of what constitutes a career offender as that term would normally be understood -- as distinguished from the Commission's tables and computations -- this defendant's criminal background does not warrant the blanket thirty year sentence required for defendants who meet the criteria set forth in § 4B1.1 of the guidelines.

 As already noted, the total weight of the drugs Spencer possessed at the time of his arrest was approximately seven and one-half grams -- hardly a large amount when viewed in the context of the significant transactions occurring every day in the drug markets of Miami, New York, San Diego, and other cities, including the District of Columbia. This Court also finds that Spencer's prior offenses, which were also relatively unaggravated, do not indelibly stamp him as a career offender. In 1986, at the age of nineteen, the defendant was convicted in D.C. Superior Court for distribution of heroin and given a sentence of two years probation. That same year, he was also convicted of attempted distribution of heroin, for which he was sentenced to a maximum of three years under the Youth Rehabilitation Act; In 1991, he was convicted of the even more attenuated charge of attempted possession with intent to distribute heroin, for which he received a sentence of eighteen months probation. *fn8" This Court, and the parties, have been unsuccessful in their efforts to learn the weight of the drugs involved in these cases. However, in view of the sentences imposed, the amounts must have been small. Indeed, at the sentencing hearing, the Assistant U.S. Attorney conceded as much.

 On what basis, then, do we arrive at a thirty-year sentence without even the possibility of parole? The statutory mandatory minimum for possession with intent to distribute over five grams of cocaine base is incarceration for a period of five years. See 21 U.S.C. § 841(b)(1)(B). That law as enacted by the Congress sets a mandatory minimum ten-year sentence for individuals who have "one or more prior convictions" for felonies involving controlled substances. Id. In other words, Congress has concluded that ten years may be a sufficient punishment in a substantial number of cases. However, as noted above, the guidelines issued by the Sentencing Commission go far beyond that: they automatically direct federal courts to impose a thirty-year sentence where Congress has seen fit only to prescribe a mandatory minimum of ten years. *fn9" This Court's determination that the additional twenty years mandated not by the Congress, but by the Commission, would produce an unjust sentence, necessitated an examination of the legality of § 4B1.1.


 Before discussing the legal basis for the Court's conclusion that the thirty-year sentence prescribed by the Sentencing Commission renders the Commission's directive unconstitutional as applied, it is important to clarify the grounds upon which the Court is not resting this decision.

 First. The Court rejects the argument advanced by the defense that the career offender provision of the sentencing guidelines violates the Double Jeopardy Clause of the Fifth Amendment. Under the guidelines, a career offender's base offense level is determined by reference to the statutory maximum he or she is facing. Defense counsel claims that in making this calculation, the relevant statutory maximum period of incarceration should be determined without reference to the statutory enhancements triggered by a defendant's prior convictions. *fn10" If the enhancements contained in the statute are applied, the defense argues, defendant's prior convictions are "double-counted." Whatever may be the merit of this argument in the abstract, it was ...

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