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UNITED STATES v. SHEPHERD

July 20, 1994

UNITED STATES OF AMERICA
v.
SHARON SHEPHERD a/k/a SHARON ORTEGA



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

 This case demonstrates that, because of the mandatory minimum sentences and the rigid sentencing guidelines, effective control of sentencing -- from time immemorial in common law countries a judicial function -- has effectively slipped, at least in some cases, not only to the realm of the prosecution but even further to that of the police. This development denies due process and is intolerable in our Constitutional system.

 I

 As explained in detail below, the statutory penalties established by Congress and the sentencing guidelines issued by the U.S. Sentencing Commission *fn1" mandate that, because a portion of the drugs sold in this case took the form of cocaine base (popularly known as crack), the defendant must receive for her drug offenses a sentence of 120-135 months. Yet, had all of the drugs sold remained in powder form, the defendant would receive a sentence for these offenses of only 60 months. *fn2" See infra part II. The evidence shows that on both occasions on which defendant was charged with distribution of crack, she was prepared to sell cocaine powder to an undercover law enforcement officer but, upon the officer's insistence that she first convert the powder to crack, she complied by "cooking" the powder in a microwave for a few minutes. The agent then purchased the cocaine in its converted state.

 As described below, the agent's purpose in causing the conversion was to expose the defendant to the more severe crack sentence, that is, to double the time she must spend in the penitentiary for the drug offenses. Nevertheless, the government argued at the sentencing hearing that the Court is required to implement the agent's design by sentencing the defendant based on the crack penalty. The Court concludes that the confluence of the mandatory statutory minimum, the mandatory guidelines, and the actions of the government agent, if implemented, would lead to an unjust result such as to shock the conscience of the Court. *fn3"

 This Court, and many other District Court judges throughout the nation, have often criticized the policy and effect of mandatory minimum sentences established by Congress and the rigid sentencing guidelines issued by the Sentencing Commission as being inimical to fairness and justice. The instant case exemplifies a feature of the guidelines that has not heretofore received much attention: the ability of police officers, in addition to the power of prosecutors, to manipulate these statutes and guidelines so as to achieve ends that may not be consistent with justice.

 II

 The defendant appeared before the Court for sentencing following her conviction on each count of a five-count indictment. *fn4" These charges arose from one sale of 990.3 grams of cocaine powder, two sales of crack aggregating 221.6 grams, and the possession of a pistol during one of the transactions. *fn5" In addition, two alleged sales of drugs predating the aforementioned sales were not charged, but were nevertheless included in the presentence report as "relevant conduct." *fn6"

 Defendant's presentence report, following the method established under the sentencing guidelines, converted both the cocaine powder and crack to their marijuana equivalent, *fn7" and pursuant to U.S.S.G. § 2D1.1(c)(5), this resulted in a calculated offense level of 34. After awarding a three-level reduction for acceptance of responsibility, *fn8" defendant would have been faced with an adjusted offense level of 31. In light of the defendant's lack of any prior criminal history points, *fn9" this would have resulted in a sentence range of 108-135 months. That range would then have to be adjusted to 120-135 months based upon the statutory minimum penalty for distribution of 50 grams or more of crack. See 21 U.S.C. § 841(b)(1)(A).

 By comparison, had the defendant's offense level been calculated as if all the sales had been of cocaine powder, the total of 1,267.438 grams of powder would have resulted in an offense level of only 26. U.S.S.G. § 2D1.1(c)(9). After award of the aforementioned three-level reduction for acceptance of responsibility, the offense level would be reduced to 23. This, in turn, would result, pursuant to the guidelines, in a sentence range of 46-57 months. However, defendant would still be required to serve 60 months based upon the statutory minimum penalty for distribution of 500 grams or more of cocaine powder. See 21 U.S.C. § 841(b)(1)(B).

 III

 The evidence at trial established that all of the charged transactions were negotiated between defendant and undercover Drug Enforcement Agent Mark Ross, and that on each occasion the defendant initially attempted to sell cocaine powder to Ross. With respect to two of the transactions, Ross insisted that defendant convert the drugs into crack prior to the sale, and defendant complied. *fn10" To carry out this plan, Ross waited in his automobile while defendant entered a building and cooked (or had someone else cook) the cocaine in a microwave oven. The evidence showed that it only takes a few minutes to accomplish the cooking.

 As previously indicated, despite the relative ease and speed with which cocaine powder is converted into crack, the sale of crack is treated under the statutes and the sentencing guidelines as far more serious than identical violations involving cocaine powder. Despite its seeming illogic, the distinction has repeatedly been upheld, even as against attacks on grounds of equal protection stemming from alleged racial discrimination. See United States v. Thompson, 27 F.3d 671 (D.C. Cir. 1994) (summarizing cases upholding the disparate treatment of crack and cocaine powder against both Fifth Amendment and Eighth Amendment challenges). *fn11"

 However, in one recent case Judge Oberdorfer of this Court refused to apply the guideline sentences and mandatory statutory minimums for crack on the basis that to do so would violate the defendants' rights under the Eighth Amendment. United States v. Walls, 841 F. Supp. 24, 31 (D.D.C. 1994) (pending on appeal). Defendant here relies almost exclusively on Walls. However, the Court must reject the analogy because the facts here are quite ...


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