The opinion of the court was delivered by: SPORKIN
This matter is before the Court on the sentencing of Defendant Alvin Webb. On December 6, 1994, Defendant Webb pled guilty to a one-count Information charging Distribution of 50 Grams or More of Cocaine Base, 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(iii). On February 16, 1995, Defendant Webb's sentencing was postponed, so that he could enter an inpatient drug treatment program. He later absconded from the drug treatment program and was arrested on an outstanding warrant on February 10, 1997. The Court has considered the Presentence Investigation Report (the "PIR") and heard argument on April 1, 1997.
Defendant Webb has one criminal history point, establishing a criminal history category of I. The guideline for Defendant Webb's offense under 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) is found in Section 2D1.1(a)(3) of the Guidelines Manual.
That section provides that offenses involving distribution of at least 50 grams of cocaine base, but less than 150 grams, have a base offense level of 32.
The Court also finds that Defendant Webb is entitled to a 2 level reduction based on the Specific Offense Characteristics, pursuant to U.S.S.G. § 2D1.1(b)(4). He meets the criteria set forth in subdivisions (1)-(5) of U.S.S.G. § 5C1.2 (Limitation of Applicability of Statutory Minimum Sentences in Certain Cases)
and the offense level is level 26 or greater.
After increasing Defendant Webb's Total Offense Level by 2 levels for Obstruction of Justice, pursuant to U.S.S.G. § 3C1.1, the Court finds that Defendant Webb's Total Offense Level is set at 27 before consideration of departure. The Guidelines call for a sentence of 70 - 87 months under such circumstances.
II. Departure From the Guidelines Range
Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described above."
The Court finds that a departure from the Guidelines is warranted in this case. The principal mitigating circumstance here is Defendant Webb's addiction to drugs, specifically crack cocaine. The PIR reports that Defendant Webb "started smoking marijuana while in his mid-teens, consuming the herb twice weekly. . . he commenced smoking cocaine and eventually crack cocaine in 1977." PIR, page 7. The Court has also heard testimony from Detective Perry on February 25, 1995 who essentially identified Defendant Webb as only a low-level street dealer.
Defendant Webb was not a large-scale dealer, but simply a drug addict. His criminal conduct in this case, as well as his abscondence, can be explained by his addiction. Defendant Webb needs drug treatment, not a 70 - 87 month period of incarceration. Indeed, if Defendant Webb were privileged to be a member of a different socio-economic class, he would now be on his way to the Betty Ford Clinic rather than a Federal Correctional Institution.
What is more, the Guidelines range is disproportionate and unduly harsh in this case, and would subject Defendant Webb to constitutional and legal deprivations. Even the Court's imposed sentence--41 months--might be too long. It makes no sense to turn our jails into long term addict housing.
This is another case where the government played a key role in the determination of Defendant Webb's ultimate sentence. Defendant Webb is charged with having distributed 50 grams or more of cocaine base rather than a lesser amount because the undercover officer involved in the case arranged to make an arrest only after purchasing 55.85 grams on February 18, 1994, thereby establishing a high mandatory and/or increasing the minimum guidelines sentence. If the undercover officer had arrested Defendant Webb after making lesser purchases from him on February 2 and 14, 1994, then Defendant Webb would be facing a sentence of less severity. The sentencing court should have the right to take this fact into account. Indeed, the Court would hope that the Sentencing Commission would address the issue of so-called government buys in arriving at an appropriate sentence in such cases--especially as in this case where an addict is an easy prey ...