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U.S. v. PRICE

December 17, 2002

UNITED STATES OF AMERICA
V.
GARY PRICE DEFENDANT.



The opinion of the court was delivered by: Thomas Penfield Jackson, United States District Judge.

MEMORANDUM AND ORDER

The defendant Gary Price is currently before the Court for sentencing following his conviction by a jury in July, 2001, for conspiracy to possess and distribute marijuana.

I.

The Court accepts the findings and conclusions presented in the Presentence Investigation Report, as revised February 20, 2002, including the report writer's calculation of the Total Offense Level of 37, Criminal History Category of VI, and thus a Guideline Sentencing Range of 360 months to life imprisonment.

The Court rejects the contention that Price's criminal history category significantly over-represents that history. Price, aged 33 when arrested on this charge, had an extensive criminal record dating from his juvenile years, including the two prior drug distribution convictions as an adult that compel his designation as a career offender under U.S.S.G. § 4B1.1. Moreover, the evidence at trial demonstrated clearly that Price is a career criminal. He was shown to have been a regular among the K Street drug dealers more or less continuously from the early 1990s on.

The Court also rejects any suggestion of an improper "manipulation" of the indictment by the government. In the indictment the grand jury dated the inception of the K Street conspiracy as of 1988. Thus, Price's 1987 felony drug convictions stood as prior offenses, to be counted as such for sentencing purposes if he were convicted, whether he pled to the indictment, were tried alone or with his original two co-defendants, or, as ultimately came to pass, joined as one of many defendants in the principal K Street Crew case. Finally, the Court concludes that all findings as to drug quantities necessary to conviction and sentencing were made by the jury in conjunction with its verdict; any additional findings by the Court would be superfluous in light of Price's status as a career offender.

Price was scheduled to go to trial with two co-defendants, Paul Taylor and Anton Gethers, on June 6, 2000, in a satellite prosecution growing out of the principal K Street Crew case. Plea bargaining had reached a critical stage by mid-May, when the government had extended "wired" offers to all three defendants for stipulated sentences pursuant to Fed.R.Crim.P. 11(e)(1)(C). All three offers could be deemed extraordinarily lenient in light of the statutory mandatory minimum sentence of 10 years required upon conviction, the offer to Price being the most lenient of all: 30 months, with a "boot camp" recommendation and self-surrender privileges. The two co-defendants promptly accepted. Price (or his lawyer) equivocated. At the time, Mr. Zucker knew that Price was de facto and de jure a "career offender" as that term is used in the Sentencing Guidelines; he knew that the plea offer would be withdrawn if the co-defendants both pled guilty, leaving Price as the only holdout; and he knew that the government would then move to join Price to the principal K Street Crew case to avoid two trials of the same complex conspiracy charge, in one of which Price would be the sole defendant.

Price himself knew only that if things went drastically wrong for him, there was a possibility that he could get a life sentence.

In the course of pretrial plea negotiations Price had been forcefully told (in his lawyer's presence) by prosecutors and law enforcement officers that were he to be convicted he would in all probability receive a sentence of 30 years to life. He was urged to become a co-operator, which he declined to do because he professed to know nothing about the K Street Crew's violent activities. Price listened to the government's proffer and watched the videotapes of his drug sales. He then considered his options in private with his attorney, after which he apparently remained unconvinced of his vulnerability to a long prison sentence.

Notwithstanding his extensive prior criminal record, Price had never before been charged with a drug felony in federal court. He had, therefore, never before encountered the complexities of mandatory minimum sentences for federal drug crimes under Title 21 of the U.S. Code, or of the essentially mandatory nature of the Sentencing Guidelines. His prior experience in D.C. Superior Court had taught him to expect minimal sentences, if any, for distribution of small quantities of marijuana, and it was in the context of that experience that Price evaluated his options when offered the chance to plead.

In the circumstances it was absolutely necessary that his lawyer be absolutely certain Price understood not only that 21 U.S.C. § 846, 841(b)(1)(A)(vii) called for a minimum sentence upon conviction often years, but that Price also understood the significance of his "career offender" status and an equally mandatory 30-years-to-life sentence under the Sentencing Guidelines. He also needed to understand as well that an acquittal was as far from assured as the potential sentence upon conviction was certain. Mr. Zucker altogether failed him in that regard.

At a series of status conferences in late May, 2000, as the transcripts make clear, Price twice personally rejected, on the record, two plea offers made him by the government: first, a Fed.R.Crim.P. 11(e)(1)(C) offer of a 30-month sentence, with a recommendation of boot camp and self-surrender, and second, an offer of a 42-month sentence after the first offer had been withdrawn. On May 18, 2000, after the Court itself had urged him to reconsider (as it turns out he did) Price left the courtroom comprehending, for the first time, that his sentence might even be beyond the power of the judge to alter, and that life in ...


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