The opinion of the court was delivered by: James Robertson United States District Judge
A jury convicted Anthony C. Harris and Antonio D. Roundtree on October 18, 2004 of unlawful possession with intent to distribute 5 grams or more of cocaine base. That verdict made mandatory the imposition of a sentence of not less than 5 years. 21 U.S.C. § 841(b)(1)(B)(iii). On February 18, 2005 I sentenced Harris to 96 months incarceration, 5 years supervised release, and a $1000 fine, and Roundtree to 60 months incarceration, 5 years supervised release, and a $1000 fine. The reasons for those sentences are set forth below.
Guidelines and Mandatory Sentences
After United States v. Booker, 125 S.Ct. 738 (U.S. 2005), the Sentencing Guidelines are "effectively advisory." Id. at 757. A sentencing court must consider Guidelines ranges, but may "tailor the sentence in light of other statutory concerns as well, see § 3553(a)(Supp. 2004)." Id.
The presentence report writer accepted the prosecution theory that Harris and Roundtree were both responsible for the entire amount of drugs recovered from a plastic bag that had been stashed by an unidentified third person on a street sign near the scene of the drug dealing. Those drugs, in 101 ziplock bags, weighed 38 grams. The Offense Level for at least 35 but less than 50 grams of crack cocaine, U.S.S.G. § 2D1.1(c)(5), is 30. As I believe virtually every federal judge has done since Blakely v. Washington, 124 S. Ct 2531 (2004), however, I found the applicable Offense Level to be 26, § 2D1.1(c)(7), because all that was charged, and all the jury found proven beyond a reasonable doubt, was "more than 5 grams."*fn1
While the Offense Level was the same for both defendants, their Criminal Histories were quite different. Harris, who is 25 years old, had accumulated 15 convictions before this one. He started with operating an unregistered motor vehicle at age 17 and proceeded to disorderly conduct, unlawful entry, escape, simple possession of cocaine, and theft. He had 14 criminal history points and a Criminal History Category of VI, with a resulting Guidelines range (26/VI) of 120-150 months. Roundtree, who is 20 years old, had one conviction three years ago, for threat to injure and theft 2nd degree, and he committed the instant offense while on probation, yielding a Criminal History Category of II and a Guidelines range (26/II) of 70-87 months.
A court is required by 18 U.S.C. § 3553 to consider "the nature and circumstances of the offense and the history and characteristics of the defendant" and to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2)." Those purposes are
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. Nature and circumstances of the offense
Roundtree and Harris were bottom-rung street sellers: They were observed serving customers in a line of cars, exchanging ziplock bags of drugs for currency. Officer Green's testimony was that they were walking back and forth to and from a third man. Officer Stevens said he saw Roundtree repeatedly go to another man and exchange something he could not see. Officer Teixeira, who had the clearest view through 10 x 50 binoculars, said he saw three males, one on the curb, the other two flagging down cars. He saw Harris approaching cars, taking money, handing money to the man on the curb, getting "product" and delivering it to the cars. He saw Roundtree doing the same thing, multiple times. Neither Harris nor Roundtree had drugs or money on them when they were arrested. The man on the curb was never identified, apprehended or charged.
Each defendant was responsible for 5 grams of crack for purposes of the mandatory minimum, but it is at least questionable whether either of them actually handled as much as 5 grams.*fn2 No substance catalogued under the Guidelines is more weight-sensitive than crack, of course: from 5 to 20 grams is Offense Level 26, but one gram less, 4 to 5 grams, is Level 24, and one gram less than that, 3 to 4 grams, is Level 22. Harris's sentence was 96 months, two years less than the low end of the 120-150 month range established by the Guidelines. If what he actually possessed and sold was between 4 and 5 grams, his Guidelines range would have been 100-125 months (24/VI), and if he actually possessed and sold 3.8 grams (10 vehicles x 0.38 grams),*fn3 his Guidelines range would have been ...