Remand Even With Below Guidelines Sentence

Carl Morris pled guilty to one count of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Although the district court sentenced him below the guidelines range, it did so without addressing his principal arguments in mitigation. Because the court did not consider Morris’ arguments in deciding his sentence, the case was remanded for re-sentencing even though the District Judge gave the defendant a below the Guidelines sentence.

Morris urged the court to apply a 1:1 crack-to-powder cocaine ratio for his offense because the guidelines disparity was the result of political compromise rather than for any reason founded in medical, chemical, physiological, or other scientific or social science evidence. If the court employed a 1:1 ratio, Morris calculated that his guidelines range would drop to 21 to 27 months.

Morris noted that, if the court removed the counterfeit drugs from the equation, his advisory sentencing range would be 15 to 21 months. In short, the combination of a large quantity of counterfeit drugs, an amount that was ordered at the government’s direction, together with the crack/powder sentencing disparity, dramatically increased the advisory guidelines range from 15-to-21 months to 57-to-71 months.

Morris argued that these factors along with his recent efforts to rehabilitate himself warranted a sentence of 18 months imprisonment. At the sentencing hearing, the government agreed that a sentence within the 57-to-71 month advisory guidelines range might not be appropriate but characterized the 18 month request as “woefully inadequate.”

The government noted that Morris initiated contact with the informant and offered to sell him crack, negating any inference that Morris was entrapped. The government characterized Morris’s use of a counterfeit substance as an attempt to “rip off” the informant rather than evidence that Morris could not deliver the larger amount of crack.

The District Court ultimately ruled

“Taking into consideration the nature of the offense, as well as your personal history and characteristics, I’m persuaded that a custodial sentence of 48 months is reasonable and no greater than necessary to hold you accountable, protect the community, provide you the opportunity for rehabilitative programs and achieve parity with the sentences of similarly-situated offenders.”

Judge Rovner, writing for the Court in USA v. Carl Morris wrote that the district court failed to address Morris’s argument that his sentence was unfairly driven by the crack/powder disparity, by the inclusion of a large amount of a counterfeit substance in the drug calculation, and by the actions of the informant’s police handlers. Although it is true that the court granted Morris a below-guidelines sentence, it was impossible to discern whether the district court credited Morris’s principal arguments in fashioning that sentence. The Court, therefore, remanded the case for a re-sentencing.

Case decided January 5th, 2015.

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