Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Monday, November 4, 2013

Sentencing judge explains his view on how nationwide reforms should impact federal marijuana sentencing

As noted in this prior post, U.S. District Judge James Bredar last month conducted a hearing to explore whether marijuana reforms and developments at the state and federal level now called for imposing below-guideline sentences for federal marijuana offenses.  This past Friday, Judge Bredar handed down a 12-page opinion in US v. Dayi, No. JKB-13-0013 (D. Md. Nov. 1, 2013) (available here), explaining his views and thinking on this front.  Here is an excerpt from the final sections of the fascinating (and perhaps very important?) Dayi opinion:

The evolving landscape of state law and federal enforcement policy regarding marijuana is particularly relevant to two of these [statutory sentencing] factors, namely (1) the need for any sentence imposed “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,” § 3553(a)(2)(A), and (2) the “need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” § 3553(a)(6).....

The Court’s role is not to question, criticize, or laud the Justice Department’s new enforcement priorities or the recent enactments of state voters and legislators.  These policy choices reflect an on-going effort to address a complex, difficult, and highly controversial issue.  Rather, the Court’s role is simply to take note of these developments and consider them as part ofits assessment of the seriousness of these offenses. Ultimately, the Court finds that, in 2013, strict Guidelines sentences would overstate the seriousness of the underlying offenses and therefore fail “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” § 3553(a)(2)(A)....

The Court also finds that Guidelines sentences in these cases would fail to address the “need to avoid unwarranted sentence disparities among defendant s with similar records who have been found guilty of similar conduct.” § 3553(a)(6). The Court construes this factor broadly, interpreting it as a command to ensure that sentences comport with the notion of equal justice under the law.  The Justice Department has decided it will not prosecute certain marijuana traffickers, including large-scale commercial distributors who, in compliance with state laws and regulations, establish retail outlets that cater to recreational marijuana users in Colorado and Washington.  Although the illegal enterprise in these cases is not identical to these commercial distributors — i.e., it did not comply with the laws or regulations of any state and implicated several federal enforcement priorities — it nonetheless bears some similarity to those marijuana distribution operations in Colorado and Washington that will not be subject to federal prosecution. The Court therefore finds it should use its sentencing discretion to dampen the disparate effects of prosecutorial priorities.  As a result, the Court finds this factor too justifies a downward variance from the sentence the Guidelines would otherwise recommend....

Of course, these two factors are not the only ones the Court must consider under § 3553(a). Others, particularly “the nature and circumstances of the offense,” § 3553(a)(1), and“the need for the sentence imposed to afford adequate deterrence to criminal conduct” § 3553(2)(B), militate more strongly in favor of a Guidelines sentence. Indeed, the conspiracy at issue in these cases was a large, elaborate, and profitable illegal operation involving well in excess of 1,000 kilograms of marijuana.  The Court therefore believes that a two-level variance from the Guidelines, which would reduce each defendant’s sentence by roughly 20 to 25%, is appropriate.  Such a variance reflects national trends in the enforcement of marijuana-related offenses, while recognizing the undeniable illegality of defendants’ conduct.  As it determines the sentence of each defendant in these cases, the Court will adopt this analysis, and accordingly it will grant each defendant the benefit of a two-level downward variance.

Recent related post:

http://lawprofessors.typepad.com/marijuana_law/2013/11/sentencing-judge-explains-his-view-on-how-nationwide-reforms-should-impact-federal-marijuana-sentenc.html

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