COUNTERSTATEMENT OF THE ISSUE PRESENTED FOR REVIEW

Whether the district court properly acted within its broad discretion under the sentencing guidelines to depart downward from a guideline sentence where (1) the defendant's conduct did not fall within the heartland of crack distribution cases that the Commission intended to punish harshly and, therefore, the sentence would have been unduly harsh punishment for the conduct in this case; and (2) the sentence would have been significantly less had the government arrested the defendant after his first or second drug sale to undercover police and not arranged for additional drug sales.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are contained in the addendum to this brief.

and Disposition in the Court Below

Appellee does not dispute the government's statement of the case.

B. Statement of Facts

Appellee xxxx xxxxxxx does not dispute the government's factual background and provides the following additional facts for the Court.

THE DEFENDANT: Well, I had sold -- I picked up -- I got something for a gentleman. The officer brung it back to him, and I did, you know, pick the cocaine up and taking it to him and sold it to him. Took the money back to the other guy, and I never seen any more of the money after that.

THE COURT: In other words, you were delivering crack cocaine; is that correct?

THE DEFENDANT: Correct.

THE COURT: From one person to another?

THE DEFENDANT: Correct, Your Honor.

THE COURT: Were you doing it for money?

THE DEFENDANT: No, I didn't get paid money out of that.

THE COURT: You didn't get paid?

THE DEFENDANT: No, they gave me cocaine out of that.

THE COURT: What's that?

THE DEFENDANT: I got paid through cocaine.

THE COURT: How much cocaine did they give you?

THE DEFENDANT: About maybe like $50 worth.

(6/23/94 Tr. at 17-18).¹

xxxx xxxxxxx was a street-level "server" who delivered drugs for others in order to feed his crack cocaine addiction. (PSR at 4). He first used drugs as a teenager. In his twenties, Mr. xxxxxxx began using harder drugs, heroin and cocaine, and has used crack cocaine since that time. (PSR at 7-8; 2/24/95 Tr. at 26). Over the years, he successfully quit using heroin on his own, but was unable to stop using crack. He once tried a treatment program at the Salvation Army for three months, but then returned to cocaine use. (2/24/95 Tr. at 27). Mr. xxxxxxx was 44 years old at the time of his arrest.

Mr. xxxxxxx has worked odd jobs for most of his life. (PSR at 8-9). At the time of his arrest, he worked part-time in a convenience store and lived in a boarding house in a "low-middle class neighborhood" and did not "live the life style of a big drug dealer." (2/24/95 Tr. at 21, 25, 36). Mr. xxxxxxx had no assets or liabilities. (PSR at 9). The only way for him to get the crack needed to feed his addiction was through barter -- that is, acting as a server for a dealer, who would in exchange give Mr. xxxxxxx an amount of crack. (2/24/95 Tr. at 24, 31).

SUMMARY OF ARGUMENT

District courts are allowed considerable discretion to consider personal characteristics and circumstances of a defendant in deciding whether to depart from a guideline sentence. Here, the district court properly considered Mr. xxxxxxx's conduct -- working as a street-level distributor in exchange for drugs to feed an addiction -- and the government's conduct -- repeated buys from a street-level addict who was particularly vulnerable to the government's suggestions. It also considered the heartland of the crack sentencing guidelines applicable to Mr. xxxxxxx: harsh penalties for major drug traffickers. The totality of the circumstances in this case warranted a downward departure where Mr. xxxxxxx's conduct did not fit within the heartland of the guidelines sentence.

A. Standard of Review

The government states the proper deferential standard of review under Koon v. United States, 116 S. Ct. 2035, 2046-48 (1996). In Koon, the Supreme Court explained that "it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence." Id. at 2046 (quoting Williams v. United States, 503 U.S. 193, 205 (1992)).

B. The District Court Properly Held that Mr. xxxxxxx's Case Falls Outside of the Heartland of the Guidelines for Distribution of Crack Where His Conduct Amounted to No More than Payment for Crack to Feed a Longstanding Addiction

"The [Sentencing Reform] Act did not eliminate all of the district court's discretion" in sentencing. Koon, 116 S. Ct. at 2044. As the Supreme court stated in Koon, Congress "[a]cknowledg[ed] the wisdom, even the necessity, of sentencing procedures that take into account individual circumstances . . . ." Id. (citing 28 U.S.C. § 991(b)(1)(B)). A district court may impose a sentence below the sentencing guideline range if "the court finds that there exists a[] . . . 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." 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0.

The government correctly states the explanation in Koon (and in the Introduction to the Sentencing Guidelines) that the guidelines apply to "heartland" cases -- typical cases described in each guideline. Gov't Brief at 18. For cases that fall outside the heartland because of particular defendant characteristics or circumstances, district courts may depart from the sentencing guidelines where justice warrants. Koon, 116 S. Ct. at 2044; U.S.S.G. ch. 1, pt. A, 4(b). The Sentencing Commission offers several grounds for departure in chapter 5, part K, but, by enumerating those grounds, it has not limited other grounds on which a district court can depart. "Any case may involve factors in addition to those identified [in § 5K] that have not been given adequate consideration by the Commission." U.S.S.G. § 5K2.0. In some cases, it may be the combination of characteristics and circumstances, and not any one particular factor, that distinguishes a case from the heartland of the guidelines cases. Id. commentary. Indeed, Koon explains that a court would "transgress the policy-making authority vested in the Commission" if it were to reject categorically a departure ground. 116 S. Ct. at 2050.

Here, the district court departed downward in sentencing Mr. xxxxxxx because the case fell outside the heartland of drug distribution cases under the guidelines. The court found that Mr. xxxxxxx's "crime" was his addiction to crack cocaine, not distributing drugs. (4/1/97 Tr. at 18; see id. at 7-8, 9). Mr. xxxxxxx was "not a large-scale dealer, but simply a drug addict." United States v. xxxxxxx, 966 F. Supp. 16, 17 (D.D.C. 1997). The evidence in this case supports the district court's finding. It shows that Mr. xxxxxxx merely bought drugs, through barter, to feed his habit. Instead of using money, which he did not have, he bought drugs from distributors with his time, by "serving" for them as a low-level street dealer. The district court correctly noted that had Mr. xxxxxxx been in a different socio-economic bracket, were he "out in Hollywood and he was an actor and he was making pictures and he became an addict" (4/1/97 Tr. at 8), he would have paid for his drugs with cash and not have been put in jail for such conduct.² Rather, he would be sent to the Betty Ford Clinic for substance abuse counseling. (Id. at 8, 18). This is the "[s]ame conduct, same violative act" (Id. at 8) for which Mr. xxxxxxx is now being given a lengthy sentence.

Small-time purchase, possession and use are not within the heartland of distribution cases for 50 grams or more of crack cocaine. Koon instructs courts to consider the "'structure and theory of both relevant individual guidelines and the Guidelines taken as a whole,'" and "decide whether it is sufficient to take the case out of the Guideline's heartland." 116 S. Ct. at 2045 (quoting United States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993)). Distribution cases are punished harshly by statute, and accordingly in the guidelines, because Congress perceived distributors of 50 grams or more to be "major" traffickers and distributors of 5 grams or more to be "serious" traffickers. United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 118-19 (Feb. 1995).

For the kingpins -- the masterminds who are really running these operations -- and they can be identified by the amount of drugs with which they are involved -- we require a jail term upon conviction. If it is their first conviction, the minimum term is 10 years . . . . Our proposal would also provide mandatory minimum penalties for the middle-level dealers as well. Those criminals would also have to serve time in jail. The minimum sentences would be slightly less than those for the kingpins, but they nevertheless would have to go to jail -- a minimum of 5 years for the first offense.

132 Cong. Rec. S14,300 (Sept. 30, 1986) (statement of Sen. Byrd).³

Furthermore, most traffickers are paid in money, not solely in drugs for personal use like Mr. xxxxxxx. Here, the district court merely attempted to "fit what he [xxxxxxx] did -- fit the punishment to what he did here, to the extent we are able to do it within these guidelines." (2/24/95 Tr. at 45).

The guidelines encourage downward departure where the defendant's conduct does "not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue." U.S.S.G. § 5K2.11. The Eighth Circuit, for example, approved a departure under § 5K2.11 where the defendant possessed a sawed-off shotgun, in violation of the law, for the purpose of shooting skunks, weasels and raccoons that killed his chickens. United States v. White Buffalo, 10 F.3d 575 (8th Cir. 1993). There, the defendant testified that he needed the short barrel in order to get to the varmints, which hid in crawl spaces in his outbuildings. Id. at 576. The district court based its departure decision on the facts that the defendant lacked a "criminal motive" and that the law was meant to protect society from violence "and not to protect predatory animals . . . ." Id. Similarly, here, where the interests of Congress are to get "major" and "serious" traffickers off the streets, and not to lock up addicted users, the statute and punishment do not fit the crime. See also United States v. Lara, 47 F.3d 60, 67 (2d Cir. 1995) (affirming departure for defendant with high-end sentence for crack distribution, where defendant was a low-level street dealer, because guideline sentence overrepresented culpability of defendant).

Because this is not a heartland distribution case, it necessarily follows that the district court determined that the 70 to 87 month sentence in this case was disproportionate and unduly harsh. While a district court cannot depart solely because it believes a sentence is too high, departure is proper where the court believes a sentence is too high because of a factor not taken into account by the Sentencing Commission. United States v. Sanchez, 933 F.2d 742, 746 (9th Cir. 1991). The finding here that the sentence was unduly harsh, and the resulting decision to depart, should be given the substantial deference mandated by Koon.

The district court did not use an impermissible factor for departure, and it did not abuse its discretion. The judgment of the district court as to this particular defendant, his circumstances, and a just punishment relative to other guidelines cases, should be given substantial deference. See Koon, 116 S. Ct. at 2047 (finding that district courts have "special competence" and an advantage over appellate courts in making departure decisions because they see many more guidelines cases).

C. The District Court Properly Considered the Government's Conduct in this Case as One of the Factors Contributing to the Justification for a Downward Departure

Where one factor alone may not be an adequate basis for departure, the totality of circumstances may nevertheless warrant such departure. See U.S.S.G. § 5K2.0; Koon, 116 S. Ct. at 2047 (directing courts to consider whether a "particular factor is within the heartland given all the facts of the case"). A district court is not limited to particular, enumerated factors in the guidelines as the bases for a downward departure. Rather, a court should consider all the circumstances of a case and, based on the totality, determine whether the case falls outside the heartland of guidelines cases.

The district court here considered, but did not solely rely on, the fact that the government's conduct played a significant role in setting Mr. xxxxxxx's sentence. xxxxxxx, 966 F. Supp at 17. The court explained that had the undercover officer arrested Mr. xxxxxxx after the second drug purchase, before arranging for the 55.85-gram purchase, Mr. xxxxxxx's sentence would have been less severe. Id. The court further found that Mr. xxxxxxx's drug addiction made him particularly vulnerable to the government's lead. Id. at 18.

The district court can consider police conduct when making a departure decision. United States v. Barth, 990 F.2d 422, 424-25 (8th Cir. 1993). Merely because police conduct did not amount to "sentencing entrapment" or "sentencing manipulation,"⁶ does not make it an impermissible factor to consider for a sentencing guidelines departure. Cf. United States v. Washington, 106 F.3d 983, 1016 (D.C. Cir. 1997) ("The appellants . . . argue that even if the Government's alleged sentencing manipulation is not by itself sufficient to grant a downward departure it may be considered as part of the totality of the circumstances. Unfortunately for the appellants, there is no other mitigating factor to throw into the mix."); Koon, 116 S. Ct. at 2053 (holding that although successive state and federal prosecutions do not violate double jeopardy, a district court may consider this factor for departure). A court may consider any factor not proscribed by the Sentencing Commission. Koon, 116 S. Ct. at 2050-51.

The police conduct here is one factor that supports the district court's determination that Mr. xxxxxxx's case does not fall within the heartland of large crack distribution cases, and it was properly considered by the district court. Officer Carlton Perry testified that the DEA arranged for three buys of increasing amounts in order to "bring out his [xxxxxxx's] supplier." (2/24/95 Tr. at 14-16). "[T]he goal [was] to get the next target . . . ." (Id. at 15). Police here were targeting Mr. xxxxxxx's suppliers, i.e., the "major" and "serious" traffickers intended by Congress to be punished under the harsh crack sentencing laws. By increasing the amount of the sale to over 50 grams of crack, they shifted their focus from Mr. xxxxxxx to his supplier. The police continued to use Mr. xxxxxxx because he was an accessible, street-level person who proved to be easy prey for the government's operations. If the police had intended only to arrest Mr. xxxxxxx for distribution of cocaine, they could easily have done so after the first or second buy, without unnecessarily increasing his sentence.

The government cites Barth for the proposition that repeated drug purchases controlled by the government that increase a defendant's sentence do not warrant a downward departure. (See Gov't Brief at 30-32). In Barth, the defendant relied solely on this ground for departure. The court of appeals first expressed concern over the government conduct, but then held that it was not sufficient by itself to warrant a departure. 990 F.2d at 425.

Mr. xxxxxxx's case is easily distinguishable from Barth in that the district court here did not rely solely on the police conduct for its departure. Rather, it considered the conduct as one factor contributing to the total circumstances that warranted departure.

While the police conduct in this case may not meet the test for "sentencing entrapment" or "sentencing manipulation," it contributed to the total circumstances that take this case outside of the heartland of the guidelines for distribution of large amounts of crack cocaine.

CONCLUSION

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief for Appellee does not exceed the number of words permitted by D. C. Circuit Rule 28(d).

_________________________________

EVELINA J. NORWINSKI

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 9, 1997, two copies of the foregoing Brief for Appellee were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.

___________________________________

EVELINA J. NORWINSKI