UNITED STATES OF AMERICA, :
:
v. : Cr. No. 88-161 (JGP)
:
KAREN BROWN, :
:
Defendant. :
The government is not content with the recommended sentencing range of the presentence report, but seeks to have the Court impose a sentence at a minimum of just over ten years. Such a sentence under the circumstances of this case shows a profound lack of humanity and decency, as well as a misinterpretation of the sentencing guidelines. For the reasons discussed below, and in Ms. Brown's original memorandum, such a sentence, which would result in an incredible waste of lives and money, is not required, and would in fact violate the mandate of 18 U.S.C. § 3553(a) that requires the court to impose a sentence that is "sufficient, but not greater than necessary" to provide "just punishment."
Incredibly, the government asserts that a sentence of more than ten years will "preserve the integrity of the judicial system" and will somehow reduce "unwarranted disparities in sentencing" (GM 3) (1). The government's memorandum makes no mention of any defendant in similar circumstances whose sentence would be disparate to that of Ms. Brown, if she were placed on probation. In addition, as discussed below, the government's professed concern for the integrity of the system is belied by the lack of such in several of its arguments.
The government initially argues that the 1987 sentencing guidelines should be applied to Ms. Brown's case. This is asking the court to ignore the mandate of the guidelines that the guidelines in effect as of the date of sentencing be applied unless that would result in an ex post facto violation, U.S.S.G. §1B1.11. The government has identified only one ground raised in Ms. Brown's memorandum that is not available under the current version of the guidelines, lack of guidance as a youth and similar circumstances. While precluding that as a ground of departure would be an ex post facto violation, if the court believes that it cannot consider that ground if it follows the current version of the guidelines, Ms. Brown contends that the court should follow whichever version of the guidelines that will result in the lower sentence.
The government also fails to point out that §80001(c) of Pub.L. 103-322 provides that the safety valve statute, 18 U.S.C. §3553(f), applies "to all sentences imposed on or after" September 23, 1994. Thus, the government would have the court impose the sentence in direct violation of a statute.
Finally, the government deplores the fact that showing any compassion towards Ms. Brown might send a message that it is beneficial to "flee and reform" (GM 2). Ms. Brown does not advocate anything other than that the extraordinary circumstances of her individual case be taken under consideration, and of course does not contend that she took the right course by failing to appear for sentencing. However, it is somewhat ironic that the government feels it benefits society more to incarcerate at great expense a nonviolent first-time offender who has completely rehabilitated herself, destroying everything she has attained and taking her from her son. Again, while not condoning failure to appear it is somewhat difficult to see the benefit to society of lengthy incarceration, with all its direct and indirect costs and effects, coupled with a generally high rate of recidivism, as opposed to a more humane policy toward a person who has proven that she can completely abandon any criminality, and can become a productive member of society.
I. ROLE IN THE OFFENSE
The government claims that Ms. Brown is not entitled to any mitigating role adjustment. Ms. Brown cited a number of cases of people more culpable than she who had received four-point downward role adjustments. The government's only response is that in those cases the adjustment "apparently was not contested on appeal" (GM 9). The government does not dispute that those more culpable defendants received four-point adjustments. If the government were truly interested in eliminating disparity in sentencing it would not oppose the four-level adjustment, never mind the two-level adjustment recommended in the presentence report. Indeed, the government conveniently ignores its own words at the plea that Ms. Brown was not a "major player", but was just an "eighteen-year old courier."
In arguing against any mitigating role adjustment, the government relies heavily upon United States v. Olibrices, 979 F.2d 1557 (D.C. Cir. 1992). An examination of Olibrices shows the fallacy in the government's argument. The defendant in Olibrices did much more than just act as a courier, for she participated in the purchase of the drugs, eluded police, and arranged for the delivery of the drugs, even after she was stopped at the airport, questioned, and released. Id. at 1558. She pleaded guilty to one count carrying a five-year maximum sentence, in exchange for dismissal of other counts, including participation in a larger drug conspiracy. Id. The district court found she was a major participant in the offense to which she pleaded guilty, and thus refused to apply an adjustment under U.S.S.G. § 3B1.2, even though she may have played a minimal role in the larger conspiracy, the relevant conduct of which was not accounted for in the offense of conviction. Id. At 1559. Indeed, it was because she was permitted to plead to a lesser offense, a circumstance which fit squarely within the commentary to §3B1.2, that the court in Olibrices affirmed the denial of the mitigating role adjustment. Id. At 1560. See U.S.S.G. §3B1.2, comment (n.4). (2)
Ms. Brown, by contrast, played a far smaller role in the actual offense of conviction. She did not plead guilty to any lesser offense, receiving no benefit for her plea, but pleaded to the charge in the indictment, which included all the relevant conduct. She was a minimal participant in the offense on which the guidelines are based, and should therefore receive the four-point downward adjustment.
II. ACCEPTANCE OF RESPONSIBILITY
The government cites several cases where defendants' appeals were rejected where the district court refused to give an acceptance adjustment to defendants who had been fugitives. In several of the cases, the defendants used false names and committed other fraudulent acts. Ms. Brown continued to live in New York City, never used another name and would have been easy to locate through her family had anyone tried to do so. (3) The cases cited by the government do nothing more than affirm the district court's discretion. As the court stated in United States v. Yeo, 936 F.2d 628, 629 (1st Cir. 1991), deciding whether a case warrants an acceptance adjustment even though there has been an obstruction adjustment "is a matter for the district court, not this court." Notably, the government cites no case reversing a district court's decision to grant an acceptance adjustment in conjunction with an obstruction adjustment. See, e.g., United States v. Restrepo, 936 F.2d 661, 665 (2d Cir. 1991)(affirming downward adjustment for acceptance of responsibility where enhancement for obstruction of justice was also imposed).
The present case, as discussed more fully in Ms. Brown's original memorandum, is one that does warrant the acceptance adjustment. The government simply ignores the statement in the presentence report that Ms. Brown has accepted responsibility for the offense.
III. THE SAFETY VALVE
The government opposes application of the safety valve, U.S.S.G. § 5C1.2, to Ms. Brown, along with the two-point downward adjustment of U.S.S.G. § 2D1.1(b)(4). The government does not dispute that Ms. Brown qualifies under the first four subsections of the safety valve, but asserts she has failed to provide truthfully all the information she has concerning the offense. The government focuses on alleged inconsistencies between Ms. Brown's statements after her arrest on April 7, 1988, her letter to this court of December 3, 1996, and an interview with the government on January 28, 1997.
It is apparent that the interview on January 28 was not a good faith effort to determine whether Ms. Brown qualified for the safety valve. Rather, the meeting was a dishonest charade where the government attempted to elicit inconsistent statements from Ms. Brown to attempt to disqualify her from receiving the safety valve. The government's bad faith is evidenced by the fact that it does not deny it made no attempt to contact people who could verify Ms. Brown's version of the events, despite the fact the government asked for the names, addresses, and telephone numbers of these people.
Ms. Brown's original memorandum addressed the claimed inconsistencies in her statements. Just because she was not erudite enough, does not mean she is not telling the truth. Ms. Brown was "forthright within the range of her ability." United States v. Thompson, 76 F.3d 166, 171 (7th Cir. 1996). Ms. Brown will also present testimony about this issue at the sentencing hearing.
IV. DEPARTURES
A. Introduction
In its discussion opposing any grounds for departure in this case the government fails to acknowledge or recognize the different analysis required since the Supreme Court's decision in Koon v. United States, 116 S.Ct. 2035 (1996). (4) Unlike the government, the courts of appeals have understood the different analysis to be applied, and in several instances have changed earlier precedent in their circuits. In United States v. Brock, 108 F.3d 31 (4th Cir. 1997), the Fourth Circuit found that post-offense rehabilitation is a proper ground for a downward departure, overruling pre-Koon Fourth Circuit case law. After Koon, the Seventh Circuit has held that a defendant's remorse may be a ground for a downward departure. United States v. Jaroszenko, 92 F.3d 486, 491 (7th Cir. 1996). The Ninth Circuit has reversed its prior case law precluding consideration of acquitted conduct in making departure decisions. United States v. Sherpa, 97 F.3d 1239, 1249 (9th Cir. 1996). See also United States v. Meza, 76 F.3d 117 (7th Cir.), vacated and remanded, 117 S.Ct. 448 (1996)(Supreme Court vacates, for reconsideration in light of Koon, holding that departure is prohibited because of disparity of sentence with sentence of codefendants.)
B. Lack of Guidance, Emotional Immaturity, and Disorienting Effect of Mother's
Schizophrenia.
The government claims that Ms. Brown was "mature beyond her years, was quite capable of resisting Mr. Stokes' entreaties and would have had favorable guidance available to her had she sought it." (GM 16). These assertions are nonsense that have absolutely no support in the record. Indeed, it is disingenuous to argue that the terribly unfortunate circumstances of Ms. Brown's upbringing made her mature beyond her years. In fact, just the opposite is true. The government fails to mention she dropped out of school. The fact that Ms. Brown finally gave in to Mr. Stokes and agreed to carry drugs one time for $200 due to the desperation of her circumstances is not "simply succumb[ing] to the lure of easy money" (GM 17). This assessment of the situation, as Ms. Brown's mother was repeatedly admitted for psychiatric treatment, demonstrates such a profound lack of understanding of Ms. Brown's situation, as to undermine the entire credibility of the government's argument.
C. Extraordinary Rehabilitation, Acceptance of Responsibility, and Remorse.
The government does not dispute any of the facts of Ms. Brown's accomplishments since her arrest, and even "agrees" that they have been "substantial" (GM 2). Nonetheless, the government opposes a departure on this ground as well, incorrectly stating that "neither the Guidelines nor the case law provides a basis for a departure based on general efforts at rehabilitation." (GM 17). Several courts have recognized extraordinary rehabilitation efforts as being valid grounds for a downward departure. United States v. Brock, 108 F.3d 31; United States v. Barton, 76 F.3d 499, 503 (2d Cir. 1996); United States v. Simpson, 7 F.3d 813, 919-20 (8th Cir. 1993); United States v. Shasky, 939 F.Supp. 695 (D.Neb. 1996). (5) The closely allied concept of remorse is also an appropriate ground for a downward departure. United States v. Jaroszenko, 92 F.3d at 491.
D. Coercion and Duress.
Ms. Brown relies upon the arguments made in her original memorandum on this issue , as well as testimony to be introduced at the sentencing hearing.
E. Aberrant Behavior.
United States v. Dyce, 91 F.3d 1462, 1470 (D.C. Cir.), cert denied 117 S.Ct. 533 (1996), the court adopted as the meaning of a single act of aberrant behavior, the notions of spontaneity and seeming thoughtlessness. The court in Dyce remanded the case to the district court to consider whether a departure was appropriate on this ground for a courier of drugs who travelled by train. Id. The court noted that the defendant's train reservation was made two days in advance, which "would appear to have given her ample opportunity to reconsider her decision." Id. Obviously, however, the court in Dyce did not preclude couriers from receiving departures for aberrant behavior in appropriate cases.
The present case is an appropriate one. Ms. Brown resisted the requests from Mr. Stokes until she spontaneously and thoughtlessly succumbed one day. She did not contemplate the matter for any period of time. Mr. Stokes then came and gave the drugs to Ms. Brown along with money for her travel. She immediately went to the train station and got on a train to D.C. There was thus no "ample opportunity to reconsider her decision," but rather the circumstances do fulfill the requirements to be classified as a single act of aberrant behavior.
F. Family Responsibility.
Unlike the situation in Dyce, where other family members and the children's father were available to care for the children, Ms. Brown is the sole caretaker of her child, and the only person who can care for him. The government concedes that Ms. Brown's mother cannot care for the child. (6) The government suggests that other family members might be able to care for the child during a ten-year period of incarceration (GM 21). This is simply a fantasy the government has created from nothing, as evidence Ms. Brown will present at the sentencing hearing will show. Furthermore, the government incorrectly states that Ms. Brown's sister "posted a $25,000 appearance bond in New York" when Ms. Brown was arrested in 1996 (GM 21). In fact, the sister signed on a $25,000 personal recognizance bond, she did not post any money or surety. (7) The fact that family members may be supportive of Ms. Brown, in light of her remarkable transformation, does not translate into an ability to care for a child for ten years. The government does not dispute that under New York law Ms. Brown may well lose her parental rights if she is incarcerated for more than twelve months.
The government also completely ignores the Congressional intent to keep children and their primary caretaker parents together, as expressed in the Family Unity Demonstration Project Act, 42 U.S.C. §13881. The failure of the government to mention this is not surprising, for the government has apparently made no efforts to implement these provisions. Having made no effort to implement this statute and the underlying Congressional purpose, the government would rather simply incarcerate Ms. Brown for ten years and take away her son. This position hardly lends integrity to the system, about which the government professes to care. The failure to implement the Act in cases such as that of Ms. Brown is another factor taking this outside the heartland of cases, also justifying a downward departure.
G. Combination of Factors.
The government simply states that the combination of factors in the present case does not warrant a departure (GM 22). The Sentencing Commission has, however, "explicitly authoriz[ed]" departures based on a combination of factors not ordinarily relevant where the combination takes the case out of the"heartland." U.S.S.G. § 5K2.0, comment. See United States v. Dyce, 91 F.3d at 1468. Ms. Brown's circumstances clearly warrant such a departure.
V. CONSTITUTIONALITY OF COCAINE BASE PENALTIES
a. Standing
The government first contends that Ms. Brown does not have standing to raise an equal protection claim with respect to her claim that Congress acted with a motive to benefit blacks in blocking the equalization of crack sentences to powder cocaine sentences. The government does not argue that Ms. Brown does not have standing with respect to her claim of purposeful discrimination. In any event, the government's argument is frivolous.
The government cites four cases in support of its standing argument. One,
Women Prisoners of District of Columbia v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996), contains no discussion of standing. In Adarand Constructors v. Pena, 115 S.Ct. 2097, 2104 (1995), the Court dealt with the issue of standing to seek "forward-looking relief." In Department of Labor v. Triplett, 494 U.S. 715, 720 (1990), the Court did state that "ordinarily" parties must assert their own legal rights and interests. That case addressed the limitation on attorneys' fees in the Black Lung Benefits Act of 1972.
The court in DKT Memorial Fund v. Agency for International Development, 887 F.2d 275, 283 (D.C. Cir. 1989), addressed whether, under the doctrine of "prudential standing," non-resident aliens outside the jurisdiction of the United States could raise First Amendment claims.
The court stated that the foreign nationals had attempted "to circumvent the question by restating it." Id. That is exactly what the government has done in the present case.
Ms. Brown is asserting her own right and interest to be free from a period of incarceration based upon a law motivated by improper racial consideration. Ms. Brown is challenging the very law under which the government seeks to incarcerate her for over ten years. The government's attempt to circumvent the issue by restating it fails.
The test for standing in racial classification cases is found in a recent Supreme Court voting rights case, United States v. Hays, 115 S.Ct. 2431, 2435 (1995):
It is by now well settled that "the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an 'injury in fact' -- an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a casual connection between the injury and the conduct complained of . . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." [citation omitted]
In the context of a racial classification challenge, a defendant sentenced under the harsher crack statutes/guidelines can meet these elements. A defendant's injury is the disproportionately longer sentence imposed on her by the crack statute/guidelines. The sentence is a direct result of Congress' intent to give heightened protection to black communities. And the defendant's injury would be redressed if the crack statutes/guidelines were overturned and she was sentenced under the powder statutes/guidelines.
The court should also consider another aspect of standing. Defendants sentenced under the crack statutes/guidelines are the only persons who, in reality, would bring an equal protection challenge of those laws. Members of non-minority communities where crack cocaine is not traded are unlikely to bring an equal protection challenge seeking equivalent, harsher punishment for distribution of powder cocaine. Those communities are already adequately protected by existing laws prohibiting possession and distribution of powder cocaine. Furthermore, there is little to gain as compared to the economic burdens of such litigation. The Supreme Court in Powers v. Ohio, 499 U.S. 400 (1991), approved standing in an analogous situation, ruling that a defendant in a criminal action could assert the equal protection rights of jurors allegedly dismissed through racially motivated preemptory challenges.
b. Benign Discrimination
The government claims that Ms. Brown's argument "is not aimed at an Act of Congress" (GM 23). That is puzzling, because Ms. Brown's contentions relate directly to the Disapproval Act, Pub.L. No. 104-38, absent which the new sentencing guidelines would have gone into effect, which would have lowered crack sentences to those of powder cocaine. Congress did not "decline[ ] to act in 1995" (GM 23) - Congress specifically passed a law that blocked the Sentencing Commission's effort to ameliorate some of the racism in the guidelines. This action by Congress was taken even though it was presented with evidence of the severe discriminatory impact of the sentencing structure, and evidence that the structure was based on irrational considerations.
Equally confusing is the government's argument that Ms. Brown is relying upon the debates of a subsequent Congress "to find discriminatory intent with respect to a prior Congress" (GM 24). Once again, it is the action of the 104th Congress, in light of the Sentencing Commission's report and proposed amendment, which Ms. Brown is contesting. Only by again restating the wrong question does the government attempt to avoid the issues.
The government next confuses the arguments regarding the benign discrimination and purposeful discrimination arguments made by Ms. Brown, and lumps them together. The government cites snippets of the debates in Congress, while failing to respond to the lengthy excerpts in defendant's original memorandum.
The government also claims that Ms. Brown must, with respect to her benign discrimination claim, show that "race was the predominant factor motivating the legislature's decision." Miller v. Johnson, 115 S.Ct. 2475, 2488 (1995). The government neglects to point out, however, that the Court restricted this difficult test to cases involving "the sensitive nature of redistricting" which "requires courts to exercise extraordinary caution in adjudicating claims that a state has drawn district lines on the basis of race." Id. The Court again emphasized the special considerations in redistricting cases in Shaw v. Hunt, 116 S.Ct. 1894, 1900 (1996). Earlier in Miller, the Court reaffirmed the analysis of cases such as Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). In Arlington Heights, the court stated:
Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant" or "primary" one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.
Id. At 265-66(footnotes omitted). (8)
Ms. Brown amply demonstrated in her original memorandum the numerous examples in the legislative history of race being the main factor behind the Disapproval Act. Indeed, the evidence is such that it would even meet the "predominant factor" test of Miller. (9)
c. Purposeful Discrimination
The government simply ignores the circumstances that have changed since the decision in United States v. Johnson, 40 F.3d 436 (D.C. Cir. 1994), cert. denied, 1155 S.Ct. 1412 (1995), as discussed in Ms. Brown's original memorandum. In addition, the government ignores Judge Calabresi's analysis in United States v. Then, 56 F.3d 464, 468 (2d Cir. 1995). Indeed, even Congress recognized that the penalties for crack were not appropriate.
The government's support for the crack sentencing disparity is especially surprising in light of the views of United States Attorney Eric Holder, Jr. who stated that, "it's my personal feeling that the penalty disparity between powder cocaine and crack cocaine is one that has an illogical and improper effect." Legal Times, p.12 (January 24, 1994). In addition, with respect to mandatory minimum penalties, Mr. Holder stated:
I'm one of two minds with that. As a former judge, I am uncomfortable with the notion of mandatory minimum sentences, especially in cases that involve non-violent offenders. As a prosecutor, I think that there is a place for mandatory minimum sentences when it comes to violent offenders.
My concern, however, is that if we expand mandatory minimums too much, and given the fact that we have limited jail space, we
oftentimes end up putting the wrong people in jail, and for too long.
Id. at 10.
In light of these remarks it is astonishing that the government wholeheartedly supports and embraces the racist sentencing policies with respect to crack. It is simply hypocritical to lend support to a scheme that has "an illogical and improper effect." The government's position makes a mockery of its false profession of preservation of the integrity of the judicial system (GM 3). It is especially noteworthy in the present case where Ms. Brown is one of the non-violent offenders whom Mr. Holder believes should not be subjected to a mandatory minimum. Ms. Brown is clearly, in Mr. Holder's own words, one of the "wrong people" to send to jail, and the minimum 121 months the government seeks is "f[a]r too long."
For all the reasons discussed above, and in Ms. Brown's original sentencing memorandum, Ms. Brown respectfully requests the court impose a sentence that reflects the extraordinary circumstances of her case, and which complies with the mandate of 18 U.S.C. §3553(a).
Respectfully submitted,
A.J. Kramer
Federal Public Defender
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
Counsel for Defendant Karen Brown
1. "GM" refers to the government's response to Ms. Brown's sentencing memorandum.
2. In relevant part, §3B1.2, comment. (n.4) provides:
If a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a mitigating role under this section ordinarily is not warranted because such defendant is not substantially less culpable than a defendant whose only conduct involved a minimal role in the offense.
3. She was apparently arrested as a result of applying for a driver's license in her true name, when this court's outstanding warrant was matched up with her name.
4. In its discussion regarding departures, the government cites only one case decided after Koon, United States v. Griffiths, 1997 WL 49773 (D.Vt. 1997), which is a case that was cited in Ms. Brown's original memorandum. The government attempts to distinguish this case.
5. While ignoring these cases, the government cites two pre-Koon cases involving facts substantially less compelling than those of Ms. Brown's case. In light of Koon, it is not even clear that these cases are still good law, as discussed above. In addition, the government claims that a departure on these grounds may only be appropriate in cases involving drug dependency. This claim is not only not supported by the cases the government cites, but also is wrong in any event as evidenced by the cases approving such a departure based on extraordinary rehabilitation in cases not involving drug dependency, the very cases the government does not mention.
6. This concession is surprising, for the government apparently believes it was beneficial for Ms. Brown to become "mature beyond her years" as a result of being raised by a mentally ill mother, who was hospitalized frequently.
7. It is ironic that the government believes Ms. Brown should be denied the safety valve provision because of statements the government claims were false, but the government apparently feels no obligation on its part to ensure the corrections of its statements.
8. The government does not dispute that strict scrutiny applies to cases of benign classification. See Adarand Constructors v. Pena, 115 S.Ct. at 2112.
9. The government claims that references to "minority neighborhoods" in the legislative history "are not necessarily references to black persons" (GM 28). While the truth of this assertion is doubtful, it also is irrelevant. Whatever minority might be at issue, "all racial classifications are subject to strict scrutiny." Adarand Constructors, 115 S.Ct. At 2113.