Judge Cassell Can’t Quite Do the Right Thing

In Utah yesterday, a federal judge handed down a sentence in a closely watched case that may portend bad things for post-Blakely federal sentencing. The defendant was convicted of several marijuana distributions, which would generally net him a sentence of about 6 and a half years. In addition, he was convicted of three “924(c)” charges for “carrying” a gun during some of those sales. In one instance, the Government’s buyer saw the gun in the defendant’s car. In another, the defendant showed the buyer the gun while it was in an ankle holster. The third conviction came from the fact that when police searched the defendant’s home they found a few more guns along with a stash of pot.

924(c) convictions carry minimum maximum penalties, which district courts have no discretion to ignore. A first conviction gets you 5 years, the second and third an additional 25 years each. The defendant’s three convictions in this case required the judge to impose a sentence of 55 years, above and beyond the time for the drugs. The result would leave the defendant in prison until at least his 70^th birthday.

Judge Cassell was obviously bothered by this and requested briefing on whether he had any option other than impose such a draconian sentence. The defendant argued that he did, because 924(c) violates his due process rights and amounts to cruel and unusual punishment in his case. Cassell, in a lengthy opinion you can read here, pointed out how very irrational it was to impose a harsher sentence on this young man, who never used the gun in anyway, than he was allowed to impose on murders, rapists, and terrorists. This is particularly true when you consider that the only reason he committed the second and third offenses was that the Government didn’t arrest him after the first buy.

He then pretty convincingly set out that such a long sentence would, indeed, be cruel and unusual. Then, somewhat surprisingly, he decided he was bound by earlier Supreme Court precedent (which may or may not be good law any more) and bound to impose the 55 year term. To mitigate things somewhat, he gave the defendant only a 1 day sentence on the drug charges.

Having read the opinion, I am surprised that Cassell didn’t go ahead and find the 924(c) sentenced unconstitutional. He was one of the first district court judges to apply Blakely to the Sentencing Guidelines, rejecting the Government argument that prior Supreme Court precedent resolved the issue differently. So why get cold feet now? Might this impact the pending Supreme Court post-Blakely cases? Expansion of these kinds of mandatory minimums are the nightmare scenario some are preaching of the Court knocks the Guidelines down.