Seventh Circuit Week in Review, Part II: Determining Drug Quantity for Sentencing

This post wraps up the review of new Seventh Circuit criminal opinions that I began yesterday.  In United States v. Fox (Nos. 07-3830 & 07-3831), defendants Fox and Sykes were convicted of various drug trafficking offenses.  Fox was in the habit of getting high with Sykes at Sykes’s house.  In order to support his habit, Sykes sold drugs to others, and, on an uncertain number of occasions, had Fox make drug deliveries to customers on his behalf.  Fox and Sykes were arrested after they participated in a drug sale to an undercover cop, and forty grams of crack cocaine were found by police in Sykes’s house.  The main issue on appeal was whether Fox should be held responsible for those forty grams at sentencing.

Under the Federal Sentencing Guidelines, the quantity of drugs possessed or distributed by a defendant normally dominates the sentencing calculus.  Moreover, a defendant is responsible not just for the drugs that he himself possessed or distributed, but also for the drugs foreseeably possessed or distributed by coconspirators in connection with “jointly undertaken criminal activity.”  This is a controversial — and, in my view, misguided — feature of the Guidelines that can result in very long sentences for small players in large drug trafficking operations.  (My Criminal Law students will recognize parallels between this feature of the Guidelines and the so-called “Pinkerton Rule,” which results in criminal liability for crimes foreseeably committed by one’s coconspirators in furtherance of the conspiracy.)

In Fox, the district court judge determined that Sykes’s possession of forty grams of crack was foreseeable to Fox, and accordingly sentenced Fox as if he had been found in possession of that sizeable quantity of the drug himself.  Fox’s sentence was essentially doubled as a result of this decision.

On appeal, the government relied on Fox’s guilty plea to conspiring to distribute crack with Sykes to establish Fox’s responsibility for the forty grams.  However, the Seventh Circuit (per Judge Cudahy) correctly observed that the Guidelines’ concept of “jointly undertaken criminal activity” is expressly made narrower than Pinkerton liability.  Thus, a guilty plea to conspiracy cannot suffice to make one defendant responsible for sentencing purposes for the drugs possessed by another defendant.  Instead, the sentencing judge must make separate findings regarding the scope of the defendant’s jointly undertaken criminal activity.  Although the sentencing judge in Fox determined that Fox “was aware that Sykes stored drugs at his residence,” this finding could not justify increasing Fox’s sentence on the basis of such drugs “[w]ithour consideration of whether that awareness arose out of Fox’s joint criminal activity with Sykes.”  The Seventh Circuit thus remanded for the sentencing judge to reconsider whether Fox really should be held responsible for the forty grams — a rare sentencing win for a defendant in the courts of appeals.

This Post Has 2 Comments

  1. Brian Borkowicz

    While I agree that drug quantity calculations in conspiracy cases are often unfair — at least for the smaller fish — this case raised a different set of questions for me. The sentencing judge found that Fox was responsible for drugs possessed by his co-conspirator and calculated the Guideline range accordingly, which resulted in a much higher range (46-57 months instead of 24-30) and an ultimate sentence of 46 months. Would this case have come out differently if the judge had instead calculated the Guideline range based on the lower quantity, and then used the sentencing factors in 18 U.S.C. § 3553(a) to vary upward and arrive at the same 46-month sentence?

    The Seventh Circuit seems to be willing to affirm just about any sentence imposed by a judge who has given meaningful consideration to the sentencing factors, so why would a judge make a borderline call like this one on the Guidelines calculation when he would (seemingly) be on stronger footing under 3553(a)? Should judges be making strategic decisions like this? I think there are cases where they should, but this was not one of them. Fox was in Criminal History Category I and was directly responsible for delivering a small amount of crack on two occasions. A Guidelines sentence of 24-30 months would probably be sufficient here, but there are other occasions where a sentence within the Guidelines range may not reflect the severity of the crime, be an adequate deterrent, or be sufficient to protect the public, and I think sentencing judges should reserve their ability to impose above-Guidelines sentences for those situations.

  2. Michael M. O'Hear

    Nice comment, Brian. You may see here an indication of the persistence of a pre-Booker mentality among federal judges, in which the Guidelines (although now only one of several 3553(a) factors) are still treated as the dominant consideration at sentencing. The Supreme Court has at times seemed to discourage this mentality, but, by requiring a correctly calculated Guidelines sentence as a component of “procedural reasonableness,” the Court sends a message to sentencing judges to continue their pre-Booker practices (including making the “borderline calls” with respect to drug quantity that they would have made before 2005) and suggests that the new 3553(a) analysis might appropriately be treated as an afterthought. I think the post-Booker system would work better if district court judges were excused from resolving all Guidelines disputes where the 3553(a) factors pretty clearly point to the higher or lower possible range as more appropriate. So, here, the judge might say, “The properly calculated Guidelines range would be either 24-30 or 46-57. The 3553(a) factors indicate that 24-30 would clearly be more appropriate, so I will sentence in that range, rather than resolve a very close factual question.”

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