It Takes Two to Tango

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Historically, courts have declined to impose aiding and abetting liability regarding crimes for which two parties are essential to commission.  As the Model Penal Code puts it, accomplice liability does not extend to conduct that is “inevitably incident” to the main offense; more colloquially, accomplice liability will not apply to crimes for which it “takes two to tango.”  Thus, a buyer of drugs for personal use does not aid or abet the dealer’s distribution; a woman who voluntarily accompanies a man across state lines for purposes of prostitution does not facilitate his violation of the Mann Act; the patron of a speakeasy does not aid and abet the illegal sale of alcohol.  And, as of today, a person who telephones a drug trafficker to order cocaine for personal use does not violate 21 U.S.C. § 843(b).

Section 843(b) offenses are commonly known as “phone counts.”  The statute makes it a felony, punishable by up to four years in prison, to knowingly or intentionally  use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under the Controlled Substances Act.  Some Circuits, including the Seventh, had held that a buyer’s use of the phone in purchasing drugs “facilitates” the seller’s (felony) drug distribution within the meaning of § 843(b).  Today, in Abuelhawa v. United States, the Supreme Court held that Congress, legislating in light of the common-law tradition discussed above, did not intend such a result.  Although the term “facilitate” could be subject to the broad construction urged by the government, the Court found that Congress likely intended the term “facilitate” to be construed similar to “aid and abet.”  The Court noted that Congress generally made simple drug possession a misdemeanor, and transforming misdemeanor possession into a felony simply because a phone was involved would skew “the congressional calibration of respective buyer-seller penalties.”

Phone counts are often used as a means of resolving cases involving greater charges, like conspiracy to distribute.  In those situations, even if the caller is primarily a user, he may intend at least some of the drugs for re-distribution, or he may be middling transactions for others.  But simply using the phone to make a misdemeanor drug purchase is (now) outside the scope of the statute.

Permission to Skip to the Chase

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Seventh CircuitLeave a comment» on Permission to Skip to the Chase

In United States v. Booker, the Supreme Court held that the mandatory federal sentencing guidelines violated a defendant’s Sixth Amendment right to trial by jury. As a remedy, the Court excised the statutory provision, 18 U.S.C. § 3553(b), requiring the district court to impose a sentence within the guideline range, thereby rendering the guidelines effectively advisory. Under Booker‘s advisory guideline regime, district courts must still calculate and consider the guidelines, but are free to impose a reasonable sentence above or below the range based on the other sentencing factors set forth in 18 U.S.C. § 3553(a).

So, sentencing is now a two-step process. (In some circuits, it’s three steps, but let that pass.) The court must first calculate the guideline range, just as it did before Booker, and then at step two determine an appropriate sentence in light of all the statutory factors.

But guideline calculations can be quite complex. The Guidelines Manual approaches 600 pages, and studies have shown that, depending on who is doing the calculating, the same set of facts can produce divergent guideline ranges. (See Professor O’Hear’s article, “The Myth of Uniformity,” 17 Fed. Sent. Rep. 249, for more on this.) Must the court, post-Booker, still resolve all disputed guideline issues, even though it has settled on an appropriate sentence under the statutory factors? Last week, in United States v. Sanner, the Seventh Circuit addressed this question. Continue reading “Permission to Skip to the Chase”

4 to 1 to 4

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After the issuance of a particularly fractured decision, featuring multiple concurrences and dissents, former Chief Justice Rehnquist once quipped, “I didn’t know we had that many people on our Court.”  The quote came to mind after reading a recent Supreme Court decision, Arizona v. Gant, in which Justice Scalia did something rather unusual and, from the perspective of those tasked with application of the Court’s often splintered decisions, laudatory.  He provided the fifth vote needed to produce a majority opinion, despite the fact that he did not entirely agree with the opinion he joined.

In Gant, the Court addressed the scope of the “search-incident-to-arrest” exception to the warrant requirement established in Chimel v. California.  In Chimel, the Court held that police may, incident to an arrest, search the area within the arrestee’s immediate control, i.e., the area from within which he might gain possession of a weapon or destructible evidence.  In New York v. Belton, the Court extended the rule, holding that police may also search the passenger compartment of the vehicle from which an arrestee was taken.  Most lower courts understood Belton to permit a vehicle search incident to arrest even when there was no real possibility that the arrestee could gain access to the vehicle at the time of the search.  Some courts even allowed a search under Belton when the handcuffed arrestee had already left the scene.

Gant presented an opportunity to narrow this construction of the Belton rule.   Continue reading “4 to 1 to 4”

Fairness in Federal Cocaine Sentencing Policy

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As is notorious, federal law treats one gram of crack cocaine the same as 100 grams of powder cocaine. Thus, a defendant caught with five grams of crack faces the same five-year mandatory minimum prison term as a powder cocaine offender in possession of 500 grams; 50 grams of crack produces the same ten-year minimum as five kilograms of powder. Despite a steady stream of criticism from academics, judges, and the United States Sentencing Commission over the past 20 years, Congress has declined to revisit the 100:1 ratio. In 2007, the Commission took a small step towards remedying the imbalance, reducing crack sentences under the advisory federal sentencing guidelines (which also contained a 100:1 crack/powder disparity) by two levels, then designating the amendment for retroactive application. As a result, thousands of federal crack prisoners received sentence reductions averaging about 17 percent. However, as the Commission itself acknowledged, true reform would require Congress to modify the 100:1 ratio and the resulting statutory mandatory minimum terms. Based on a change in position by the last major player supportive of the 100:1 disparity, the United States Department of Justice, that reform may, finally, be imminent.

In recent testimony before the Senate Judiciary Committee, Subcommittee on Crime and Drugs, Assistant Attorney General Lanny Breuer indicated that the Administration “believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.” It is too soon to tell whether Congress will completely eliminate the disparity, as the Justice Department appears to advocate, or merely narrow it to, say, 10:1 or 20:1, as the Commission and some legislators have previously recommended. Whatever it elects to do, Congress should consider retroactive application of the statutory change. Experience under the Commission’s recent crack guideline amendment shows that courts are well-equipped to apply the change to existing sentences. Continue reading “Fairness in Federal Cocaine Sentencing Policy”