Case in point: The Bad Marriage case (first court decision here).
Mr. Bad Marriage (he is a Native American and this is his real name), while on release from jail on a misdemeanor matter to attend an AA meeting, brutally beat his ex-girlfriend to a pulp. He was also accused initially of anal rape, but those charges were withdrawn when the girlfriend refused to cooperate and he pleaded guilty instead to assault causing serious bodily injury.
He had 95 prior convictions (35 in state court and 60 in tribal court), mostly for misdemeanors for which he served little or no jail time, steadily from the time he turned nineteen to the time he was convicted of his current crime, a 14 year period. At least one of the prior convictions was for felony burglary (in 1989), four were for simple assaults, a couple dozen were for minor dollar value shoplifting and trespassing incidents. Several dozen convictions were for disorderly conduct and public drunkenness.
In Colorado, this would be a second degree assault, a class four felony, for which the normal presumptive sentencing range is two to six years in prison and three years of parole. But, this crime would be classified as a crime of violence, bringing the range from five to sixteen years in prison, and forbidding the imposition of a mere fine, as a result of three different sentence enhancement provisions. Colorado law would not change this range at all based on his prior criminal history.
The average sentence for this crime in Colorado is 6.2 years, but it is likely that Mr. Bad Marriage would have received a significantly higher sentence within the five to sixteen year range, given the outrage of the trial judge at the brutality of the event (including a likely belief that this may really have been a rape, despite the fact that the charge was withdrawn), his long criminal history (even though it is not a formal aggravating factor in determining the sentencing range), his habit of preying on the defenseless, his lack of remorse, and what the judge thought was a likelihood that he would reoffend with another violent crime.
The sentencing guidelines recommendation for this crime was 27 to 33 months in prison. The judge made an upward departure based upon his lengthy rap sheet, despite the fact that the misdemeanors didn't normally count for much under the guidelines, to 41 months, which the 9th Circuit disapproved of, and he was sent to be resentenced. Booker intervened making the sentencing guidelines advisory, and on remand he received a 48 month sentence which was affirmed on appeal, noting aggravating factors other than his criminal history. A dissenting opinion in the final appeal argues that too much liberty was taken with the previous appellate decision using the excuse of Booker, but that is beyond the scope of this post.
Drug Cases Compared
The point that is more important, than the ups and downs of Bad Marriage's appellate experience, is that the minimum sentence for selling even $700 marijuana involving just two $350 sales, while having a gun on your person, in the federal system is 55 years.
Or, consider this case:
The crime for which he was convicted was conspiracy to distribute 50 grams or more of crack, 500 grams of more of cocaine, and some marijuana, within 1000 feet of two playgrounds. He was also observed possessing, but not brandishing or firing a handgun, in and around Waterloo, Iowa. The judge believed that he lied on the stand to the jury, but didn't specify when.
The sentence was life in prison.
Or this case:
[F]or possession of less than 2 ounces of marijuana. . . . The defendant cooperated with police and the undisputed facts were that the pot was intended to ease the suffering of a friend who had M.S., a degenerative nerve disease . . . And, what were the aggravating prior convictions that justified such an incredible sentence in this case: involuntary manslaughter, which arose out of a drunk driving car accident in 1990 (which was classified as a "crime of violence"), and selling one-quarter ounce of marijuana for fifty dollars in 1998 (which was classified as "drug trafficing").
The sentence was eight years in prison.
Or this case:
Powell was, in the words of a prosecutor, a "worker bee" for his boss, a crack dealer named Leon Henry. Both were arrested as a result of their dealings with the confidential informant and both were convicted of dealing in 50 or more grams of crack cocaine. . . . [he had] two prior crack cocaine possession convictions ,
His prior crimes took place seven months apart, more than twelve years prior to the most recent conviction. The sentence for this a 32-year-old with an IQ of 72 was life without possiblity of parole, a sentence reserved in Colorado for particularly egregious murders, and for kidnappers who harm their victims.
Or this case:
[F]or possession with intent to distribute fifty grams or more of cocaine base . . .
He had 251 grams of crack on his person (about a cup). A judge, not a jury, enhanced his sentence finding, on thin heresay evidence, that he had cocaine in an uncharged incident in Utah and that he had a gun with him at that time, and that there was more cocaine sold than in the case proved to the jury. The sentence was life in prison.
Even the outrageously harsh courts of places like Bali, Indonesia aren't as harsh. An Australian there was sentenced to fifteen years in prison for possession of ten pounds of marijuana.
In the Colorado courts, the average sentence for a Class 2 felony drug offense (the highest possible grade) is 12.3 years, for a Class 3 felony drug offense it is 7 years, for a class 4 felony it is 3.6 years, for a Class 5 felony drug offense it is 2.2 years, and for a Class 6 felony drug offense it is 1.4 years.
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