The U.S. Supreme Court made three sentencing rulings today. Two are largely irrelevant to Colorado. A third will impact many federal drug cases by producing harsher sentences for defendants with prior convictions for drug misdemeanors.
* In Baze v. Rees, the high court upheld a specific execution protocol, and the pendency of this case has produced a de facto execution moritorium in the United States. The fractured opinions included a three justice plurality opinion that sets a fairly clear and lenient standard for execution protocals. Two more justices concurred in result but argued for an even more deferrential standard. Thus, the plurality opinion standard is sufficient to receive majority support for an execution protocol going forward.
But Baze has very little impact on Colorado because the state has only two men on death row, neither of whom are close enough to execution for Baze to delay their executions. One is a death penalty volunteer, the other, a Chucky Cheese mass murderer, is nearing the end of his appeals. If Baze had been decided the other way, Colorado would have had plenty of time to make adjustment to its execution protocal, if necessary, to comply with the case's demands.
* In Begay v. United States the high court held that felony DUI is not a violent felony under the armed career criminal act. This is irrelevant in Colorado because the most serious penalty available for DUI in Colorado is 1 year in jail. Colorado has vehicular assault and vehicular homicide statutes which are felonies, but not a felony for a mere repeat DUI offender.
* The high court's ruling in Burgess v. United States, in contrast, which was unanimous, will have a major impact in Colorado. It held that a drug offense punishable by more than one year in prison is a drug felony for federal drug sentencing purposes, even if it is classified as a misdemeanor under state law. The law in question was substantially similar to the class 1 misdemeanor laws in Colorado in all pertinent respects.
All of Colorado's non-marijuana drug misdemeanors are class 1 misdemeanors punishable by up to two years in jail, even though sentences of a year or more are unusual in such cases. So all non-marijuana misdemeanor drug convictions count as felonies for federal sentencing purposes, no matter how minor, or what sentence was imposed. Possession of one to eight ounces of marijuana is also a class 1 misdemeanor in Colorado (and hence a drug felony for federal sentencing purposes).
The only drug conviction in Colorado which will not count as a prior drug felony for federal sentencing purposes is poessions of less than one ounce of marijuana.
Under the pertinent federal law, a defendant with only prior misdemeanors faces a ten year minimum sentence on the current drug conviction, while a defendant with a prior drug felony (including almost all state law misdemeanor drug convictions in Colorado) faces a twenty year minimum sentence.
The classification issue was the subject of a circuit split with the 4th and 5th Circuits taking the position that ultimately prevailed, and the D.C. Circuit taking a more lenient position. The 10th Circuit did not have binding precedent on this issue prior to today's ruling.
Federal Mandatory Minimums In Drug Cases In A Nutshell
Federal mandatory minimums for drug offenders are summarized here, but do not apply to defendants who have prior state drug convictions in Colorado (other than less than an ounce of marijuana).
A unarmed non-violent defendant with no prior misdemeanor or felony drug conviction possessing the lower tier quantity of drugs in question faces a mandatory minimum five year sentence. A "safety value" sentence is available to defendants with no prior drug convictions who do not possess firearms, did not engage in violence, and have only minimal prior criminal records if the defendant discloses all of his involvement to the Government. Typically, a defendant with a low tier possession amount who qualifies for the safety value will receive a 30-37 months sentence pursuant to the sentencing guidelines.
An unarmed non-violent defendant with no prior misdemeanor or felony drug conviction possession the higher tier quantity of drugs in question faces a mandatory minimum ten year sentence. The safety value is also available for defendants in this category, although the guideline sentence is likely to be marginally longer for defendants in this category who qualify for the safety valve.
A unarmed non-violent defendant with one prior misdemeanor or felony drug conviction in Colorado possessing the lower tier quantity of drugs in question faces a mandatory minimum ten year sentence.
An unarmed non-violent defendant with one prior misdemeanor or felony drug conviction in Colorado possession the higher tier quantity of drugs in question faces a mandatory minimum twenty year sentence.
An unarmed non-violent defendant with more than one prior misdemeanor or felony drug conviction in Colorado possession the higher tier quantity of drugs in question faces a mandatory life sentence.
The lower tier and higher tier amounts by type of drug are as follows:
First tier
LSD 1 gram. 10 to 20 doses if carrier weight included.
Marijuana 100 plants or 100 kilos.
Crack cocaine 5 grams. 1 to 10 day supply for heavy user.
Powder cocaine 500 grams
Heroin 100 grams
Methamphetamine 5 grams. 3 to 10 day supply for heavy user.
PCP 10 grams
Second tier
LSD 10 grams
Marijuana 1000 plants or 1000 kilos
Crack cocaine 50 grams
Powder cocaine 5 kilos
Heroin 1 kilo
Methamphetamine 50grams
PCP 100 grams
Equal weights of crack cocaine and powder cocaine have essentially the same chemical effect. As a result, the crack cocaine mandatory minimums apply for a much smaller number of typical doses of the drug than any of the other mandatory minimum guidelines.
Possession of a gun during a drug offense, even if not brandished, adds five years to the mandatory minimum sentences described above (or more if the individual is a felon prohibited from possessing a gun under federal law).
Subtantial assistance reductions are permitted with prosecutorial permission for cooperating in the prosecution of another.
Good time can reduce a mandatory minimum sentence by up to about 15%.
The vast majority of mandatory minimum sentences in the federal system involve one of the minimum sentences described above, or firearms possession by someone prohibited by federal law from possessing a firearm. There are, however, also a number of other far less frequently used federal mandatory minimum sentence provisions, such as one for organized crime cases.
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