06 November 2007

Crack Sentencing

There is nothing exceptional about the following criminal conviction that was affirmed in an opinion made available today from the 10th Circuit. Indeed, no challenge to the sentence was discussed in the opinion.

Imon Wright was convicted at jury trial of conspiracy to distribute and to possess with intent to distribute more than 50 grams of a mixture containing cocaine base, or crack cocaine . . . . the conspiracy count on which Wright was convicted, charged that he had conspired with the two other named defendants, Kenneth Robinson and Jerry Robinson, along with other persons known and unknown. . . . from on or about April 27, 2004, to April 30, 2004.

The jury declined to find that the Defendant guilty of "unlawfully possessing two pistols during and in relation to the conspiracy."

Defendant was sentenced to 210 months [i.e. 17.5 years] imprisonment to be followed by five years supervised release, and ordered to pay a special assessment of $100.

Note that the judge was entitled to, and probably did, consider the gun possession charge in imposing the sentence despite the fact that the jury did not find that this happened. There is no discussion of the Defendant's criminal history. Several errors that favored the prosecution took place in the conduct of the trial, but those were held to be harmless errors.

This case was decided under federal law for an offense committed in Kansas. Colorado law would provide a more lenient punishment for that offense. As I understand it, cocaine and crack are both Schedule II drugs under state law. Distribution of a class II drug is a class 4 felony, unless the offender has a prior conviction in which case it is a class 2 felony. But, conspiracy to commit that crime would be either a class 5 felony for a first offender, or a class 3 felony for a repeat offender.

Assuming without research (a pro-prosecution assumption) that the "extraordinary risk" enhancements apply to conspiracy cases as well as convictions of the primary crime, the sentencing ranges are:

Class 3: four to sixteen years plus five years mandatory parole.
Class 5: one to four years plus two years mandatory parole.

Departure below the minimum sentence would not be allowed in this case in Colorado (making the pro-prosecution assumption that the limits that apply to the primary crime also apply to a conspiracy count based upon it). The fine would be $1,000 to $500,000 and would likely result in a driver's license suspension as well.

It is also quite possible that the defendant would have been acquitted in Colorado because, in Colorado courts, "A person may not be convicted of conspiracy to commit an offense if he is acquitted of the offense which is the object of the conspiracy where the sole evidence of conspiracy is the evidence establishing the commission of the offense which is the object of the conspiracy."

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