Thursday, July 01, 2004

USA v. Fanfan - Drug Quantity

It appears as though federal drug law has met Blakely for the first time. On June 28th, Federal District Judge D. Brock Hornby of Portland, Maine applied the new Blakely rule to a defendant’s sentencing for conspiracy to distribute controlled substances.

Fanfan was charged with conspiracy to distribute cocaine powder. The jury verdict stated that Fanfan was guilty of a conspiracy involving at least 500 grams of cocaine power. The base offense level for such a crime is 26 (63-78 months).

Judge Hornby reasoned that Blakely constrained his sentencing discretion to the jury’s finding that Fanfan was responsible for at least 500 grams of cocaine powder. As a result of that limitation, he concludes that he may not consider Fanfan’s leadership role or any enhancements for the involvement of crack cocaine as relevant conduct.

Judge Hornby calculates that Fanfan’s sentence pre-Blakely would have been in the 188 to 235 month range (an offense level of 36), but given the restrictions imposed by Blakely, he sentenced Fanfan to 63-78 months, which represents the guideline range for at least 500 grams of cocaine powder.

A transcript of the Sentencing Hearing can be accessed here. Below, you’ll find a few key excerpts from the hearing.

“Now if that reasoning of Blakely applies here, all the jury verdict permits us to conclude in this case is that Mr. Fanfan was guilty of a conspiracy and that it involved at least 500 grams of cocaine powder.

The verdict from the jury permits no conclusion as to how much above the 500 grams the conspiracy involved. The jury verdict does not permit us to reach a conclusion about crack cocaine. Crack cocaine was not even charged in the indictment. And the verdict does not permit us any conclusion as to this defendant’s leadership role in the conspiracy.”

“Accordingly, following Blakely, I conclude that it is unconstitutional for me to apply the federal guideline enhancements in the sentence of Duncan Fanfan, which is to say, an increase in the drug quantity beyond that found by the jury, or any role enhancement. To do so would unconstitutionally impinge upon Mr. Fanfan’s Sixth Amendment right to a jury trial as explained by Blakely.

I therefore cannot follow the federal sentencing guidelines in those respects which involve drug quantity and role enhancement. Instead, I’m going to sentence the defendant based solely upon the jury verdict in this case.”

“Here the jury was asked to define -- to find the scope of the conspiracy by way of drug quantity, it was not asked that precise question, but I find that there is no other way to interpret its verdict given the facts, testimony, the evidence that was presented to the jury.

The whole case against this defendant that the jury heard was that he was the sole source of all of the drugs. And so this is not an instance where the jury could have assigned responsibility to this defendant for amounts some other member of the conspiracy had been involved in he had not, instead, the drugs all originated with him.”

“So the guideline range that I will use as I say is the 63 to 78 months.”

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