SENTENCING: VIEWS FROM THE BENCH
Hon. Anthony J. Trenga
Hon. Michael F. Urbanski
****
Geremy C. Kamens, Moderator
DISCUSSION OVERVIEW
I.
Comments by Judge Trenga
II.
Comments by Judge Urbanski
(continued...)
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III.
Questions From the Audience
IV.
Recommended Reading
United States v. Cabrera, 567 F. Supp. 2d 271 (D. Mass. 2008)
United States v. Hayes, 948 F. Supp. 2d 1009 (N.D. Iowa 2013)
United States v. Dossie, 851 F. Supp. 2d 478 (E.D.N.Y. 2012)
(Gleeson, J.)
United States v. Diaz, No. CR-00821-2, 2013 WL 322243 (E.D.N.Y.
Jan. 28, 2013) (Gleeson, J.)
United States v. Kupa, No. 11-CR-345, 2013 WL 5550419 (E.D.N.Y.
Oct. 9, 2013) (Gleeson, J.)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
UNITED STATES OF AMERICA
v.
Case No. 5:13CR7
ROBERT JOHN MORRIS
DEFENDANT’S SENTENCING MEMORANDUM
Robert Morris pled guilty to a single count of possessing with intent to distribute
methamphetamine. Morris‟ sentencing range under the drug guideline is 37-46 months. If he is
found to be a career criminal, his guideline sentencing range increases more than five-fold to
188-235 months. 1 The current offense and Morris‟ history do not warrant such an extreme
swing in sentencing ranges. Accordingly, Morris seeks a variance under the factors in 18 U.S.C.
§ 3553(a).
I. ARGUMENT
A.
Sentencing Authorities
Federal sentencing is guided by the overarching principle that a district court impose a
sentence that is “sufficient, but not greater than necessary” to achieve the following goals: reflect
the seriousness of the offense, promote respect for the law, provide just punishment, deter future
criminal conduct, protect the public, and provide necessary rehabilitation. 18 U.S.C. §
3553(a)(2); Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 570 (2007). In fashioning
an appropriate sentence, the Court must also consider the nature of the offense and
characteristics of the defendant, the kinds of sentences available, the sentencing guidelines, any
1
The government filed a sentencing enhancement under 21 U.S.C. § 851 in this case.
Without the § 851 enhancement, the total offense level is 29 (rather than 31) and the career
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pertinent policy statements, the need to avoid unwarranted sentencing disparities, and any need to
provide restitution. 18 U.S.C. § 3553(a)(1), (3)-(7).
Although a court should begin any sentencing by correctly calculating the guidelines
range, the guidelines are but one of many factors that a court must consider under § 3553(a). Gall
v. United States, 552 U.S. 38, 128 S. Ct. 586. 596 (2007). The sentencing guidelines are advisory,
United States v. Booker, 543 U.S. 220, 246 (2005), and a sentencing court may not presume them
to be reasonable. United States v. Nelson, 555 U.S. 350, 129 S. Ct. 890, 892 (2009)(per curiam);
see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Furthermore, the guidelines
do not dictate what constitutes a reasonable sentence. United States v. Olhovsky, 562 F.3d 530,
550 (3d Cir. 2009). A sentencing court may vary from the guidelines based on a categorical
disagreement with a particular guideline -- such as the career offender guideline -- that does not
properly reflect the § 3553(a) factors, or it may vary because given the individual characteristics
of a particular case, the guidelines recommend an excessive sentence. See Kimbrough, 128 S. Ct.
at 570, 576; United States v. Tomko, 562 F.3d 558, 571 (3d Cir. 2009)(en banc).
There is no limitation on the information a court may consider in determining an
appropriate sentence. 18 U.S.C. § 3553; United States Sentencing Guidelines Manual (“U.S.S.G”)
§ 1B1.4 (2008). Matters such as age, education, mental or emotional condition, medical condition
(including drug or alcohol addiction), employment history, lack of guidance as youth, family ties,
or military, civic, charitable, or public service are not ordinarily considered under the Guidelines.
“These are, however, matters that § 3553(a) authorizes the sentencing judge to consider.” Rita v.
United States, 551 U.S. 338, 365 (2007) (Stevens, J., concurring) (citations omitted); accord
offender guideline range is lowered to 151-188 months.
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United States v. Chase, 560 F.3d 828, 830-31 (8th Cir. 2009). The Supreme Court observed, “[i]t
has been uniform and constant in the federal judicial tradition for the sentencing judge to consider
every person as an individual and every case as a unique study in the human failings that
sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United
States, 518 U.S. 81, 113 (1996). A sentence that focuses only on the offense and not the
individual characteristics of the defendants or the other § 3553(a) factors is unreasonable.
Olhovsky, 562 F. 3d at 549. Thus, sentencing courts are charged with the duty to consider the
specific characteristics of the defendants, as well as of the offense, in determining an appropriate
sentence.
B.
Sentencing Guidelines and Pertinent Policy Statements (18 U.S.C. § 3553(a)(4) & (5))
Properly calculating the guidelines is the starting point of any sentencing. The
Presentence Investigation Report (“PSR”) states that Morris‟ total offense level under the drug
guideline, § 2D1.1, is 15. (PSR, ¶ 15). With a criminal history of V (PSR, ¶32), the guideline
range would be 37-46 months. The PSR, however, concludes that Morris qualifies as a career
offender under ¶ 4B1.1. If this is correct, his total offense level, factoring the enhancement filed
by the government under 21 U.S.C. § 851, is 31 and his criminal history category is VI, which
results in a guideline range of 188 to 235 months. As noted above, without the § 851
enhancement, the guideline range would be 151-188 months. The predicate convictions are two
drug offenses identified in Paragraphs 26 and 29 of the PSR.
1. The Career Offender Guideline Overstates the Seriousness of the Current
Offense and Morris’ Criminal History.
Designating Morris as a Career Offender under the guidelines has a devastating impact on
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his sentencing range. The chart below compares the sentencing options under the drug guideline,
§ 2D1.1, and the career offender guideline, § 4B1.1:
Guideline
Sentencing Range for
Criminal History V
Sentencing Range for
Criminal History VI
2D1.1 for
methamphetamine
(actual)
2D1.1 for
14-2 = 12
methamphetamine
(mixture)
4B1.1
32-3=29
37-46 Months
41-51 Months
27-33
30-37
N/A
151-188 Months
4B1.1 with §851
N/A
188-235 Months
Enhancement
Offense Level with
Acceptance of
Responsibility
18-3 =15
34-3=31
A sentence under the career offender guideline significantly overstates Morris‟ criminal
history and the details of the current offense. Morris‟ two predicate drug convictions involved
small amounts of drugs and no violence. In the 2001 offense, Morris distributed .88 grams of
methamphetamine. (PSR, ¶ 26). In the 2008 offense, Morris distributed five methadone pills.
(See Attached Exhibit). Both of these convictions involved small amounts of drugs and present a
picture of Morris as a low-level, street dealer. In the current offense, Morris, an admitted
methamphetamine user, possessed less than 3.5 grams of methamphetamine. (PSR, ¶ 5).
The circumstances of this case and Morris‟ criminal history distinguish him from an
offender for which the career offender enhancement should apply. For cases like this one that
involve a non-violent, street-level dealer, the Fourth Circuit has noted, “[a]pplication of the career
offender guideline is „fraught with potential imprecision.‟” United States v. Moreland, 437 F.3d
424, 436 (4th Cir. 2006)(quoting United States v. Adkins, 937 F.2d 947, 952 (4th Cir. 1991)). At
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one end of the career criminal spectrum is the low-level street dealer who handles only small
amounts of drugs; at the other is the drug kingpin or violent recidivist. Id. Yet, the career
offender guideline sweeps broadly, subjecting both the kingpin and the street dealer to the same
punishment.
Congress did not intend to punish low-level drug dealers with few resources when they
created the harsh career offender penalties, but, by casting such a wide net, many low-level
offenders are severely affected. Unlike many of the other guidelines, the Career Offender
guideline was not based on empirical data of average sentences, but instead could be regarded as
resulting from an “imprecisely implemented Congressional mandate and is entitled to
considerably less deference than those guidelines where the Sentencing Commission has
exercised its institutional expertise and utilized empirical data.” United States v. Newhouse, 919
F. Supp. 2d 955 (N.D. Iowa 2013). Instead of being based on empirical data, the Career
Offender guidelines arose from Congress‟ statutory directive to set higher sentencing ranges for
certain recidivist offenders. Specifically, Congress intended to target offenders committing drug
trafficking offenses “involving large amounts of narcotics” and substantial amounts of money
who were flight risks because they could easily post “bond in the hundreds of thousands of
dollars” and flee to a country where they “have established substantial ties outside the United
States from whence most drugs are imported.” United States v. Whigham, 745 F.Supp.2d 239,
247-248 (citing S.Rep.No. 98-225(1983), reprinted in 1984 U.S.C.C.A.N. 3182). Morris does not
remotely fit the profile of the intended target of the Career Offender guideline but was swept in by
the Sentencing Commission‟s broad implementation of Congress‟ directive. Accordingly,
“[d]istrict courts should not be overly shy about concluding that particular defendants, even if
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third-time drug sellers, do not have the profile Congress and the Commission had in mind when
they directed that sentences for career drug offenders be set at or near the top of the statutory
range.” United States v. Pruitt, 502 F.3d 1154, 1172 (10th Cir. 2007)(McConnell, J., concurring),
vacated for reconsideration, 552 U.S. 1306 (2008). A “growing chorus” of federal judges have
rejected applying the Career Offender guidelines in cases such as Morris‟ involving low-level
drug offenders. United States v. Newhouse, 919 F.Supp.2d 955, 967 (N.D. Iowa 2013)(citing
Moreland, 568 F.Supp.2d at 688; Whigham, 754 F.Supp.2d at 247-48 (D.Mass. 2010); United
States v. Merced, 2010 WL 3118393, at *4 (D.N.J. Aug. 4, 2010); United States v. Woody, 2010
WL 2884918, at 9 (July 20, 2010); United States v. Patzer, 548 F.Supp.2d 612, 617 (N.D.Ill.
2008); United States v. Malone, 2008 WL 6155217, at *4 (E.D.Mich. Feb. 22, 2008); United
States v. Fernandez, 436 F.Supp.2d 983, 988-90 (E.D.Wisc. 2006); United States v. Naylor, 358
F.Supp.2d 521, 524 (W.D.Va. 2005); United States v. Serrano, 2005 WL 1214314, at *8
(S.D.N.Y. May 19, 2005); United States v. Carvajal, 2005 WL 476125, at *5 (S.D.N.Y. Feb. 22,
2005); United States v. Poindexter, 550 F.Supp.2d 578, 580-581 (E.D.Pa. 2008).
As discussed further below, the Career Offender guideline does not accurately reflect the
nature and circumstances of the offense or Morris‟ history and characteristics. See 18 U.S.C. §
3553(a)(1). After Booker, the Court is free to disagree with the advisory sentencing guidelines,
including the career offender guideline, based on policy disagreements and where they do not
achieve the factors set forth in § 3553(a). United States v. Collins, 474 Fed.Appx. 142, 144 (4th
Cir. 2012); United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)(citing Kimbrough, 128 S.Ct. at
574-75); United States v. Boardman, 528 F.3d 86, 87 (1st Cir. 2008); United States v. Sanchez,
517 F.3d 651, 662-63 (2d Cir.2008); United States v. McLean, 331 Fed.Appx. 151, 152 (3d Cir.
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2009); United States v. Michael, 576 F.3d 323, 327-28 (6th Cir. 2009); United States v. Corner,
498 F.3d 411, 416 (7th Cir. 2010)(en banc); United States v. Gray, 577 F.3d 947, 950 (8th Cir.
2009); United States v. Mitchell, 624 F.3d 1023, 1028-30 (9th Cir. 2010). Thus, where the career
offender guideline recommends a sentence greater than a court, after considering the advisory
guidelines range, may impose a sentence that more accurately reflects the § 3553(a) factors in a
particular case. United States v. Corner, 598 F.3d 411, 415-16 (7th Cir. 2010)(en banc); United
States v. Sanchez, 517 F.3d 651, 667-68 (2d Cir. 2008). The Court should impose a sentence in
this case outside of the range recommended by the career offender guideline.
2. Departure Based on Inadequacy of Criminal History (U.S.S.G. § 4A1.3)
If the Court determines that the Career Offender guideline recommends a range that is
greater than necessary to achieve the goals of sentencing in Morris‟ case, the guidelines do not
leave the Court without guidance if the Court feels that the alternative sentencing range
recommended by § 2D1.1 is too low taking the § 3553(a) factors into consideration. U.S.S.G. §
4A1.3 provides that “if reliable information indicates that the defendant‟s criminal history
category substantially underrepresents the seriousness of the defendant‟s criminal history or the
likelihood that the defendant will commit other crimes, an upward departure may be warranted.”
U.S.S.G. § 4A1.3(a)(1). The guideline goes on to suggest the types of information that might
form the basis for such an upward departure, including prior sentences not used in computing the
criminal history. U.S.S.G. § 4A1.3(a)(2). Finally, the guideline states that to determine the extent
of such a departure, the court should either use a higher criminal history category to determine an
appropriate sentencing range or, in a case in which the extent and nature of the defendant‟s
criminal history are sufficient to warrant an upward departure from Criminal History category VI,
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the court should move incrementally down the sentencing table to find an appropriate range.
Morris concedes that he has a long history of trouble with the law. Although his criminal
record directly correlates to his own drug addiction and is likely to be controlled in the future
through his participation in drug treatment, he recognizes that he needs to be punished.
Increasing his criminal history category from V to VI and increasing his base offense level by 16
levels results in a sentencing range as the career offender guidelines direct, however, results in
unjustifiably harsh sentence because that range is intended for a hardened, high-level drug dealer.
Rather, a sentence in the range of 57-71 months reflects an appropriate sentence in this case. This
sentencing range takes into account that Morris‟ criminal history may be inadequately represented
by criminal history category V and is achieved by increasing Morris‟ criminal history to VI and
increasing his total offense level to 18 (a three-level increase from the § 2D1.1 range).
C.
Nature and Circumstances of the Offense and History and Characteristics of the
Defendant (18 U.S.C. § 3553(a)(1))
1.
The Offense
Robert Morris was a low-level drug user and seller. Morris was found in possession of 3.4
grams of methamphetamine, of which 1.5 grams was “actual” methamphetamine, as opposed to a
mixture containing methamphetamine. There is no evidence that Morris had the slightest idea
how much of the 8-ball of meth that he possessed was “actual” methamphetamine versus just a
“mixture containing methamphetamine.” There is no evidence that he was involved in any way in
the manufacture, production, or packaging of the meth that he received for his use and for resale.
The fifteen year, 8 month sentence recommended by the government and by the low-end of the
guideline range represents more than one year in prison for each tenth of a gram of actual meth
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possessed by Morris.
2. The Defendant
Robert Morris is a 39 year old man who has a long-standing substance abuse problem.
(PSR, ¶ 42). All of the serious convictions on his prior criminal record relate to his own struggle
with substance abuse.
Morris grew up with his mother and four half-siblings. He never had any significant
contact with his biological father. Although he described his childhood as “unremarkable” with
“no abuse” to the Probation Officer who interviewed him for his PSR, his childhood was in fact
wrought with instability due to the absence of his father in his life and due to the multiple moves
his family made over the years. He was born in Baltimore and then moved to Nelson County,
Virginia as a young boy. In junior high, he moved to Staunton for one year, followed by a move
to Grottoes, Virginia for a year and then a move back to Staunton. In his late teens, the family
settled in Greenville, Virginia and he has lived in the Greenville area since that time, with the
exception of three years that he lived in Radford, Virginia with his wife in the late 1990s. His
family‟s residential instability was related to his mother‟s relationships with various men over the
years.
When Morris was a boy, he played sports and did not use drugs. However, he began using
marijuana at age 17 and started what became a lifetime of drug abuse. Soon after he started using
marijuana, Morris‟ use escalated to the point where he was smoking an ounce of marijuana every
two days. It was in this context of his own heavy marijuana use that he received his first drug
conviction in 1993 for distribution of marijuana. He received a five year sentence; however,
because parole had not yet been abolished in Virginia at that time, he served only a fraction of
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that sentence in custody. He was released to parole supervision and ultimately was successfully
released from both parole and probation supervision.
Unfortunately, though, Morris was introduced to methamphetamine when he was 27 years
old. He has been fighting its addictive grip ever since. As with his use of marijuana, Morris‟ use
of methamphetamine quickly escalated to the point where he was using a half gram per day. In
2002, over a decade ago and again in the context of his own use of methamphetamine, Morris was
convicted of distributing less than a gram of methamphetamine -- .88 grams to be exact. (PSR, ¶
26). He has struggled to stay away from methamphetamine since that time; however, he has
never had the benefit of participating in substance abuse treatment.
In 2008, after Morris had relapsed on methamphetamine yet again, he obtained some
methadone pills because he had heard from others that methadone would help him kick his
methamphetamine habit. He used some of the pills in an effort to wean himself from meth, and
he sold some of the pills. He was convicted of selling five methadone pills in 2008.
Unfortunately, his use of methadone did not help him quit methamphetamine as he had been told
it would.
Despite his addiction to meth, Morris has worked steadily over the years. Since he was
released from custody in January, 2011 after serving his sentence for distributing methadone,
Morris has been gainfully employed at Wendy‟s restaurant in Raphine and doing construction and
temporary work. He was committed to his sobriety and was successfully able to refrain from
using drugs for almost two years. In fact, he left his construction job and returned to his job at
Wendy‟s because a number of his co-workers on the construction sites were using drugs at the
workplace and he did not want to relapse. Despite his efforts to stay clean, however, Morris
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relapsed in December, 2012 and again began using methamphetamine, which again led to his
involvement in the instant offense and his arrest on January 30, 2013.
Morris has a sincere desire to live a sober and crime free life. He has never been involved
in formal substance abuse treatment and believes that he would benefit from participating in a
program that will help him develop skills to use to stay away from drug use. The PSR documents
that Morris was diagnosed in 1995 with ADHD and personality disorder while he participated in a
program at Woodrow Wilson Rehabilitation Center. Unfortunately, this diagnosis was never
conveyed to Morris or his mother, who both suspect that Morris‟ recurring struggles with drug
abuse may be a subconscious effort at self-medication on Morris‟ part. Because Morris was
unaware of his mental health diagnoses, he never received treatment, counseling, or medication
for his mental health problems over the years.
D.
Reflect the Seriousness of the Offense, Promote Respect for the Law, and Provide
Just Punishment (18 U.S.C. § 3553(a)(2)(A))
While possession with the intent to distribute methamphetamine is a serious offense, the
sentencing range recommended by the Career Offender guidelines suggest a punishment that
reflects a far more serious offense than the one committed by Morris. Morris only possessed 3.4
grams of a mixture containing methamphetamine, yet his base offense level of 34 under the career
offender guidelines equates to the base offense level of someone possessing at least 1.5-5
kilograms of methamphetamine or 150-500 grams of actual methamphetamine. Like the
defendant in United States v. Whigham, “there is no question that [Morris] is a Career Offender
under the Guidelines, §4B1.1, [but] there is also no question that the career offender guidelines
are flawed.” United States v. Whigham, 754 F.Supp. 2d at 247.
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The Career Offender status seriously overstates Morris‟s criminal history. The two
offenses that qualified Morris for Career Offender status are drug offenses involving very small
amounts of drugs, one for .88 grams of meth and the other for just five pills. Congress intended
the career offender guidelines as applied to drug felonies to target “drug trafficking offense[s]”
involving very large amounts of narcotics and offenders with large amounts of resources. United
States v. Whigham, 754 F.Supp.2d at 248. Morris is a street level dealer who did not make much
money from the sale of drugs and was motivated in large part by his desire to support his own
drug habit. It is absurd to sentence Morris under the Career Offender guidelines when the amount
of drugs involved in the crimes qualifying him for career offender “would rattle around in a
matchbox”. United States v. Moreland, 568 F.Supp.2d 674, 687 (S.D.W. Va. 2008). Morris
supported himself by working consistently over the years. At the time of the instant offense, he
worked at Wendy‟s. He was not making a “career” out of selling drugs, often only selling to feed
his own addiction.
Applying the severe Career Offender guidelines to Morris would not promote respect for
the law and may even breed disrespect for the law. In Gall, the Supreme Court noted that “a
sentence of imprisonment may work to promote not respect, but derision, of the law if the law is
viewed as merely a means to dispense harsh punishment without taking into account the real
conduct and circumstances involved in sentencing.” Gall v. United States, 128 S. Ct. at 599.
Sentencing Morris to 188 months or more in prison for just 3.4 grams of methamphetamine is
extremely harsh and seems unjust. Sentencing him to 57-71 months would be just punishment for
his offense, taking his criminal background into consideration, and would reflect the seriousness
of his crime while promoting respect for the law.
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E.
Adequate Deterrence (18 U.S.C. § 3553(a)(2)(B))
In addition to reflecting the seriousness of an offense and the need to protect the public, a
sentence must be sufficient, but not greater than necessary, to deter the individual who is being
sentenced as well as the general public from committing crimes. The Sentencing Commission has
recognized that imposing a lengthy prison sentence on a low-level street dealer does little to
protect the public or deter others from committing crimes:
Unlike repeat violent offenders, whose incapacitation may protect the public from
additional crimes by the offender, criminologists and law enforcement officials testifying
before the Commission have noted that retail-level drug traffickers are readily replaced by
new drug sellers so long as the demand for a drug remains high. Incapacitating a lowlevel drug seller prevents little, if any drug selling; the crime is simply committed by
someone else.
U.S. Sentencing Commission, Fifteen Years of Guidelines Sentencing, at 134 (Nov.
2004)(available on the Sentencing Commission‟s website at http://www.ussc.gov/
Research_and_Statistics/Research_Projects/Miscellaneous/15_Year_Study/chap4.pdf).
Similarly, there is no evidence that increases in sentences do in fact deter crime. “Three
National Academy of Science panels, all appointed by Republican presidents, reached that
conclusion, as has every major survey of the evidence.” Michael Tonry, Purposes and Functions
of Sentencing, 34 Crime and Justice: A Review of Research 28-29 (2006). Instead, research has
generally shown that “increases in the certainty of punishment, as opposed to the severity of
punishment, are more likely to produce deterrent benefits.” See Valerie Wright, Deterrence in
Criminal Justice: Evaluating Certainty vs. Severity of Punishment, The Sentencing Project (Nov.
2010) at 1 (hereinafter “Deterrence Study”), available at http://www.sentencingproject.org/doc/
Deterrence%20Briefing%20.pdf, (noting a study that found that longer prison sentences achieved
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only a three percent reduction in recidivism). So, the fact that Morris is being sentenced at all will
achieve the same amount of general deterrence, regardless of the length of his sentence.
F.
Protection of the public from further crimes (18 U.S.C. 3553(a)(2)(C))
Recidivism is an important element of deterrence and protecting the public. Although
Morris has a significant criminal history, the Career Offender guideline drastically overstates his
record and in this case produces a sentence greater than necessary to satisfy the purpose of
sentencing. The Sentencing Commission‟s 15 Year Report has shown that recidivism rates of
drug trafficking offenders sentenced under the career offender guidelines is much lower than
other offenders sentenced with a criminal history category of VI. See U.S. Sentencing Comm'n,
Fifteen Years of Guidelines Sentencing, An Assessment of How Well the Federal Criminal Justice
System Is Achieving the Goals of Sentencing Reform 134 (2004). In the report, the Commission
states the following:
The overall rate of recidivism for category VI offenders two years after release
from prison is 55 percent. (USSC, 2004). The rate for offenders qualifying for the
career criminal guideline based on one or more violent offenses is about 52
percent. But the rate for offenders qualifying only on the basis of prior drug
offenses is only 27 percent. The recidivism rate for career offenders more closely
resembles the rates for offenders in the lower criminal history categories in which
they would be placed under the normal criminal history scoring rules in Chapter
Four of the Guidelines Manual. Id.
Therefore, sentencing Morris under the normal criminal history scoring rules in the
guidelines manual would be a more appropriate sentence to achieve specific deterrence.
G.
Rehabilitation (18 U.S.C. § 3553(a)(2)(D))
18 U.S.C. § 3553(D) requires the court to consider the need for the sentence to provide the
defendant with needed educational or vocational training, medical care, or other correctional
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treatment in the most effective manner. Morris has a substance abuse problem, and though
incarceration is appropriate, too much incarceration will not allow for much rehabilitation. “The
Career Offender guidelines as applied to low-level, non-violent drug addicts fail to recognize that
drug treatment works to rehabilitate offenders and thus reduce recidivism.” United States v.
Newhouse, 919 F. Supp. 2d 955, 977 (N.D. Iowa 2013); (Citing Nat‟l Institute on Drug Abuse,
Nat‟l Institutes of Health, Principles of Drug Abuse Treatment for Criminal Justice Populations
(2006) (“[T]reatment offers the best alternative for interrupting the drug abuse/criminal justice
cycle for offenders with drug abuse problems.... Drug abuse treatment is cost effective in reducing
drug use and bringing about associated healthcare, crime, and incarceration cost savings” because
every dollar spent toward effective treatment programs yields a four to seven dollar return in
reduced drug-related crime, criminal costs and theft.)). If Morris‟s substance abuse problem is
treated, he has the potential to be a contributing member of society. As noted above, he has a
good work history and was working steadily at the time of the instant offense. He has done well
on supervision on the past and has demonstrated he can be a contributing member of society if he
can simply keep his drug addiction under control. A sentence of 57-71 months allows Morris the
opportunity to participate in the Residential Drug Abuse Program while he is incarcerated and to
continue with treatment on an outpatient basis while on supervised release, which is required for
six years upon his release from incarceration. (PSR, ¶ 52).
H.
The Need to Avoid Unwarranted Sentencing Disparities Among Similarly
Situated Defendants (18 U.S.C. § 3553(a)(6)
1.
Career Offender Guideline
At first glance, this factor seems to support adherence to the Guidelines because the
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Guidelines were created to eliminate unwarranted sentence disparities. “In practice, [however],
the focus of the Guidelines has gradually moved beyond elimination of unwarranted sentencing
disparities and toward the goal of eliminating all disparities” which is neither practical nor
desirable. United States v. Moreland, 568 F.Supp.2d at 687. Sentencing Morris below the
guideline range in this case would be a warranted disparity. The Career Offender Guidelines do
not distinguish sentences based on the seriousness of the prior or current offenses or based on the
roles of defendants in the offense. United States v. Newhouse, 919 F.Supp. at 978. Based on
career offender guidelines, a street dealer and a drug kingpin could be placed in the same
guideline range, regardless of the seriousness of the prior convictions. Id.
Importantly, in 2011, only 39.9% of defendants subject to the Career Offender guideline
were sentenced within it, while only 1.1% was sentenced above the range. Judges departed or
varied below the range in 26.6% of cases without a prosecution motion, and in 38.4% of cases
with a prosecution motion. United States v. Newhouse, 919 F.Supp. at 977. “The high-rate of
below-guideline sentences indicates widespread dissatisfaction with the severity of the career
offender guidelines by both judges and prosecutors. Id. Even if “the career offender guideline
concept makes eminent sense, the actual career offender guideline calculation results in sentences
[…] which are breathtakingly severe” and has caused the guidelines to be “widely criticized”.
United States v. Jones, 762 F.Supp.2d 270, 283-84 (D. Mass. 2010) aff’d, 689 F.3d 12 (1st Cir.
2012).
The sentencing disparities created by judges departing below the career offender
guidelines are warranted. Based on the other §3553 sentencing factors, defendants like Morris
should not be given the severe sentences that the Career Offender guidelines recommend.
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2.
§ 851 Enhancement
In this case, the government filed a sentencing enhancement against Morris pursuant to 21
U.S.C. § 851 based on his prior drug convictions which increased the maximum penalty for his
offense from 20 years to 30 years. Section 851 provides that a person convicted under 18 U.S.C.
§ 841 may be subject to increased punishment by reason of one or more prior drug trafficking
conviction only if the United States attorney files an information with the court. Significantly, the
filing of this enhancement increased Morris‟ base offense level under the Career Offender
guideline from level 32 (which applies to an offense carrying a statutory maximum of 20 years or
more but less than 25 years) to level 34 (which applies to an offense carrying a statutory
maximum of 25 years or more). U.S.S.G. §§ 4B1.1(b)(2) & (3). Thus, the effect of the § 851 in
Morris‟ case increases the Career Offender advisory guideline range from 151-188 to 188-235
months – a 27-month increase to the low-end of the guideline range and a 47-month increase to
the high-end of the guideline range. As noted above, the Career Offender guideline overstates the
seriousness of the present offense and Morris‟ prior criminal history. As enhanced, the guideline
range indefensibly and unnecessarily increases Morris‟ guideline range and its use in this case
creates an unwarranted disparity between Morris and other similarly situated, low-level,
nonviolent offenders. A sentence within or close to that range resulting from application of the
enhancement is greater than necessary to achieve the sentencing objectives set forth in 18 U.S.C.
§ 3553.
Judge Gleeson recently issued a sentencing opinion in a case in the Eastern District of
New York in which he outlined the history of the 851 enhancement and in which he expressed
serious concerns about the government‟s abuse of its power to file prior felony informations in
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drug trafficking cases. United States v. Kupa, -- F.Supp.2d – (2013), 2013 WL 5550419
(E.D.N.Y. Oct. 9, 2013). In his opinion, Judge Gleeson tracks the history of the § 851
enhancement and concluded that:
“In sum, [enactment of] § 851 reflected the recognition by Congress and DOJ that a prior
drug felony conviction was not per se evidence that a drug trafficking defendant was the
sort of hardened professional criminal who deserves an enhanced mandatory sentence.
Congress left it to prosecutors to identify the defendants who truly deserved the
enhancements that remained after 1970. Whereas the previous statutory scheme made no
distinctions among (for example) professional criminals, street-corner dealers, and addicts
whose pay for participating in the offense consisted solely of the drugs to support their
habits, § 851 trusted prosecutors to take into account such individual circumstances,
vesting them with the power to be selective.”
Id. at *5. The Sentencing Reform Act of 1984, establishing the sentencing guidelines, and the
Anti-Drug Abuse Act of 1986 did not interfere with 21 U.S.C. § 851. Id. at *6. Thus, the
“recidivist enhancements were not automatically imposed on every drug trafficking defendant
with a qualifying prior conviction. Rather, federal prosecutors were supposed to continue to
exercise the discretion they asked for and received in § 851 to cull from the large number of
defendants who have prior drug convictions the ones who truly deserve those extra harsh
punishments.” Id. Instead of exercising such discretion, however, the Department of Justice
eventually moved to policies limiting the discretion of federal prosecutors and encouraging the
use of § 851 enhancements to both increase a sentence and to coerce guilty pleas. Id. at *5-13.
Recently, though, the Department of Justice announced a shift in policy regarding
mandatory minimums and prior felony recidivist enhancements. In an address to the Annual
Meeting of the American Bar Association‟s House of Delegates, Attorney General Eric H.
Holder, Jr. stated that it is clear that “too many Americans go to too many prisons for far too long,
and for no truly good law enforcement reason.” Eric H. Holder, Jr. Att‟y Gen. of the United
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States, Remarks at the Annual Meeting of the ABA‟s House of Delegates (Aug. 12, 2013),
available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. He went
on to discuss his commitment to criminal justice reform, including reducing the disparities in our
criminal justice system and “reserving the most severe penalties for serious, high-level, or violent
drug traffickers.” Id. In conjunction with his speech to the ABA, Attorney General Holder issued
several new Department of Justice Memoranda mandating changes to DOJ policy limiting the
circumstances in which United States Attorneys can properly invoke the harsh sentences related
to these mandatory minimum offenses and recidivist enhancements. (See Attached Memoranda,
dated August 12, 2013 and August 29, 2013). With regard to recidivist enhancements, the
Attorney General states: “Prosecutors should decline to file an information pursuant to 21 U.S.C.
§ 851 unless the defendant is involved in conduct that makes the case appropriate for severe
sanctions.” Factors to be considered in making this determination include whether the defendant
was an organizer, leader, manager or supervisor of others within a criminal organization, whether
the defendant was involved in the use or threat of violence in connection with the offense,
whether the defendant has significant ties to large-scale drug trafficking organizations, gangs, or
cartels, and the nature of the defendant‟s criminal history, including any prior history of violent
conduct or recent prior convictions for serious offenses.
Filing of § 851 enhancements in the Harrisonburg Division of the Western District of
Virginia are routinely filed in almost all, if not all, cases in which they are available. This is not
the case in other divisions within the Western District of Virginia and is not the case in other
districts across the country. Such automatic filing creates a disparity between defendants that is
not warranted and calls for sentences that are greater than necessary to achieve the goals of
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sentencing. Such automatic filing allows prosecutors to abdicate their responsibility to select the
deserving few hardened, professional drug traffickers for especially harsh punishment.
The § 851 enhancement was unnecessary in this case. Morris notified the government
shortly after his Indictment that he intended to plead guilty to the charge. His involvement in the
offense was short-lived and low-level. After his indictment he cooperated with the government.
He was not a leader, manager, or supervisor of others within a criminal organization. He did not
use or threaten violence in connection with this offense. He does not have ties to large-scale drug
trafficking organizations or gangs. Ratcheting up his sentencing guideline range in this case by
filing an 851 enhancement was not necessary because the facts of his prior criminal history were
already taken into account by his status as a career offender.
II. CONCLUSION
Accordingly, the career offender guideline recommends a sentence that is greater than
necessary to achieve the goals of sentencing in this case. Accordingly, for the reasons argued
herein, Morris asks the court to impose a sentence of 57-71 months.
Respectfully submitted,
ROBERT JOHN MORRIS
By Counsel
Counsel:
S/Andrea L. Harris
Asst. Federal Public Defender
VSB 37764
401 E. Market Street, Suite 106
Charlottesville, VA 22902
Tel (434) 220-3380
[email protected]
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CERTIFICATE OF SERVICE
I hereby certify that on October 30, 2013, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system which will send notification of such filing to the
following: counsel of record; and I hereby certify that I have mailed by United States Postal
Service the document to the following non-CM/ECF participants: none.
S/Andrea L. Harris
Asst. Federal Public Defender
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
Crim. No. 5:12cr43
AUGUSTUS G. JULIAS, II,
Defendant.
PRELIMINARY SENTENCING MEMORANDUM
Comes now the defendant, Augustus G. Julias, II, pursuant to the court’s
orders of July 17, 2013, and October 24, 2013, and represents the truth of the
following.
A.
Procedure
The defendant, Augustus G. Julias, II, pled guilty on July 17, 2013, pursuant
to a plea agreement with the United States to Count I of the indictment, which
charged him with conspiring to possess with the intent to distribute αpyrrolidinovaleronphenone (α-PVP), in violation of the Controlled Substance
Analogue Act, 21 U.S.C. §§ 802(32), 813, 841(a)(1) and 841(b)(1)(C).
Matthew Lee Comer, a codefendant in this case, pled guilty to the same
offense on April 17, 2013. The other codefendant, Jeremy Bentham King, went to
trial and was convicted by a jury on August 1, 2013. Comer is scheduled to be
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sentenced on November 7, 2013. King is scheduled to be sentenced on November
6, 2013. Julias’ sentencing hearing has been rescheduled from November 6, 2013,
to December 4, 2013.
Since the presentencing investigation report has not yet been completed,
Julias is unable to fully address all relevant sentencing issues. However, he files
this preliminary memorandum to address two particular issues—the calculation of
drug weight, and the sentencing of similarly situated defendants—in advance of all
of the sentencing hearings in this case as those are issues in common with all three
defendants.
B.
Argument
1.
α-PVP Is Most Closely Related to Pyrovalerone, a Schedule V
Controlled Substance, Not Methcathinone
The substance that was distributed by this conspiracy has been identified as
α-Pyrrolidinovaleronphenone (α-PVP), which the government treated as an
analogue of 3,4-methylenedioxypyrovalerone (MDPV), a Schedule I controlled
substance. Both of these substances are found in what is popularly described as
“bath salts.” In this case the substance was labeled as “stain remover.” The
evidence presented by the government at King’s trial by expert witnesses
Cassandra Prioleau and Thomas DiBernardino (employees of the Drug
Enforcement Administration) was that the chemical structure of α-PVP is
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substantially similar to the chemical structure of MDPV, and the pharmacological
effects on the central nervous system of α-PVP are substantially similar to those
produced by MDPV. Since there was abundant evidence that the “stain remover”
was sold for human consumption, it met the definition of a controlled substance
analogue, 21 U.S.C. § 802(32)(A).
The first step undertaken by the court in the sentencing process is to
accurately calculate the sentencing guidelines. In a drug case the guidelines are
driven primarily by the Drug Quantity Table, U.S.S.G. §2D1.1(c). In a garden
variety case this is not a terribly complicated task, as the drug weight calculated or
stipulated to is referenced to the corresponding base offense in the Drug Quantity
Table for a particular controlled substance. Complications may arise, for example,
if more than one controlled substance is involved. In that situation the Drug
Equivalency Tables are used to provide a method to convert each controlled
substance to its marijuana equivalent, add them together, and then find the base
offense level in the Drug Quantity Table that corresponds to the combined
equivalent marijuana weight. U.S.S.G. §2D1.1,comment., app. Note 8(B).
This case presents a further complication, which is that neither α-PVP nor
MDPV is found in the Drug Quantity Table or the Drug Equivalency Table. Based
on the recommendation of the DEA, the probation officer proposes to treat the α-
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PVP as Methcathinone, which is scheduled in the Drug Equivalency Table at a
380-to-1 ratio to marijuana. This would be incorrect.
With regard to a controlled substance or controlled substance analogue that
is not listed in the Drug Weight Table or the Drug Equivalency Table, the
guidelines provide that the base offense level should be determined “using the
marihuana equivalency of the most closely related controlled substance referenced
in this guideline.” [emphasis supplied] In determining the most closely related
controlled substance the court should consider:
(A) Whether the controlled substance not referenced in this guideline
has a chemical structure that is substantially similar to a controlled
substance referenced in this guideline.
(B) Whether the controlled substance not referenced in this guideline
has a stimulant, depressant, or hallucinogenic effect on the central
nervous system that is substantially similar to the stimulant,
depressant, or hallucinogenic effect on the central nervous system of a
controlled substance referenced in this guideline.
(C) Whether a lesser or greater quantity of the controlled substance
not referenced in this guideline is needed to produce a substantially
similar effect on the central nervous system as a controlled substance
referenced in this guideline.
U.S.S.G. §2D1.1, comment., app. Note 6.
Methcathinone is a synthesized compound similar to cathinone, the primary
psychoactive compound in khat, a flowering plant native to the Horn of Africa and
Arabian Peninsula that has been used by local populations for centuries for its
stimulative effects. This is little doubt that methcathinone, α-PVP, MDPV, and
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any number of other synthesized compounds have chemical structures that would
be considered “substantially similar” for purposes of meeting the definition of a
controlled substance analogue. These substances also operate through a similar
mechanism, that is, as monoamine uptake inhibitors, and produce to varying
degrees stimulative effects on the nervous system, such as increased heart rate and
blood pressure, appetite suppression, sleep deprivation, euphoria, etc. However,
except for anecdotal information and speculation little is known about the relative
potencies of these substances and the dosages ingested by users.
For the sake of argument, even conceding that α-PVP would be considered
an analogue of methcathinone for purposes of the controlled substances analogue
definition, it would still be incorrect to use methcathinone to calculate marijuana
equivalency, because although α-PVP is “substantially similar” to methcathinone,
methcathinone is not the most closely related controlled substance. Pyrovalerone
is most closely related controlled substance to α-PVP.
Pyrovalerone, which is classified as a cathinone, is a stimulant that was
synthesized in 1964.
Claims for it and α-PVP submitted by the Behringer
Ingelheim pharmaceutical company were approved when they were patented in
1967. U.S. Patent 3,314,970. Pyrovalerone was approved for use as a Schedule V
controlled substance by the Food and Drug Administration, and it was marketed
under the names “Centroton” and “Thymergix” for use in treating chronic fatigue
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and appetite suppressant. Although still prescribed in some European countries, it
was taken off the market in the United States because of abuse in the 1970s.
Pyrovalerone is the parent compound from which a number of analogue
substances, including α-PVP and MDPV (the methyl analogue of pyrovalerone)
have been derived. See Meltzer, et al., Pyrovalerone analogues. A Promising class
of monoamine uptake inhibitors. J Med Chem. 2006 February 23; 49(4): 14201432.
1.
Similarity of Chemical Structure
Even to the layman, it is obvious that the chemical structures of
Pyrovalerone, α-PVP, and Methcanthinone are similar, even “substantially
similar,” just from viewing the diagrams of their chemical structures and
comparing their molecular formulas. However, it is also obvious to the untrained
eye that Pyrovalerone and α-PVP are much more similar, almost identical in fact,
to each other than either is to Methcathinone.
Pyrovalerone
molecular formula
C16H23NO
Α-PVP
molecular formula
C15H21NO
Methcathinone
molecular formula
C10H13NO
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Testifying at the Jeremy King trial, Dr. Thomas Harris, King’s expert, Dr. Harris
also testified that “α-PVP is much closer to the structure of pyrovalerone than to
MDPV. Pyrovalerone differs from α-PVP only by a methyl group on the ring.”
Document 157, p. 23.
2.
Similarity of Effect
All of these substances have similar mechanisms, which is that they act as
norepinephrine-dopamine reuptake inhibitors (NDRI). Pyrovalerone and α-PVP
do not inhibit the uptake of serotonin. Jane M. Prosser & Lewis S. Nelson, The
Toxicology of Bath Salts:
A Review of Synthetic Cathinones, 8 J. Medical
Toxicology 33, 29 (2012). MDPV, which is also an analogue of Pyrovalerone,
blocks the uptake of serotonin, but to a lesser extent than it blocks uptake of
dopamine and norepinephrine. Michael H. Bauman, et al., Powerful Cocaine-Like
Actions of 3,4-Methylenedioxypyrovaleerone (MDPV), a Principal Constituent of
Psychoactive ‘Bath Salts’ Products, 38 Neuropsychopharmacology 552 (2013).
Methcathinone, which is more closely related to methamphetamine, is a potent
dopamine uptake inhibitor.
All of these synthetic cathinones cause a stimulant effect on the human
central nervous system, and cause such effects as an increase in blood pressure and
heart rate, euphoria, alertness, and psychomotor hyperactivity. The may also cause
side effects, including panic, agitation, insomnia, headache, and psychosis.
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3.
Potency
The third factor to be considered under the guidelines in determining the
“most closely related controlled substance” is a comparison of the relative dosages
of the controlled substance and the analogue as to whether they produce greater or
lesser effects.
The evidence produced at King’s trial is not entirely satisfactory on this
issue because it focused on the effects of MDPV. Nothing was presented or
discussed about the effects of methcathinone or its potency. Even as to MDPV the
evidence was in conflict. Dr. Harris testified that it was his opinion that not
enough research has been done to establish whether α-PVP has an effect on the
central nervous system that is “substantially similar” to the effect cause by MDPV.
He did testify that he believed α-PVP had a similar effect, in the sense that they
were structurally related compounds, but that α-PVP was less potent. He also
testified that it could not be known in the absence of research whether increased
dosage of α-PVP would cause an effect closer to the effect caused by MDPV.
Document 157, pp. 2-7. It
was
his
opinion
that
“α-PVP
would
have
pharmacological properties very similar to pyrovalerone.” Document 157, pp. 2324.
The government’s expert witness, Dr. Cassandra Prioleau, stated in her
declaration that both α-PVP and MDPV are synthetic cathinones, and that α-PVP
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“has a stimulant effect on the central nervous system that is substantially similar to
the stimulant effect on the nervous system of MDPV.” She based the latter opinion
on the following facts:
 Cathinones increase monoamine concentrations in the synaptic
cleft.
 Both α-PVP and MDPV inhibit the uptake of monoamines
(dopamine and norepinephrine) which increases monoamine
concentration in the central nervous system, though to cause
stimulant and hallucinogenic effects.
 If a new substance (α-PVP) produces stimulant effect in animals
similar to a known drug of abuse (MDPV), it will likely produce a
similar pharmacological effect in humans. This point was
referenced to a study conducted on rats.
 The similarity of the chemical structures between α-PVP and
MDPV, the structure-activity relationship, predicts that the two
substances will produce similar pharmacological effects.
Document 114-1, pp. 2-3.
Because there have been no human studies performed to test α-PVP or
methcathinone, there is no scientific measure of the relative potencies of the two
substances. The only information available is anecdotal. On the other hand, much
is known about pyrovalerone because human studies have been conducted on it,
and it was approved by the FDA for public use. Dr. Harris’ opinion was the effects
of α-PVP would be very similar to those of pyrovalerone. At King’s trial some
persons who used the “stain remover” containing α-PVP testified to its effects,
generally comparing it to methamphetamine, which is not being suggested as the
“most closely related controlled substance” to be used in calculating drug weight.
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The government’s expert witnesses in support of their opinion that α-PVP
caused pharmacological effects on the central nervous system that are substantially
similar to those produced by MDPV relied in large part on a “structure-activity
relationship” explanation. Put simply this means that substances with similar
chemical structures will cause similar effects when ingested.
See, Medicinal
Chemistry and Structure-Activity Relationships, David E. Nichols, Journal of
Pharmaceutical Sciences, vol. 70, no. 8, August 1981. This opinion was advanced
within the context of comparing α-PVP with MDPV. Adopting this logic would
lead to the conclusion the most similar chemical structures will cause the most
similar effects. Therefore, since the chemical structure of α-PVP is most similar
pyrovalerone, its effect would be most similar to pyroverlone, not methcathinone,
and pyrovalerone would be the most closely related controlled substance to α-PVP.
The fact that this argument reaches an anomalous conclusion is just one
illustration of the confusion associated with the Controlled Substances Analogue
Act.
All of the substances-- α-PVP, pyrovalerone, MDPV, methcathinone--
discussed above would be considered under a scientific definition (chemical
structure) to be analogues of cathinone because they are all structurally related to
cathinone.
3,4-Methylenedioxypyrovalerone (MDPV), Drug & Chemical
Evaluation Section, Drug Enforcement Administration, May 2013. Taken a step
further, α-PVP, MDPV, and dozens of other chemical compounds are analogues of
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pyrovalerone. Metzer, et. al, A promising class of monoamine uptake inhibitors, J
Med Chem. 2006 February 23; 49(4).
However, the scientific definition of an analogue has given way to a legal
definition, because the scientific definition rather inconveniently does not comport
with prosecutions under the Controlled Substances Analogue Act.
The
government could not prosecute this case on the theory that α-PVP is an analogue
of pyrovalerone, because pyrovalerone is a Schedule V controlled substance. In
other to meet the legal definition of a controlled substance analogue, the substance
has to be structurally and pharmacologically similar to Schedule I or Schedule II
controlled substance. That is why the government chose to prosecute this case on
the theory that α-PVP is an analogue of MDPV, not pyrovarlerone. MDPV is now
a Schedule I controlled substance, but before it was scheduled by the DEA on
October 21, 2011, it was treated as an analogue of methcathinone. This was the
theory in United States v. Sprouse, 5:12cr00003 (W.D.Va.) MDPV is much more
chemically similar to pyrovalerone than it is to methcathinone, and therefore could
be expected to produce pharmacological effects more similar to the effects of
pyrovalerone than to methcathinone.
However, if MDPV were treated as an
analogue of pyrovalerone, the prosecution would fail.
The Controlled Substances Analogue Act, however, does not require that the
government prove that the analogue be most similar to one controlled substance
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over another, only that it be substantially similar in structure and effect to any
Schedule I or II controlled substance. The government can make its choice from
among many candidates when deciding what Schedule I or II controlled substance
to base a prosecution on.
But when it comes to calculating drug weight under the guidelines, there is a
big difference. The guidelines require not that any similar controlled substance be
used, but that the most closely related controlled substance referenced in this
guideline.
The guidelines do not limit this procedure to Schedule I and II
controlled substances.
If α-PVP were treated under the guidelines as most closely related to
pyrovalerone, the weight would be measured by the provisions in Note (F) of the
Drug Weight Table. Since α-PVP and pyrovalerone are distributed in powder
form, it is reasonable to simply use one gram of each substance as one “unit.”
Under the Drug Weight Table, less than 40,000 grams of a Schedule V substance
yields a base offense level of 6.
The court may not agree with that level of calculation, but the comparison of
the substances shows the using methcathinone as the baseline grossly exaggerates
the drug weight as applied to α-PVP.
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2.
Persons Similarly Situated
18 U.S.C. § 3553(a)(6) cautions the sentencing court to avoid “unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” Of course no two defendants are exactly the same, and
no two offenses consist of exactly the same criminal conduct, but it would be
useful for the court to take into consideration the sentences imposed on other
defendants who distributed “bath salts,” as these cases seem to have much in
common.
a.
United States v. McFadden, 3:12cr00009 (W.D.Va.)
Four defendants were prosecuted for conspiring to distribute controlled
substance analogues, to-wit, 3,4-Methylenedioxymethcathinone (MDMC), 3,4Methylenedioxypyrovalerone (MDPV), and 4-Methyl-ethylcathinone (4-MEC).
The “bath salts” were sold over the counter from a video store in Charlottesville,
Virginia beginning in April 2011 and continuing through the summer of 2011. The
defendants were Lois Lee McDaniel, who owned and managed the store, two of
her employees, John Walter Collier and Dustin Wayne Orange, and Stephen
Dominick McFadden, who wholesaled the “bath salts” to McDaniel through
internet sales from his business location in Staten Island, New York. McFadden
went to trial and was convicted by a jury on January 10, 2013. The others pled
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guilty. McFadden has remained free on bail pending his appeal to the U.S. Court
of Appeals for the Fourth Circuit.
Defendant
5K1.1
Sentence
McDaniel
yes
28 mths BOP, $1000 fine
McFadden
no
33 mths BOP, $1000 fine
Orange
no
1 yr probation, $500 fine
Collier
no
2 yrs probation, no fine
b.
United States v. Sprouse, 5:12cr00003 (W.D.Va.)
Holly Renae Sprouse and Carlo Ernesto D’Addario were prosecuted for
conspiring to distribute controlled substance analogues including MDMC, MDPV,
and 4-MEC, beginning in August 2011 and continuing through October 2011.
Sprouse made numerous trips from her residence in Augusta County, Virginia, to
Baltimore, Maryland, where she purchased “bath salts” from the Dragon’s Den, a
headshop owned and operated by D’Addario. Sprouse would then distribute the
“bath salts” to customers in Virginia. Both defendants pled guilty.
Defendant
5K1.1
Sentence
Sprouse
yes
20 mths BOP, no fine
D’Addario
yes
12 mths, 1 day BOP, no fine
FDFCDC 200
Case 5:12-cr-00043-MFU Document 186 Filed 10/31/13 Page 15 of 19 Pageid#: 2251
c.
United States v. Zhang, 5:11cr0363 (N.D.N.Y.)
Twenty-two defendants were prosecuted for participating in a large scale
conspiracy to import controlled substance analogues, 4-Methylmethcathinone (4MMCand 4-Methyl-N-Ethylcathinone (4-MEC), and distribute them through a
national network. The conspiracy was based in central New York and operated
between October 2010 and April 2011. The substances were imported from China,
where they were manufactured, and shipped to distributers in Syracuse, New York.
The U.S. Attorney for the district of prosecution estimated that the conspiracy was
responsible for the distribution of more than 100 kilograms of these substances,
which go by the street name “Molly.” The lead defendant, Zhang, was never
located. Another defendant, Kennth Feria, absconded the day before the trial
began and remains a fugitive. Two defendants, Rosa Gambuzza and Ernest Snell,
went to trial and were convicted. The others pled guilty.
Defendant
5K1.1 *
Sentence
Gero
41 mths BOP, no fine
Cizenski
46 mths BOP, no fine
VanCamp
12 mths BOP, no fine
Wahdan
78 mths BOP, no fine
Marshall
30 mths BOP, no fine
McManus
12 mths BOP, no fine
FDFCDC 201
Case 5:12-cr-00043-MFU Document 186 Filed 10/31/13 Page 16 of 19 Pageid#: 2252
Massara
37 mths BOP, no fine
Carter
33 mths BOP, no fine
Radway
time served, no fine
Oot-Gambuzza
time served, no fine
Demott
3 yrs probation, no fine
Allen
3 yrs probation, no fine
Sorbello
time served, no fine
Tiffany
2 mths BOP, no fine
Gray
3 yrs probation, fine $1500
Defio
time served, no fine
Gambuzza
188 mths BOP, no fine
Harper
no disposition
Snell
sentencing 12/05/2013
Feria
fugitive
Zhang
fugitive
Mieszkowski
no disposition
There is no indication on the court docket that any defendants received substantial
assistance motions from the government, although there may have been such
motions made under seal. The following defendants testified as government
witnesses at trial: Cizenski, Harper, Gero, and Sorbello.
FDFCDC 202
Case 5:12-cr-00043-MFU Document 186 Filed 10/31/13 Page 17 of 19 Pageid#: 2253
d.
United States v. Lane, 2:12cr01419 (D. Az)
Seven defendants were indicted for conspiring to manufacture and distribute
controlled substance analogues, including MDPV, α-PVP, and α-PBP, beginning in
early 2011. The chemicals used to manufacture these substances were imported
from China, and were marketed under such names as “Eight Ballz Bath Salts,”
“Eight Ballz Premium Glass Cleaner,” “Amped Lady Bug Attractant Exuberance
Powder,” “Snowman Glass Cleaner,” “White Water Rapid Glass Cleaner,” and
“Brown Sugar.” These substances were distributed over the internet throughout
the United States, primarily to head shops, gas stations, and other small retail
businesses, as well as to individuals. One defendant, Michael Rocky Lane, went to
trial and was convicted. The others pled guilty. None of the defendants have been
sentenced yet, but those who pled guilty have sentencing stipulations in their plea
agreements.
Defendant
Sentence Stipulation
Titus
not exceed 6 yrs BOP
sentencing 11/18/2013
not exceed 4 yrs BOP
Sentencing 12/19/2013
not exceed 4 yrs BOP
Sentencing 02/11/2014
not exceed 10 yrs BOP
Sentencing 12/02/2013
not exceed 4 yrs BOP
Sentencing 12/09/2013
not exceed 2 yrs BOP
Sentencing 12/09/2013
Lowenstein
Collura
Zizzo
Freeman
Strunk
FDFCDC 203
Case 5:12-cr-00043-MFU Document 186 Filed 10/31/13 Page 18 of 19 Pageid#: 2254
Lane
was offered 14 yr cap
As yet no motions for substantial assistance appear on the docket. However, the
following defendants testified as government witnesses at trial: Collura,
Lowenstein, Titus, and Zizzo.
C.
Conclusion
Using methcathinone as the baseline for calculating drug would greatly
exaggerate the drug weight as applied to α‐PVP. Similarly situated defendants
convicted of the same offense have received moderate sentences, averaging in the
range of 2-4 years.
Respectfully submitted,
AUGUSTUS G. JULIAS, II
By Counsel
Counsel:
S/ Frederick T. Heblich, Jr.
Frederick T. Heblich, Jr.
Asst. Federal Public Defender
401 East Market Street, Ste. 106
Charlottesville, VA 22902
VSB # 21898
Tel. (434) 220-3386
Fax (434) 220-3390
[email protected]
FDFCDC 204
Case 5:12-cr-00043-MFU Document 186 Filed 10/31/13 Page 19 of 19 Pageid#: 2255
CERTIFICATE OF SERVICE
I hereby certify that on October 31, 2013, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system which will send notification
of such filing to the following: counsel of record; and I hereby certify that I have
mailed by United States Postal Service the document to the following nonCM/ECF participants:
S/Frederick T. Heblich, Jr.
Frederick T. Heblich, Jr.
Asst. Federal Public Defender
401 East Market St., Ste 106
Charlottesville, VA 22902
FDFCDC 205
NOTICE TO E.D. VA, ALEXANDRIA DIVISION, PANEL ATTORNEYS FROM JUDGE BRINKEMA
NOTICE
Given the tight budgetary restrictions on the judiciary, it is extremely
important that court-appointed counsel do their best to avoid exceeding any of the
financial limits on attorney's fees, expert fees, and other expenses set under the
Criminal Justice Act. If, after evaluating your case, you determine that you may
need to exceed any of these limits, you should immediately move, in an ex parte,
under seal pleading, for leave to exceed the limit. Such motion must be specific as
to each category of expenditure, with a detailed explanation supporting the need
for the excess funding.
Counsel who exceed the limits without advance approval run the risk of not
being reimbursed for the excess fees or expenses.
FDFCDC 206
Judicial Conference of the United States
Committee on Defender Services
United States Courthouse
101 West Lombard Street, Room 7310
Baltimore, Maryland 21201-2605
Chair
Catherine C. Blake
Telephone:
(410) 962-3220
Fax:
(410) 962-6836
Members
Deborah A. Batts
Sharon Lovelace Blackburn
Kathleen Cardone
Raner C. Collins
Jonathan W. Feldman
Katharine Sweeney Hayden
Gladys Kessler
Harry S. Mattice, Jr.
Eric F. Melgren
F. Dennis Saylor, IV
Bobby E. Shepherd
John D. Tinder
February 26, 2014
MEMORANDUM
To:
Judges, United States Courts of Appeals
Judges, United States District Courts
United States Magistrate Judges
Circuit Executives
Federal Public/Community Defenders
District Court Executives
Clerks, United States Courts of Appeals
Clerks, United States District Courts
Senior Staff Attorneys
Circuit CJA Case-Budgeting/CJA Supervising Attorneys
From:
Judge Catherine C. Blake
Chair, Judicial Conference Committee on Defender Services
Judge Jonathan W. Feldman
Chair, Committee on Defender Services Budget Subcommittee
RE:
COST-CONTAINMENT INITIATIVES REGARDING CJA INVESTIGATORS, EXPERTS,
AND OTHER SERVICE PROVIDERS (INFORMATION)
In an effort to address costs in Criminal Justice Act (CJA) “mega cases,”1 the Committee
on Defender Services (Committee), at its December 2013 meeting, identified several areas for
potential savings associated with the hourly rates, retention, and billing practices of investigators,
1
A CJA panel attorney mega case refers to a representation that qualifies for case budgeting
under sections 640 and 230.26 of the Guidelines for Administering the CJA and Related Statutes (CJA
Guidelines), Guide to Judiciary Policy, Vol. 7, Part A: (a) all capital representations and (b) non-capital
representations that appear likely to become or have become extraordinary in terms of potential cost
(i.e., attorney hours are expected to exceed 300 or total expenditures are expected to exceed $30,000 for
appointed counsel and services other than counsel).
FDFCDC 207
Cost-Containment Initiatives Regarding CJA Investigators,
Experts, and Other Service Providers
Page 2
experts, and other service providers (service providers). The Committee developed three service
provider cost-containment initiatives which it strongly urges courts to adopt (unless such
practices are already in place) in CJA panel attorney mega cases, recognizing that
cost-containment and efficiency efforts can be made while maintaining the quality of
representation.
The following three initiatives are further explained in the attachments:
1.
Require the use of experience-based ranges (reasonable hourly rate ranges)
for commonly used service providers and require further justification and the
permission of the presiding judicial officer to exceed the ranges. (See
Attachment 1)
2.
Require counsel to use written retainer agreements for investigators, experts,
and other service providers, setting forth details of their engagement,
including the hourly rate, the approved number of hours, and
contemporaneous time record requirements. A sample engagement letter
(contents of financial arrangements) and recommended time sheet are
included with the attachment. (See Attachment 2)
3.
Require that privately retained investigators, experts, and other service
providers bill travel time at 50 percent of the approved normal billing rate,
subject to described exceptions. (See Attachment 3)
These initiatives will be required in federal defender mega cases as well. A separate
memorandum will be sent to federal defenders to explain how these initiatives apply to them in
relation to the Committee’s oversight of their budgets and grants.
To enable the Committee to identify and fashion well-informed decisions regarding issues
involved with each initiative, it solicited the input from an expert panel of federal defenders, CJA
panel attorneys, circuit CJA case-budgeting attorneys, the national mitigation coordinator, as well
as the Administrative Office’s Defender Services Office. Recognizing that each case is unique, a
key component of the Committee’s recommendations is that the presiding judge always retains
the authority to exceed the recommended experience-based hourly rates or permit full
compensation for travel time if the individual case warrants the exception.
To ensure proper notification and education about the initiatives to all interested
stakeholders, a multi-step process has been designed to inform, explain, and reinforce the
initiatives through a combination of in-person discussions, webinars, and trainings. This
memorandum and one to be sent to federal defenders regarding their mega cases are among the
early steps. Information about the initiatives has been provided during case-budgeting webinars
held earlier this year (to be posted soon on the JNet) for judges and court staff and at the annual
FDFCDC 208
Cost-Containment Initiatives Regarding CJA Investigators,
Experts, and Other Service Providers
Page 3
Federal Defender Conference at the end of January 2014, and will be provided at the CJA Panel
Attorney District Representatives Conference in early March 2014. Additional training will be
provided through the creation of materials, presentations, and webinars (especially for CJA
voucher reviewers). The federal defenders have been encouraged to conduct local panel attorney
training on the initiatives.
If you have any questions or concerns regarding the initiatives, please feel free to contact
either of us, or the Defender Services Office by telephone at (202) 502-3030 (ask for the Legal
and Policy Division duty day attorney) or by email ([email protected]).
Attachments
cc:
CJA Panel Attorney District Representatives
FDFCDC 209
Attachment 1
Experience-Based Compensation Ranges for Certain Service Providers
Require the use of experience-based ranges (reasonable hourly rate ranges) for
commonly used service providers in CJA mega cases1 and require permission of the
presiding judicial officer to exceed the ranges.
Experience-Based Ranges
Category
Experience-Based Hourly Ranges
Law Students
$15-$25
Paralegals
$25-$55
Investigators
$55-$100
Mitigation Specialists
$75-$100
Jury Consultants
$150-$225
To develop these experience-based hourly rate ranges, the Committee on Defender
Services (Committee) received input from an expert panel of federal defenders, CJA panel
attorneys, circuit CJA case-budgeting attorneys, the national mitigation coordinator, as well as
Defender Services Office staff. These national ranges are intended to help contain costs, and still
enable appointed counsel to find a qualified service provider within the experience-based ranges
without diminishing the quality of representation.
The Committee recognizes that a critical component of establishing national experiencebased hourly rate ranges is that the presiding judge has the authority to approve rates outside of
the recommended ranges for demonstrated good cause. Factors that a court may wish to consider
in determining whether to exceed an experience-based range include the uniqueness of the
service or the service provider; the education, training, reputation, or specialization of the service
provider; the availability, or lack of availability, of this or similar service providers; the
seriousness of the case; any time limitations on the case that may affect how quickly the service
needs to be completed; and any other factors relevant to the circuit or district.
1
A CJA panel attorney mega case refers to a representation that qualifies for case budgeting
under sections 640 and 230.26 of the Guidelines for Administering the CJA and Related Statutes (CJA
Guidelines), Guide to Judiciary Policy, Vol. 7, Part A: (a) all capital representations and (b) non-capital
representations that appear likely to become or have become extraordinary in terms of potential cost (i.e.,
attorney hours are expected to exceed 300 or total expenditures are expected to exceed $30,000 for
appointed counsel and services other than counsel).
FDFCDC 210
Attachment 1
Page 2
Established hourly rate ranges for certain service providers have been utilized by some
circuit and district courts, including those with CJA circuit case-budgeting attorneys and CJA
supervising attorneys, for a number of years. Recognizing that there are regional and geographic
differences that influence the costs of a case, the Committee determined that trying to set national
ranges for most or all categories of service providers would prove burdensome and result in
ranges too large to account for the national variances. Instead, the Committee focused on the five
categories of commonly used service providers, listed in the chart, that account for more than
half of the CJA subsection (e) service provider expenditures each year. The Committee
understands that a district or circuit may choose to use ranges already developed based on its
particular geographic area. The chart should be utilized where no current experience-based
ranges exist and can serve as a basis to evaluate existing ranges or to develop district or circuit
specific ranges.
FDFCDC 211
Attachment 2
Engagement Letter for Service Providers
Require counsel in CJA mega cases1 to use written retainer agreements for
investigators, experts, and other service providers setting forth details of their
engagement, including the hourly rate, the approved number of hours, and
contemporaneous time record requirements.
Federal defender organizations are required by procurement regulations to use written
engagement letters when retaining experts and service providers. Likewise, panel attorneys in
mega cases should use written engagement letters/agreements2 when they engage an investigator,
expert, or other service provider (service provider) who will be compensated with CJA funds.3
This initiative would ensure that service providers have a clear understanding of: (1) their hourly
rate of compensation, (2) the maximum number of hours or amount of compensation approved
by the court, (3) the scope of the work for which they are engaged, and (4) other appropriate
billing practices. Specifically, the engagement letter should include language pertaining to the
possible reduced hourly rate for travel, as provided in Attachment 3.
In an effort to decrease instances when service providers, without prior approval, exceed
an authorized limit (total hours or total compensation) established by the court, the engagement
letter should also include language indicating that the service provider should not exceed the
maximum number of authorized hours or dollar amount without prior written authorization from
counsel and the approval of the court. The letter should explain that the service provider’s
voucher must be based on contemporaneous time records.
An exception to requiring the use of written engagement letters in CJA panel attorney
mega cases would be permissible if the total compensation for the individual service provider is
below the CJA dollar threshold requiring prior authorization for service providers (currently
$800, see CJA Guidelines § 310.20.30).
1
A CJA panel attorney mega case refers to a representation that qualifies for case budgeting
under sections 640 and 230.26 of the Guidelines for Administering the CJA and Related Statutes (CJA
Guidelines), Guide to Judiciary Policy, Vol. 7, Part A: (a) all capital representations and (b) non-capital
representations that appear likely to become or have become extraordinary in terms of potential cost (i.e.,
attorney hours are expected to exceed 300 or total expenditures are expected to exceed $30,000 for
appointed counsel and services other than counsel).
2
The terms of the engagement may be set forth in a letter, memorandum, or other form of
writing.
3
Written engagement letters should also be utilized by retained counsel when they seek to use
CJA funds to engage a service provider. See CJA Guidelines § 310.10.20.
FDFCDC 212
Attachment 2
Page 2
To assist counsel, sample engagement letter language is included as part of this
attachment. In an effort to assist judges and CJA voucher reviewers, an Expert and Service
Provider Time Worksheet, which could be used by service providers when submitting
compensation vouchers, is also included. The worksheet sets forth an itemized description of
the work completed, categories to enter the number of hours for that work, and subtotals and
totals for each column. The worksheet will be posted soon on the JNet and www.fd.org in
automated formats.
FDFCDC 213
Sample Engagement Letter: Contents of Financial Arrangements
Case name:_______________________________
Case number:_____________________________
The engagement of your services for this case is subject to the following:
(1)
You will be compensated at a rate of $____________ per hour [or specify some other fee
arrangement], and [$________ per hour for long-distance travel-related time that will be
explained in correspondence to you]. The maximum payment amount authorized by the
court as of this date for your services is $_______________, which includes any expenses
incurred by you.
(2)
You will submit your voucher(s) (CJA Form 21 in a non-capital representation and
CJA Form 31 in a capital representation) to me, and it is my responsibility as counsel to
certify to the court that the services were rendered. Payment for your services is subject
to approval by the presiding judge and, in certain circumstances, the chief judge of the
court of appeals. Approved payments are made by the Department of the Treasury out of
the federal judiciary’s Defender Services account, not by me or my law firm.
(3)
The presiding judge (and the circuit chief judge, if applicable) has discretion to reduce a
voucher. Specific reasons include: (a) a mathematical error; (b) non-compliance with the
Guidelines for Administering the CJA and Related Statutes (CJA Guidelines), Guide to
Judiciary Policy, Volume 7, Part A, or court policies; and (c) a determination that the
services claimed are unreasonable either in terms of the work performed or the amount of
time and expenses submitted. Accordingly, this Engagement Letter is not a guarantee of
payment for all services rendered or expenses incurred.
(4)
Do not perform services or incur expenses that would result in an invoice in excess
of the maximum payment amount authorized by the court (as set forth in paragraph
(1)). Doing so creates a risk that the court will not authorize the payment for the work
done or expenses incurred in excess of the maximum authorized amount, even if the
services performed or expenses incurred are necessary. You must advise me before you
exceed the court’s maximum authorized payment amount, and if I determine such
additional work and/or expenses are necessary for the representation, I will seek approval
from the court for a new maximum authorization level, before such work is performed or
expenses incurred.
(5)
Travel expenses will be reimbursed on the basis of actual expenses incurred. Please
consult with me regarding the maximum reimbursement amounts for travel expenses.
Airline travel must be authorized by the court by my application. If airline travel is
authorized, I will provide guidance to you regarding the purchase of a ticket.
FDFCDC 214
Sample Engagement Letter
Page 2
(6)
Record Keeping – Consistent with CJA Guidelines § 320.90, you are required to maintain
contemporaneous time and attendance records for all work/services billed, including work
performed by associates, partners, and support staff, as well as expense records. These
records should be submitted with your CJA voucher for payment, and must be retained
for three years after approval of the appointed counsel’s or the service provider’s final
voucher, whichever is later.
(7)
Unless otherwise authorized by the court, a voucher for services performed and expenses
incurred for the representation will be submitted at the conclusion of your services.
While the court attempts to process invoices as quickly as possible, there may be delays
in payment due to workload and other factors.
(8)
Scope of Work – You are authorized to do the following work:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
_______________________________________________________________________.
Accepted by:_____________________________
Date:___________________________________
2
FDFCDC 215
Date
Name
0
Obtaining
Records
and
Reports
Date Submitted
0
Confer with Counsel,
Client, Team
Members, or Other
(please specify in
previous column)
I hereby certify that this worksheet is for services rendered and is correct.
GRAND TOTAL (HOURS)
0
Brief Description of Services
DESCRIPTION OF WORK
0
Reading
File,
Records,
and
Reports
Case Number:
Case Name:
0
0
Research,
Writing,
&
Records
Analysis
Page
Investigative
Work and
Interviews
HOURS
Expert and Service Provider Time Worksheet in Mega Cases (02/14)
PAGE TOTAL (HOURS)
FDFCDC 216
of
0
Travel
Time
0
Other
Attachment 3
Travel by Service Providers
Unless otherwise approved by the presiding judge, require that privately retained
investigators, experts, and other service providers in CJA mega cases1 bill travel
time at 50 percent of the approved normal billing rate, subject to exceptions (A) and
(B) below.
(A)
The first six hours traveling by automobile to, and the first six hours
traveling by automobile from, a case-related destination (i.e., a destination
relevant to the responsibilities or duties assigned to the expert or service
provider by the attorney for the defendant).
(B)
Reasonable travel time at or around the case-related destination in order for
the expert or service provider to complete the responsibilities or duties
assigned to the expert or service provider by the attorney for the defendant.
Time spent performing case-related work while traveling, by any mode of
transportation, is not “travel time” and should be compensated at the full (i.e., not
reduced) hourly rate. Case-related work is work relevant to the responsibilities or
duties assigned to the expert or service provider by the attorney for the defendant.
The Committee on Defender Services (Committee) is concerned that investigators,
experts, and other service providers (service providers) should not be compensated at their full
hourly rate for unlimited travel time, particularly if the service provider can work on a case while
traveling but chooses not to work. Conversely, the Committee recognizes that for certain service
providers, driving is an essential part of their primary duties, during which they are unable to
actively work on a case.
A critical component of this initiative is that the presiding judge, upon application by
counsel, may authorize payment at the full hourly rate for travel in appropriate circumstances.
Examples of such instances may include when a medical doctor is retained and must leave his or
her practice to fly to a prison to examine a defendant, or when service providers have to travel
because of the requirements of the government (for example, prosecutors might not release
evidence, such as photos and hard drives, to be sent to service providers, instead requiring the
service provider to travel to the prosecutor’s office or a lab).
1
A CJA panel attorney mega case refers to a representation that qualifies for case budgeting
under sections 640 and 230.26 of the Guidelines for Administering the CJA and Related Statutes (CJA
Guidelines), Guide to Judiciary Policy, Vol. 7, Part A: (a) all capital representations, and (b) non-capital
representations that appear likely to become or have become extraordinary in terms of potential cost
(i.e., attorney hours are expected to exceed 300 or total expenditures are expected to exceed $30,000 for
appointed counsel and services other than counsel).
FDFCDC 217
Attachment 3
Page 2
The Committee does not recommend that courts utilize a blanket rule requiring a reduced
travel rate for service providers in all situations. The Committee feels that its recommended
exception for the first six hours traveling by automobile to, and the first six hours traveling by
automobile from, a destination addresses many of the issues surrounding this initiative.2
Additionally, once a service provider arrives at a distant location, driving around that area, or
driving around the geographic area of the case, should be considered a core job responsibility
and, therefore, not subject to a reduced hourly rate.
Notification of the reduced travel rate should be included in counsel’s engagement letter
with the service provider.
2
As noted previously, service providers cannot work on a case while driving. Additionally, a
blanket rule requiring a reduced hourly travel rate for all driving may cause service providers to travel
less and rely on less effective means of accomplishing their duties, resulting in lower quality of
representation (e.g., rather than arranging lengthy roundtrip travel to interview witnesses, the investigator
or mitigation specialist may instead conduct a telephone interview of a witness when it would be
important to evaluate the witness in person).
FDFCDC 218
ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS
HONORABLE JOHN D. BATES
Director
WASHINGTON, D.C. 20544
February 26, 2014
MEMORANDUM
To:
Judges, United States Courts of Appeals
Judges, United States District Courts
United States Magistrate Judges
Circuit Executives
Federal Public/Community Defenders
District Court Executives
Clerks, United States Courts of Appeals
Clerks, United States District Courts
Senior Staff Attorneys
Chief Circuit Mediators
Circuit CJA Case-Budgeting/CJA Supervising Attorneys
From:
Judge John D. Bates
RE:
IMPLEMENTATION OF HOURLY RATE AND CASE MAXIMUM INCREASES FOR CJA
PANEL ATTORNEYS (IMPORTANT INFORMATION)
As indicated in my memorandum dated February 12, 2014, the judiciary’s Defender
Services account received sufficient fiscal year 2014 funding to set Criminal Justice Act (CJA)
panel attorney rates at $126 for non-capital and $180 for capital work performed on or after
March 1, 2014. Where the appointment of counsel occurred before this effective date, the new
compensation rates apply to that portion of services provided on or after March 1, 2014.
In addition, the change in the non-capital hourly rate results in an increase to some of the
attorney case compensation maximum amounts. Subparagraph (d)(2) of the CJA,
18 U.S.C. § 3006A, provides that the panel attorney case compensation maximums for
non-capital representations rise “simultaneously” with aggregate percentage increases in the
hourly rate rounded to the nearest $100.
Panel attorney case compensation maximum amounts of $9,700 and $6,900 have
increased $100 to $9,800 and $7,000, respectively, and the case maximum amounts of $2,800
and $2,100 remain the same. The charts, Hourly Rates for CJA Panel Attorneys and Waivable
Case Compensation Maximums for Non-Capital Cases (scroll down from the Hourly Rates
chart), indicate the new and previous hourly rates and case compensation maximums. (The
A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY
FDFCDC 219
Implementation of Hourly Rate and Case Maximum Increases
for CJA Panel Attorneys
Page 2
hourly rate and case compensation maximum charts are in the process of being revised in the
publicly accessible Guidelines for Administering the CJA and Related Statutes (CJA Guidelines,
Guide to Judiciary Policy, Vol. 7, Part A).
The new case compensation maximums apply to a voucher submitted by appointed
counsel if that person furnished any CJA-compensable work on or after March 1, 2014.
The former case compensation maximums apply to a voucher submitted by appointed
counsel if that person’s CJA-compensable work on the representation was completed
before March 1, 2014. Attached are instructions for ensuring that the proper case compensation
maximum is utilized.
Questions concerning the CJA hourly rates or case compensation maximums may be
directed to the Defender Services Office, Legal and Policy Division duty attorney, on
(202) 502-3030, or via email at [email protected].
Attachment
cc:
CJA Panel Attorney District Representatives
FDFCDC 220
Attachment
Instructions to Determine the Applicable Case Compensation Maximums for
Panel Attorneys Under the Criminal Justice Act
Courts must determine whether compensation claims submitted on a CJA Form 20
(Appointment and Authority to Pay Court Appointed Counsel) are governed by the new case
maximums effective March 1, 2014, for non-capital panel attorney representations, or by the
former maximums. The key rules are:
The new case compensation maximums apply to appointed counsel for a
representation if that attorney furnished any CJA-compensable work on or after
March 1, 2014.
The former case compensation maximums apply to appointed counsel for a
representation if that attorney’s work was completed before March 1, 2014.
The CJA payment system signals the case compensation maximum based on
the date the voucher is submitted rather than the dates of service, and therefore courts must
manually review the vouchers submitted by appointed counsel in non-capital representations
(CJA 20: Appointment and Authority to Pay Court Appointed Counsel) to determine which case
compensation maximum governs. The person responsible for reviewing, processing, or
approving claims should look at Item 19 (“Certification of Attorney/Payee for the Period of
Service”) of the CJA Form 20 to determine whether the panel attorney furnished any CJAcompensable work on or after March 1, 2014. If so, the new case compensation maximums
apply to the attorney’s voucher on the representation (see chart for amounts of new and previous
case compensation maximums). (PLEASE NOTE: If the voucher is entered into the CJA
payment system after March 1, 2014, the warning message indicating that circuit approval is
required will not activate at the former case-maximum levels, even when they apply. The
warning messages are only generated based on the new case compensation maximums.)
FDFCDC 221
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FDFCDC 222

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