By Donna Walter
Missouri Lawyers Weekly
More from the Federal bench this month
SPRINGFIELD, Mo. — A federal appeals court in a 2-1 decision declined to follow the U.S. sentencing guidelines in a case that would have resulted in a lighter sentence for a late arrival to a drug conspiracy.
U.S. District Judge Richard E. Dorr, of Springfield, sentenced Danny E. Osborne to the 10-year mandatory minimum sentence for engaging in a conspiracy to distribute 1,000 kilograms of marijuana. Despite a guideline that says participants in a drug conspiracy shouldn’t be held accountable for large quantities distributed before they joined the conspiracy, the 8th U.S. Circuit Court of Appeals upheld the sentence on Wednesday.
The guidelines aren’t the issue, said Phil Koppe, an assistant U.S. attorney in Kansas City. The issue is the statute that sets the penalty for the offense, he said.
“Are you held responsible criminally in terms of liability for only that amount that the conspiracy handles during your membership, or can you be held responsible for what the conspiracy has done prior to entering into it?” he framed the issue.
“The guidelines make it quite clear that you’re responsible only for those amounts that were distributed when you entered,” but the court was “looking at it from what’s the appropriate penalty under the statute,” he said.
Osborne’s lawyer said he will file a motion for a rehearing by the full 8th Circuit. David Healy, of Springfield, characterized the majority’s opinion as: “It seems like they’re saying: ‘The guidelines say but this is how we’ve always done it. ‘ “
Osborne entered into the conspiracy in late December 2004, about a month after the federal government began investigating the conspiracy. Dorr, the sentencing judge, determined Osborne could have foreseen the amount of drugs being distributed by the other members of the conspiracy. The 8th Circuit agreed and said it wasn’t unreasonable to sentence Osborne to 10 years in prison.
The 8th Circuit also upheld the convictions and sentences of Damien Foxx, the ringleader, and his brother Willie Foxx. Damien Foxx was sentenced to about 17 years in prison, while Willie Foxx received a 10-year sentence.
Koppe said another factor in the court’s opinion is that statutes always trump the advisory guidelines.
“Even when the guidelines were mandatory, a mandatory minimum in a statute always took precedence,” he said.
Sentencing expert and law professor Doug Berman had this take on the guidelines: “Because they are advisory it means that the guidelines themselves do not define what a judge is expected to do at sentencing. “
He brought up the irony of the 8th Circuit having been “reprimanded by the Supreme Court for giving too much attention to the guidelines” is now being criticized for departing from the guidelines.
Berman teaches law at Ohio State University’s Moritz Law School and publishes the Sentencing Law and Policy blog.
The case is U.S. v. Osborne, 08-1010, and may be accessed through the appellate court’s Web site, www.ca8.uscourts.gov.
Copyright 2008 Dolan Media Newswires