Fives Affirm 548-Month Sentence for First-Time Offender, But Criticize Government for Jacking Sentence So High By Stacking 924(c)'s
Five-hundred forty-eight months. That's the sentence fifty-three year-old, first-time offender Mary Beth Looney received after a jury found her guilty of conspiracy and substantive meth crimes, as well as a couple of 924(c)'s. Why so high? As the court explains,
[b]ecause of the way the indictment was stacked by the prosecutor, Ms. Looney was subject to mandatory minimum terms of imprisonment for forty years (ten years for the drug conspiracy and possession with intent to distribute counts, five consecutive years for the first gun count, and twenty-five consecutive years for the second gun count). Although thirty years of her sentence can be attributed to possessing guns in furtherance of her methamphetamine dealing, there is no evidence that Ms. Looney brought a gun with her to any drug deal, that she ever used one of the guns, or that the guns ever left the house.
(The extra sixty-eight months were evidently the result of various Guidelines calculations, as the court refers to this as a within-Guidelines sentence.)
Looney appealed her sentence, raising three arguments. First, she argued that the sentence was procedurally unreasonable, because the district court treated the Guidelines as mandatory and failed to provide an adequate statement of reasons for the sentence. The court of appeals disagreed. It pointed to the written statement of reasons, which recited "that the Guidelines were 'advisory only.'" It also found the district court's apparently minimal statement of reasons sufficient, citing the passage from Rita opining that little explanation is required for a within-Guidelines sentence. "And since Ms. Looney did not make any argument [that hers was an atypical case warranting a below-Guidelines sentence], the district court did not need to explain why it did not find a non-Guideline sentence necessary."
Second, Looney argued that her sentence violated the Eighth Amendment because it was grossly disproportionate to her crimes. The court rejected this argument as well, which is not surprising given the Supreme Court's Eighth Amendment jurisprudence. The court nevertheless added that "although we consider Ms. Looney’s sentence to be unduly harsh for someone who has no previous conviction of any sort, [i]t is for Congress to ameliorate the result of application of[statutory mandatory minimum sentences] if it deems it too harsh." (quotation marks and citation omitted).
Third, Looney argued that one of the 924(c)'s should have been dismissed. One count was based on possession of two guns in furtherance of the conspiracy to PWID meth, and the other was based on possession of the same two guns in furtherance of the PWID. Looney argued that "she cannot be sentenced for two § 924(c) gun offenses when one of the predicate offenses is conspiracy to commit crime X and the other offense is just crime X." Unfortunately, the Fifth Circuit held otherwise in United States v. Privette, 947 F.2d 1259 (1991).
Having decided to affirm Looney's sentence, the court took the opportunity to editorialize on a particularly heavy-handed exercise of prosecutorial discretion:
We have carefully considered all of Ms. Looney’s challenges to her sentence and can find no basis upon which to vacate any portion of it. As we have noted, Ms. Looney was subject to a mandatory minimum sentence of forty years -- essentially determined by Congress. Although Congress established the mandatory minimum terms of imprisonment, and further provided that the firearms counts must be served consecutively, it is the prosecutor’s charging decision that is largely responsible for Ms. Looney’s ultimate sentence. Instead of charging Ms. Looney with two separate § 924(c) offenses, the prosecutor might well have charged her with only one, which would have avoided triggering the twenty-five-year mandatory, consecutive sentence for the second firearm count. The prosecutors also could have chosen to charge Ms. Looney with the drug offenses and requested a two-level enhancement under the Sentencing Guidelines based on the involvement of firearms with the offenses. Instead, the prosecutor exercised his discretion -- rather poorly we think -- to charge her with counts that would provide for what is, in effect, a life sentence for Ms. Looney.
We do not question the authority -- or the wisdom -- of Congress’s decision to punish severely individuals who possess weapons in furtherance of drug dealing. Nor do we in any way minimize the seriousness of Ms. Looney’s offenses. Moreover, there is nothing legally improper about the prosecutors’ charging decisions with respect to Ms. Looney, nor about the practice of confecting an indictment that would provide for the largest mandatory sentence. Nevertheless, we must observe that the power to use § 924(c) offenses, with their mandatory minimum consecutive sentences, is a potent weapon in the hands of the prosecutors, not only to impose extended sentences; it is also a powerful weapon that can be abused to force guilty pleas under the threat of an astonishingly long sentence. For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat -- rather than face the possibility of life imprisonment based on a prosecutor’s design of an indictment that charges and stacks mandatory minimum consecutive sentences. We merely observe that the possibility of abuse is present whenever prosecutors have virtually unlimited charging discretion and Congress has authorized mandatory, consecutive sentences. We trust that the prosecutors in this Circuit are aware of the potency of this weapon and its potential for abuse, and that they exercise extreme caution in their use of it, all in the interests of justice and fairness.
The opinion also includes the court's rejection of Mr. Looney's appeal of the denial of his suppression motion. That discussion doesn't break any new ground, so I won't summarize it here. But keep it in mind if you're looking for a quick summary on the law concerning challenges to search warrants based on false statements in the supporting affidavits.