How the 4th District Rewrote the US SentencingGuidelines (Specifically @USATerwilliger & Judge Leonie M. Brinkema)
It’s a small thing, but it cost me a year-plus of my life. What’s worse, the precedent could cost hundreds of defendants thousands of years. And it’s blatantly wrong.
Section 2D1.1(b)(1) of the US Sentencing Guidelines provide for a 2-point sentence enhancement for “possession of a firearm or dangerous weapon” during the commission of an offense. This enhancement is applied in some 70% (*1*) of federal drug cases, and it’s no small thing--those two points can add anywhere from a few months to over six years to a sentence, according to the USSG Guideline Table (or they can be the difference between a thirty-year sentence and life in prison).
OK? Clearly, it’s a big deal. Now, how is it being misused? Well, in my case, the 2D1.1(b)(1) enhancement was applied for a toy BB gun, that was found in a closet during a search of my house, subsequent to my arrest elsewhere. (A BB gun--that, in fact, was broken, unloaded, and probably I should have thrown out years ago…but I’m a hoarder, and had basically forgotten about it anyhow.)
Alright, already this should sound crazy. But despite that, there are cases where the enhancement would legitimately apply, even with a BB gun--say, if I carried it around or used it in some manner pretending it was a real gun, thereby causing the ‘increased danger of violence’ that the enhancement is designed to punish. So, how do the US Sentencing Guidelines differentiate between weapons that qualify for the enhancement and those that don’t? Well, they’re pretty clear: The enhancement does not apply if the connection between the drug charge and the ‘weapon’ at issue is ‘clearly improbable,’ ‘more akin to accident or coincidence.’
There’s an Application Note in the USSG (*2*): In the hypothetical case of a drug dealer who is found at home has an unloaded hunting rifle in his closet, that would not qualify.
Seems pretty straightforward, right?
Well, 4th District Judge Leonie Brinkema, and US Attorney G. Zachary Terwilliger don’t think so. They have essentially written that Application Note right out of existence.
How? Well, in my case, after my defense attorney negligently failed to object to the enhancement at my sentencing hearing, despite my asking her to (more on this later), I filed a motion. Honestly, I expected it’d be a slam-dunk--there was never any accusation that the BB gun was used in any way, and it wasn’t a real gun in the first place! (In the vast majority of cases, 2D1.1(b)(1) is applied for firearms. It’s so often triggered by guns that’s it’s regularly called the “firearms enhancement” in court. In rare cases, it has been used for other objects, including BB guns, but generally only when the BB gun was brandished as if it were a real gun.)
And here’s where USA Terwilliger, and Judge Brinkema, rewrote the guidelines. In both the government’s response to my motion, and the Judge’s brusque dismissal, two main arguments were made. First, that because the BB gun was in my house, that’s enough for me to have ‘possessed’ it, and enough to satisfy the ‘relation to the charge’ requirement. And second, that the BB gun qualified as a ‘dangerous weapon’ because, even if broken, unloaded & nonfunctional, it could be used ‘to bludgeon somebody.’
Seriously--those were the arguments. Do you see the disconnect here?
The Guidelines themselves say that an unloaded hunting rifle in the closet would not qualify for the enhancement--that the fact that a hunting rifle is not a weapon typically associated with drug dealers & the fact that it’s unloaded make it ‘clearly improbable’ that the rifle has anything to do with the hypothetical drugs.
Under Terwilliger’s argument, and Brinkema’s ruling, however, that Application Note gets thrown out the window. The theoretical rifle would be related to the theoretical drug activity just because it was in the house, and it would be dangerous, despite being unloaded, because clearly you could use it as a club, or something.
Say Goodbye! to protection against indiscriminate use of this enhancement against every drug offender. Every offender surely possesses a kitchen knife or an object of some kind that’s heavy enough to be used as a ‘bludgeon.’ And under Brinkema’s new precedent, they can be punished for it.
If there’s any interest, I’ll scan in the government’s memo (written by Terwilliger) and Judge Brinkema’s careless dismissal, and you can read them yourself. The ruling not only cost me the extra time that the 2 points added to my sentence, by the way--it also caused my offense to be classified as ‘violent’ under Bureau of Prisons rubric, and thereby rendered me ineligible for 3621(e) benefits under the BoP’s Drug Abuse Program. Which meant I did an extra year in prison solely because of the stupid BB gun.
And many more will surely follow in my footsteps.
Brinkema and Terwilliger are clearly believers in the ‘lock ‘em up & throw away the key’ mentality that’s plaguing our justice and prison systems. There’s no way they legitimately thought my broken toy gun posed any increased danger to anyone--but it was a handy way to leave me sitting in prison that much longer. It’s this, right here, that’s at the core of our justice problem. Until our judges and jailers and prosecutors and police come to revere justice and not jail time for every possible defendant, we’ll never see meaningful change.
Citations:
Comments
Post a Comment