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Crime & Courts

Obama grants clemency to Tampa man

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Published:   |   Updated: December 20, 2013 at 07:34 AM

TAMPA — A Tampa man was released from federal prison Thursday after receiving clemency from President Obama, who said he was righting a “decades-long injustice” by commuting his sentence, along with the sentences of seven other drug offenders.

Ezell Gilbert, 42, was sentenced in 1997 to 292 months - more than 24 years - in federal prison for selling crack and marijuana in a high-crime area of Tampa. He was scheduled to serve another four years before being eligible for release.

The clemency decisions are part of an effort by the Obama administration to reduce disparities in crack cocaine sentencing and turn back what the administration sees as excesses in punishment for nonviolent drug offenders.

“Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness,” the president said in a statement. “But it must not be the last. In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress.’’

Acting U.S. Attorney Lee Bentley said his office didn’t oppose Gilbert’s clemency petition. “We think the president has exercised his prerogative and reached a fair result,” Bentley said.

Gilbert’s lawyer, public defender Allison Guagliardo, said she was grateful for the president’s decision. “By granting Mr. Gilbert clemency, the president has saved our client from continuing to serve an erroneous sentence. Mr. Gilbert will now be able to reunite with his family, which includes his wife, three daughters, and newborn grandson. We could not be more thrilled for Mr. Gilbert and his family.”

Gilbert had been in a federal prison in Alabama before he was released Thursday. Neither he nor his family could be reached for comment.

Gilbert was arrested on Oct. 11, 1995, when he was caught selling drugs at a Tampa housing project with his five-year-old daughter in his car. The child “had been seated in the back seat of the small car the whole time,” according to a court description of the case. “She was there as two drug addicts climbed into the car to buy drugs from Gilbert.”

When police approached, Gilbert tried to run away, leaving his child behind, but police stopped him.

Guagliardo wrote in Gilbert’s clemency petition that Gilbert “is committed to making a successful transition back into society and providing for his family, both financially and emotionally. At the time of his federal offense, Mr. Gilbert was 25 years old. He is now a 42-year old man who understands that his offense cost him valuable time with his family and caused him to miss out on important life events, such as his daughters’ graduations... Mr. Gilbert has used his time while in custody to rehabilitate himself, earning his high school diploma and several course certificates.”

In addition, Gilbert completed a commercial driver’s license course in 2005 and hopes to work as a truck driver.

The sentence given Gilbert was required under the law in place at the time he was prosecuted. A series of legal decisions since then, though, have changed the law. If Gilbert were to be sentenced today under the same circumstances, his prison term likely would be shorter than the time he has already served.

In handing down the sentence in 1997, U.S. District Judge Leonard D. Wexler made it clear he thought Gilbert should receive a shorter term but that his hands were tied.

“The fact that I think the sentence is too high is immaterial” the judge said, according to Gilbert’s clemency petition. “Maybe I shouldn’t say what I think, but Congress has gone too far .... But I don’t see any authority under the law for me to downwardly depart....So I don’t think I can, even though I would if l could.”

Gilbert’s sentence was made longer because he was deemed a career violent offender. To achieve such a status, a defendant needed two prior convictions for drug or violent criminal offenses. In designating Gilbert, the court relied on a prior drug conviction and a conviction for illegally having a concealed firearm.

At the time, federal courts in this area of the country considered such a prior firearms conviction to be a violent offense. Gilbert argued unsuccessfully before the 11th Circuit Court of Appeals that the offense shouldn’t be designated as violent. Although the appeals court ruled against Gilbert, in later years, following some related U.S. Supreme Court decisions, the 11th Circuit changed that stance and held that a concealed firearms conviction was not a violent offense for purposes of designating a defendant a career violent offender.

But by then, Gilbert’s appeals were considered over, and he had no legal recourse to raise the issue again because the judge who sentenced him was acting within the law that existed at the time.

In 2009, another federal judge, James S. Moody, also expressed frustration that Gilbert seemed to have no options, even though everyone seemed to agree that he should be released.

“Unfortunately, Mr. Gilbert is in the unenviable position of having to remain in prison even though under the present interpretation of the law he is no longer deemed a career offender and has served the time that would be required of him were he sentenced today,” Moody said. “Salt to the wound is that he legally challenged the very issue that now incarcerates him - but lost. It is faint justice to tell him now that he was right but there is no legal remedy.”

Gilbert did win a 2010 appeal before a three-judge panel of the 11th Circuit and was released from prison for ten months. During that time, he married his long-time girlfriend and began working odd jobs to support his family, according to his clemency petition.

But the 11th Circuit overruled the panel, and Gilbert was sent back to prison in 2011.

In dissenting from that ruling, one judge said Gilbert was paying the price of the 11th Circuit’s “mistake” in ruling that the weapons offense was a violent offense in Gilbert’s first appeal.

“The effects of our mistake are quite dire for Mr. Gilbert, insofar as his properly calculated (and advisory) guideline range would today be 130-162 months, or approximately 11 to 13 years. As I write this, I understand that he has already served more than 14 years in prison. And yet the majority opinion tells Mr. Gilbert that the laws and Constitution of this country offer him no relief.”

The majority of the court, however, pointed out that Gilbert’s record of arrests dated back to 1989, and included convictions for five drug felonies and three weapons felonies. The court wrote that Gilbert actually could have been sentenced to life, but the prosecution did not seek that enhancement.

“Every time charges against him were dropped or he was released early,” the court wrote, “he immediately went back to his life of crime.”

esilvestrini@tampatrib.com

813-259-7837

Twitter: @ElaineTBO

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