TAMPA — As the federal government changes how it punishes people convicted of drug crimes, some defendants are finding themselves sentenced under different standards than others.
That’s because while prosecutors and defense lawyers are agreeing to implement one of the government’s changes before it is officially enacted, some judges are sticking to the current standards and others are not. And judges have the last word when it comes to sentences.
So the kinds of sentences being meted out depends more than usual on the judge.
“This is an unhappy and unfortunate circumstance in which truly the sentence you receive today may turn on which judge you are assigned,” said Jim Felman, a Tampa lawyer who is chair-elect of the American Bar Association Criminal Justice section. “I guess, under any circumstance, that’s less than ideal. Whether the fault lies with those who are going to go along with the Justice Department and imposing what they think is just now or with those who believe form is more important than substance, reasonable people could differ about. But I think everyone would agree this is not an ideal system of justice.”
Attorney General Eric Holder, with support from both Democrats and Republicans in Washington, launched an initiative last year called “Smart on Crime,” which aims, in part, to reduce the prison sentences served by nonviolent drug offenders. The concept is endorsed by both civil liberties advocates and fiscal hawks.
As part of the initiative, Holder in March endorsed a proposal to reduce suggested sentences for most drug offenders.
The standards are set in federal sentencing guidelines, which establish numerical levels assigned to federal crimes. The levels go up and down, depending on various factors, such as the amount of drugs involved in a case or whether a defendant has accepted responsibility for his crimes.
Within each level, the guidelines have specific ranges of potential prison sentences. The higher the numerical level, the longer the potential sentence. The range also can be increased for those with a criminal history.
Sentencing guidelines are considered advisory, meaning judges don’t have to follow them, but if they don’t, they’re required to give a reason.
The body that creates federal sentencing guidelines, the U.S. Sentencing Commission, voted April 10 to reduce by two the numerical starting points assigned to various drug offenses. The change would affect nearly 70 percent of all drug trafficking offenders and reduce the average sentence by 11 months, or nearly 18 percent, according to the Justice Department.
Federal Public Defender Donna Elm said the change is making sentences more sensible.
“It’s not like they’re getting a break, but they’re getting something of a more reasonable sentence,” she said. “They’re still getting substantial punishment, but it is going to reduce just warehousing people in prison long beyond the deterrent effects.”
The guidelines change will go into effect Nov. 1, unless Congress acts to prevent it. The commission has not yet decided whether the change will be retroactive, in which case it would be applied to defendants who have already been sentenced.
But even before the Sentencing Commission voted, Holder announced in March that he was instructing federal prosecutors not to oppose certain defendants who ask to have the proposed guideline change applied to their cases.
U.S. Attorney Lee Bentley for the Middle District of Florida said prosecutors were directed to agree to the two-level reductions if the drug case defendants are nonviolent and their cases don’t present special circumstances that warrant the longer sentences. Defendants also must agree to not seek a reduction again after the change is made official.
Several Tampa federal judges have granted the joint requests to apply the new guidelines. But lawyers say two judges - Steven D. Merryday and James Whittemore - are sticking to the current system.
As Merryday said at a recent sentencing hearing, he is taking his guidance from the appeals court, not from the Justice Department and defense lawyers.
“The 11th Circuit governs these sentencings and it has told me exactly what to do,” Merryday said, “which is correctly calculate the advisory guideline range under the United States Sentencing Guidelines. It hasn’t said, ‘Unless the attorney general wants something else done or if there is a greater than 10 percent chance that Congress may do something one way or the other.’ That’s not what they have said to do. They have said to correctly calculate the advisory guideline range, so I think that’s what I’m required to do and I will to the best of my ability.”
And, Merryday added, if Congress and the Sentencing Commission decide to make the change retroactive, the defendants will be brought back and given new sentences.
“If they don’t want it to be retroactive,” Merryday said, “why should some people get advantage of this because some judges are sympathetic with it?”
Many judges, though, are going along with the change. According to attorneys, at least four Tampa federal judges - James Moody, Virginia M. Hernandez Covington, Richard A. Lazzara and Elizabeth A. Kovachevich - have granted the two-level reductions in drug cases.
So, for example, one defendant, Rodolfo Jalomo, was facing a sentencing range of 168 months to 210 months, according to Elm.
According to his plea agreement, Jalomo was part of a group that smuggled methamphetamine from Texas to Florida.
Lazzara granted the two-level reduction in Jalomo’s sentencing range and sentenced him to 135 months, or 11 years and one month. “He’s not walking out the door,” Elm said. “It’s not like you’re giving away the farm. It makes a difference.”
In some cases, the change can have a more dramatic impact.
Attorney Fritz Scheller said one of his clients benefitted enormously from that change, as well as another decision by Holder last year to lessen the frequency with which prosecutors present evidence to courts in support of minimum mandatory sentences.
Ibrahim Chehab, a Tampa man who was prosecuted in Orlando, received three years of probation with six months of home detention instead of prison. Chehab was a low-level participant of a cocaine smuggling operation. After Chehab, 28, was arrested last year, Scheller said, the defendant “got his act together” and was able to complete his degree at Hillsborough Community College and start taking classes at the University of South Florida.
“It is fair to say that Mr. Chehab’s case was one of the first cases nationally which included a waiver of the mandatory penalty pursuant to the Holder memorandum,” Scheller said.
In addition to agreeing to the two-level reduction in Chehab’s sentencing level, the prosecution also agreed to waive the minimum mandatory sentence of five years in prison, Scheller said.
Without the minimum mandatory requirement, because Chehab was a first-time offender, his sentencing guidelines called for between 12 and 18 months in prison, according to Scheller.
“He could never have gotten to home detention without the two-level variance,” Scheller said. “He’s just a young kid who was kind of adrift.”
The Justice Department last week also announced an initiative to help those who are already serving long sentences. The department is inviting inmates who meet certain criteria to apply for clemency and have their prison time reduced.
The clemency initiative would help inmates who have already served at least 10 years “who have a clean prison record, do not present a threat to public safety and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate,” said Deputy Attorney General James M. Cole.
The inmates will be helped by private attorneys who are offering their services free of service in an initiative called the Clemency Project.
Bentley said applications will be reviewed by Justice Department attorneys and then forwarded to U.S. Attorneys Offices for input.