United States District Court, Southern District of New York
December 1, 1999
UNITED STATES OF AMERICA
MARVIN WILLIAMS, DEFENDANT.
The opinion of the court was delivered by: Martin, District Judge.
MEMORANDUM OPINION AND ORDER
In the introduction to the Sentencing Guidelines the Sentencing
Commission noted: "Congress sought reasonable uniformity in
sentencing by narrowing the wide disparity in sentences imposed
for similar criminal offenses committed by similar offenders."
United States Sentencing Commission, Guidelines Manual, Ch. 1,
Pt. A, § 3 (Nov. 1998) ("U.S.S.G.").
Unfortunately, as prosecutors and the courts have endeavored to
apply the Guidelines to accomplish this laudable goal, we
sometimes overlook the fact that ending disparity in sentences
imposed for similar offenses by similar offenders was not the
only, or even the primary, congressional goal in adopting the
Guidelines. Equally important, "Congress sought proportionality
in sentencing through a system that imposes appropriately
different sentences for criminal conduct of differing severity."
Thus, Congress and the Commission recognized that there are two
distinct types of disparity in sentencing. The first is the
disparity found when two defendants who commit the same crime in
identical circumstances receive different sentences. The second
exists when the same sentence is imposed on two people whose
crimes or circumstances are significantly different.
Experience suggests that a rigid application of the Sentencing
Guidelines will eliminate the first type of disparity, but it
will do so by creating the second type. Congress' goal that
"appropriately different sentences [be imposed] for criminal
conduct of differing severity" can only be achieved if judges
recognize their obligation to depart from the guideline
sentencing range in appropriate cases.
This is such a case.
Marvin Williams, the defendant, presents a picture that is all
too familiar to any District Judge sitting in an urban court.
Raised by a welfare mother in the housing projects of the Bronx,
Williams began using marijuana at age ten and was adjudged a
juvenile delinquent at the age of fifteen. At age nineteen he was
convicted in state court of Attempted Criminal Sale of a
Controlled Substance for having sold two glassine envelopes of
heroin to an undercover officer. Nine months later Williams was
convicted of selling one $10 dollar bag of crack to an undercover
officer. At age twenty-one Williams had his third state drug
conviction when he was arrested for selling crack on the street
and was found to have sixty-one crack vials in his possession.
In the present case Williams was convicted after a bench trial
for participating in the sale of twenty-nine grams of heroin to
undercover police officers. From the evidence at trial it is not
entirely clear what role Williams played in the transaction
although he was present when the heroin was delivered and helped
to count the money paid by the undercover policemen. It appears
that Jerome Mayfield ran the operation and that Williams simply
worked for him. It is also significant that although the
undercovers purchased drugs from Mayfield on four occasions,
Williams participated in only one of the transactions.
Because Williams' prior narcotics convictions make him subject
to sentencing enhancements as a career offender under § 4B1.1,
his total offense level is 34 and his criminal history category
is VI resulting in a guideline range of 262-327 months. Without
the career criminal enhancements Williams' offense level would be
20 and his criminal history category V resulting in a guideline
range of 63-78 months.
The defendant urges the Court to depart from the draconian
range of the career offender guidelines, relying on United
States v. Rivers, 50 F.3d 1126 (2d Cir. 1995), in which the
Second Circuit held:
We agree with the other circuits that section 4A1.3
manifests the Commission's view that a sentencing
judge should exercise discretion whenever the judge
concludes that the consequences of the mathematical
prior-history calculation, prescribed by sections
4A1.1 and 4A1.2, either underrepresent or
overrepresent the seriousness of a defendant's prior
record. We also agree that in the case of a defendant
whose offense level is raised by his criminal history
into career offender status, such discretion may be
exercised, to the extent thought appropriate, to
reduce either the criminal history category or the
offense level, or both.
Id. at 1331.
While acknowledging that Rivers recognizes the power of the
district court to depart from the career offender guidelines in
some circumstances, the government argues that prior case law
precludes the Court from departing on the ground urged here, to
wit, the relatively minor nature of Williams' prior and current
convictions. The principal support for the government's argument
is found in the Second Circuit's opinion in United States v.
Richardson, 923 F.2d 13 (2d Cir. 1991), in which the court held
that the fact that the defendant's offense of conviction involved
only a small quantity of narcotics did not justify a departure
from the career offender guidelines.
Richardson is distinguishable on two grounds. First,
Richardson's prior convictions were for 1) robbery and 2) robbery
and assault with intent to cause serious physical injury. The
court in Richardson quoted from the statement of Senator
"[T]he average drug dealer has committed at least
five assaults and robberies against strangers in
order to ply his trade. . . . Career criminals must
be put on notice that their chronic violence will be
punished by maximum prison sentences for their
offense without parole." 128 Cong.Rec. 26,517 (1982).
Id. at 16.
Thus, the circuit court viewed Richardson's prior convictions
involving violent robbery and assault as placing him within the
heartland of cases contemplated by the career offender provision.
Subsequent to Richardson the Second Circuit affirmed a Judge
Lasker decision to depart in a case in which he concluded that
classifying the defendant as a career criminal because he had two
prior state narcotics convictions for sales of small quantities
of crack "would overrepresent the defendant's past criminal
history." United States v.
McFarland, 1992 WL 395589 (S.D.N.Y.), aff'd, 996 F.2d 302 (2d
Cir. 1993). While Williams has one more prior conviction than
McFarland did, as more fully developed below, the nature of those
convictions is such that categorizing him as a career criminal
also "significantly over-represents the seriousness of [his]
criminal history." U.S.S.G. § 4A1.3, p.s.
The second fact that distinguishes this case is that
Richardson was decided prior to Koon v. United States,
518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), in which the
Supreme Court emphasized the importance of the district court's
departure power to the fair administration of the guideline
The goal of the Sentencing Guidelines is, of course,
to reduce unjustified disparities and so reach toward
the evenhandedness and neutrality that are the
distinguishing marks of any principled system of
justice. In this respect, the Guidelines provide
uniformity, predictability, and a degree of
detachment lacking in our earlier system. This, too,
must be remembered, however. It has been uniform and
constant in the federal judicial tradition for the
sentencing judge to consider every convicted person
as an individual and every case as a unique study in
the human failings that sometimes mitigate, sometimes
magnify, the crime and the punishment to ensue. We do
not understand it to have been the congressional
purpose to withdraw all sentencing discretion from
the United States district judge.
Id. at 113, 116 S.Ct. at 2053.
Richardson was also decided prior to the decision of the
Second Circuit in Rivers.*fn1 In Rivers the Second Circuit
recognized "the sentencing court's power to depart downward from
the sentencing range specified by the career offender guideline
when the court determines that such sentencing range overstates
the seriousness of the defendant's prior offenses or his
likelihood of recidivism." 50 F.3d at 1130. Nothing in the
circuit court's Rivers opinion suggests that the district court
should not examine the totality of the facts before it to
determine whether the defendant's conduct in connection with the
offense of conviction and his prior offenses place his case
outside the heartland of cases to which the guideline applies.
Implicit in a court's decision to apply a particular guideline
to the defendant before it is the conclusion that the Sentencing
Commission contemplated that the guideline would be applied to
precisely the set of facts before the court. As the Supreme Court
recognized in Koon, in assessing whether a particular case
comes within the heartland of the applicable guideline, "the
district court must make a refined assessment of the many facts
bearing on the outcome, informed by its vantage point and
day-to-day experience in criminal sentencing." Id. at 98, 116
S.Ct. at 2046-47.
Such a "refined assessment" seems particularly necessary in
applying the career offender guidelines because they encompass a
much broader spectrum of criminal conduct than do those
guidelines that are addressed to a single offense. It is easier
to project a heartland for cases involving theft of mail having a
value of $5000 than it is for career offender cases because the
latter guidelines applies to a far wider variety of offenses of
conviction and criminal histories.
"[D]ay-to-day experience in criminal sentencing" also suggests
that there will be many case where it is entirely appropriate to
apply the career offender guidelines to an offender whose offense
of conviction involves only a small quantity of narcotics. A
significant narcotics dealer may be arrested in possession of
only a small quantity of drugs or may have been arrested after
producing only a small amount of narcotics as a sample of his
wares. In such circumstances, if the defendant's prior
convictions or the surrounding facts demonstrate that he is a
substantial narcotics violator, the career offender guidelines
should be applied. Such is not the present case, however.
If one could present the case of Marvin Williams to those
members of the Sentencing Commission who adopted the career
offender guideline range of 262-327 months, it is impossible to
believe that any one of them would say that his case was in the
heartland of offenses to which the guideline was to apply. There
is nothing in the offenses that establish his criminal history
that suggests that he is a violent offender. While the Commission
contemplated that the career offender guidelines would be applied
to drug offenders whose crimes did not involve violence, the
Commission also recognized the need to avoid an overly literal
approach to Congress' expressed intention that a sentence at or
near the maximum be imposed on repeat narcotics violators. See
28 U.S.C. § 994(h). Thus, in setting forth the background of the
career offender guidelines the Commission stated:
in accord with its general guideline promulgation
authority under 28 U.S.C. § 994(a)-(f), and its
amendment authority under 28 U.S.C. § 994(o) and
(p), the Commission has modified the definition in
several respects to focus more precisely on the class
of recidivist offenders for whom a lengthy term of
imprisonment is appropriate. . . .
U.S.S.G. § 4B1.1, comment. (backg'd.). This passage suggests that
the Commission contemplated that a sentence of 262-327 months
would be reserved for a class of offenders who played a
substantial role in the distribution of narcotics. This was not
the role of Marvin Williams.
In each of his prior convictions Williams was a street seller
of narcotics — the lowest level on the distribution chain. Not
only did this make him the least significant member of the
distribution chain, but it made him the person most likely to be
arrested and convicted since he was out on the street where he
could easily be observed and approached by the police. For this
reason, his record of convictions should be considered less
significant for sentencing purposes than that of others in the
distribution chain who do not expose themselves so readily to the
risk of arrest and conviction. To equate two or three convictions
for street level sales of narcotics with two prior convictions
for distributing wholesale quantities of narcotics would
seriously over-represent the seriousness of the street seller's
It is also important to recognize that the street seller is the
person in the distribution chain who can be most easily replaced
by those who operate the distribution network. Unfortunately,
there are a large number of addicts and others who are
immediately available to replace the street seller who is carted
off to jail. This is not to say that street sellers should not be
punished, but it does suggest that street sellers were not the
type of offender who the Sentencing Commission pictured within
the heartland of a 262-327 month guideline.
To say that Marvin Williams is not a person whose conduct was
contemplated by the guideline at issue is not to suggest that his
prior record should not increase his sentence. Although the Court
has determined that his case is not within the heartland of cases
contemplated by the Commission in adopting the 262-327 month
guideline, Congress intended that "substantial prison terms
should be imposed on . . . repeat drug traffickers."
S.Rep. No. 98-225, at 175 (1983), reprinted in
1984 U.S.C.C.A.N. 3182, 3358. Thus, the Court rejects the contention
of Williams' counsel that it should simply sentence him on the
basis of the guidelines that would apply had his offense level
and criminal history not been adjusted because of career offender
Having determined that "the sentencing range specified by the
career offender guideline . . . overstates the seriousness of the
defendant's prior offenses," Rivers, 50 F.3d at 1130, the Court
at the sentencing hearing will hear argument as to how far it
should "reduce either the criminal history category or the
offense level, or both." Id. at 1331.