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U.S. v. FISHER

October 11, 2005.

UNITED STATES OF AMERICA
v.
OTIS FISHER, Defendant.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

I. INTRODUCTION

  In the eleven years that I have served as a district court judge, I have been troubled by the exceedingly harsh sentences imposed on those who deal in crack cocaine.*fn1 I find it unsettling, for example, that a defendant who deals five grams of crack cocaine faces the same sentence as a defendant who deals five hundred grams of powder cocaine. This stark disparity is commonly referred to as the "100:1 ratio."*fn2

  Congress adopted the 100:1 ratio in 1986, setting mandatory minimum sentences based on the quantity of cocaine, in crack or powder form.*fn3 The Sentencing Commission, following Congress' lead, adopted the same ratio in 1987, when it fashioned the Drug Quantity Table found at section 2D1.1(c) of the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G."). Under the Guidelines, the Drug Quantity Table determines a defendant's offense level, which ultimately controls the Guidelines sentence range.

  After the Supreme Court's decision in United States v. Booker,*fn4 the statutory minimum sentences remain mandatory, but the Guidelines can no longer bind a sentencing court. Indeed, it would be unconstitutional under Booker for a court to treat the Guidelines as mandatory and conclude that it could not impose a sentence above or below the sentencing range determined primarily by the Drug Quantity Table.

  In United States v. Crosby, the Second Circuit outlined sentencing procedures a court must follow after Booker.*fn5 First, the court must set the Guidelines range (including any departures) — here by applying the 100:1 ratio contained in the Drug Quantity Table. The court must then determine a reasonable sentence based on all of the factors listed in section 3553(a) of Title 18 of the United States Code ("section 3553(a)"). That section requires a court to impose a sentence that is "sufficient but not greater than necessary to comply with the purposes [of sentencing]."*fn6 To do this, a court must be free to impose a sentence above or below the range set by the Guidelines.

  This Opinion addresses the tension between a mandatory minimum sentence and a non-Guidelines sentence, the former based solely on the notion that crack cocaine dealers should be punished much more severely than powder cocaine dealers as a function of relative drug quantity. In short, the sentencing disparity created by the 100:1 ratio presents two significant dilemmas. First, the ratio is binding for one purpose — imposing the mandatory minimum sentence — but is not binding for the purpose of imposing the ultimate sentence. Second, the Guidelines sentence, determined primarily by drug quantity, is often inconsistent with section 3553(a) because it is greater than necessary to achieve the goals of sentencing. After a five-week jury trial, Otis Fisher was convicted of conspiracy to distribute crack cocaine (Count 1) and use of a firearm during a drug-trafficking offense (Count 2). On September 20, 2005, I sentenced Fisher to a non-Guidelines sentence of 151 months on Count 1 and a mandatory sixty consecutive months on Count 2, to be followed by a five-year period of supervised release. This Opinion sets forth my reasons for imposing a non-Guidelines sentence.

  II. BACKGROUND

  A. The Offense Conduct

  1. The Organization

  Between 1999 and 2003, two of Fisher's co-defendants, Ricardo Rodriguez and Paul Thompson, were the leaders of an organization known as the Killer Bronx Committee or KBC, which distributed crack cocaine in the Bronx*fn7 and Vermont.*fn8 Its members included Fisher, Jason Rose, Junior Robinson, Damion Henry, Tai Todd, Stephen Reid, Kevin Jones, Kevin Brown, Tyrone Kindred, Orlando Gordon and others known and unknown.*fn9 Fisher, together with others, helped manage the organization's crack-selling operations.*fn10 The organization controlled the sale of crack cocaine on 228th Street between White Plains Road and Barnes Avenue in the Bronx.*fn11 Rodriguez and Thompson distributed crack cocaine to their sellers, including Fisher, Henry, Jones, and Reid, who then distributed it to the customers.*fn12 From January 2001 onward, KBC's crack cocaine business was very successful.*fn13 Members of the organization were selling large amounts of crack cocaine each day, and customers were constantly streaming into the organization's stash houses.*fn14 The organization branched out into Vermont in April 2003.*fn15

  Rock testified that she met Fisher in April 2003 in Winooski, Vermont.*fn16 Fisher and Rock began dating and Fisher soon moved into Rock's house.*fn17 Shortly thereafter, Fisher began bringing other KBC members to Rock's house for the purpose of selling crack cocaine.*fn18 Fisher and Rodriguez cooked crack cocaine inside Rock's house and, along with Robinson, packaged it there.*fn19 All of the members carried firearms while in Rock's house.*fn20 Rock testified that during the three to four month period that the organization sold crack cocaine from her home, she observed sales around the clock.*fn21 Beginning in October 2003, members of KBC ran their business from another location in Winooski, Vermont.*fn22 After several police officers raided Rock's house and arrested her, she did not see any KBC member again until trial.*fn23 In December 2003, the group returned to East 228th Street to resume selling drugs in the Bronx.*fn24 Detectives from the Bronx Gang Squad arrested KBC members over a two-day period beginning on January 26, 2004.*fn25

  2. Drug Quantity

  Cooperator testimony, from Kindred, Gordon and Rock, established that Fisher was a fully active and knowing participant in the group led by Rodriguez and Thompson. Fisher joined the group in 2001, after it took control of the crack cocaine trade on East 228th Street and White Plains Road. Specifically, Kindred testified that he observed Fisher obtain crack cocaine from Rodriguez and Thompson.*fn26 Kindred also testified that Fisher sold crack cocaine daily on the street, served as a lookout, and packaged crack cocaine in the group's stash houses.*fn27 Kindred further testified that Rodriguez and Thompson gave Fisher packages containing $130 or $260 worth of crack cocaine every day for months at a time.*fn28 Gordon similarly testified that he observed Fisher and his co-defendants sell over $260 worth of crack cocaine, per day, over a period of months between 2001 and 2002.*fn29 The testimony of Kindred and Gordon established that it was readily foreseeable to Fisher that he and his co-conspirators sold at least 1.5 kilograms of crack cocaine during the two year period that Fisher was a member.

  The testimony and evidence concerning the Vermont portion of the conspiracy only served to reinforce a finding that Fisher was responsible for selling more than 1.5 kilograms of crack cocaine. Rock witnessed Fisher and his co-defendants sell hundreds of pieces of crack cocaine from her home, ranging in value from $50 to $250.*fn30 Rock testified that 3.5 grams of crack cocaine sold for $250.*fn31 She testified that crack cocaine sales at her house took place around the clock.*fn32 Furthermore, Rock's testimony that Fisher was selling ...


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