Old mandatory-minimum law lengthens Pittsburgh man's crack-cocaine sentence
May 23, 2011 4:00 AM
Eric Brewer Jr. with his daughter, Essence.
By Vivian Nereim Pittsburgh Post-Gazette
Eric Brewer's troubles in West Virginia started with a noise complaint. Responding to a call in Harrison County in January 2009, police arrested the 24-year-old man and his cousin for disorderly conduct, searched their bodies and car and discovered, altogether, about 75 packages of crack-cocaine.
The officers did not find any crack-cocaine on Mr. Brewer, an aspiring hip-hop artist and father of two from Pittsburgh's Knoxville neighborhood. But police said nine packages of the drug found in a car belonged to him, and Mr. Brewer was named in a federal indictment in which his cousin played a leading role.
In December, Mr. Brewer pleaded guilty to aiding in the possession with intent to distribute five grams or more of crack-cocaine, worth a street value of about $500. He was sentenced Wednesday to five years in federal prison, a mandatory minimum penalty authorized by a defunct law.
If Mr. Brewer were arrested today in the same situation, he would face a guideline sentence of 46 to 57 months incarceration. A federal law enacted in August eliminated the 60-month mandatory minimum for defendants like him, raising the amount of crack-cocaine needed to trigger that punishment to 28 grams.
The Fair Sentencing Act was lauded for lessening the vast and racially tinged disparities between sentences for crack-cocaine offenders, more likely to be African-American, and powder cocaine offenders, more likely to be white.
The sweep of the new law did not catch Mr. Brewer, though, who was indicted before it was implemented. That conundrum has blindsided defendants across the nation since the sentencing act was passed, frustrating their lawyers and baffling their families.
"I know people who have shot someone and gotten less than five years in jail," said Mr. Brewer's mother, Nicole Roach, who drove more than 100 miles in a rented car to attend her son's sentencing. She emerged in shock, recalling how Mr. Brewer's guilty pleas in 2005 and 2007 to drug possession resulted in probation.
"If there's a new law, it should be applied," said Mr. Brewer's fiancee, Ebony Tolliver, of Mount Washington. "How does that work?"
District Judge Irene M. Keeley's decision was not unprecedented -- many crack-cocaine offenders sentenced since August for earlier crimes have been penalized under the old law -- but federal judges throughout the nation are splitting on the matter.
"It is an issue that is cropping up all over," said Mr. Brewer's lawyer, Belinda Haynie, who plans to appeal his sentence.
"Literally dozens of district court judges are imposing the new guidelines," said Brian Kornbrath, federal public defender for the Northern District of West Virginia. Mr. Kornbrath represents a client facing a similar bind.
So far, none of the U.S. Circuit Courts, which hear appeals from district courts, has allowed the new sentencing law to apply if a defendant's offense date predated the new law. But Mr. Kornbrath said he hopes the U.S. Supreme Court eventually will address the issue.
The previous law, implemented in the 1980s, required anyone guilty of possessing five or more grams of crack-cocaine to serve a minimum sentence of five years in prison, though a defendant would need to be found with 500 grams of powder cocaine to face the same mandatory minimum.
At the time, crack-cocaine was the subject of a public health panic, feared to be far more dangerous and addictive than powder cocaine. Officials now say the two drugs are not fundamentally different; crack is powder cocaine processed into a crystalline form, smoked to achieve a quicker high.
The sentencing act did not equalize sentences for crack-cocaine and powder cocaine, but it greatly reduced the disparity. Lawmakers did not specify that the new guidelines should be applied retroactively, though, and judges have diverged on whom the law applies to.
In an October opinion, Maine U.S. District Judge D. Brock Hornby held that the new act should apply to defendants not yet sentenced.
"Understandably, Congress might not have wanted a large volume of previously sentenced offenders to be released from prison immediately," he wrote. "But what possible reason could there be to want judges to continue to impose new sentences that are not 'fair' over the next five years while the statute of limitations runs?"
More recently, Massachusetts U.S. District Judge Michael A. Ponsor blasted the idea of imposing the old penalties, writing that it would be "unendurable" for judges to do so.
Appellate courts have come down on the opposite side, considering the issue in light of a statute that bars the retroactive implementation of lesser penalties unless a new law specifically calls for it.
"We have sympathy for the two defendants here, who lost on a temporal roll of the cosmic dice and were sentenced under a structure which has now been recognized as unfair," Judge Terence Evans wrote in a 7th U.S. Circuit Court of Appeals opinion.
But the matter is for Congress to address, not courts, he wrote.
At Mr. Brewer's sentencing, Judge Keeley said she could not do anything about the mandatory minimum because of the way the law was written, according to the Clarksburg Exponent Telegram.
She recommended that Mr. Brewer be placed in a prison close to home and enroll in a drug treatment program, adding her opinion that the Pennsylvania courts had not provided him with the resources to deal with his problem, according to the Exponent Telegram.
Judge Keeley issued a sealed statement of reasons on her decision Friday. She declined to comment for this article.
Throughout the proceeding Wednesday, Mr. Brewer's father, who traveled from Texas, struggled to sift through "lawyer-speak" to understand why the judge followed the old law, he said.
"I know there's a lot of bad guys out there, but I just think that my son is a victim of circumstance," said Eric Brewer Sr., a 25-year Army veteran.
The elder Mr. Brewer said he believed part of the reason his son had strayed was his fault.
"I wasn't always there to mentor him, to be a father for him, because I was always overseas," he said.
Eric Brewer Jr.'s relatives said they believed the amount of crack-cocaine police associated with him was closer to one gram than five. At the young man's guilty plea, a police sergeant testified it was possible less than five grams were his; altogether, police found more than 30 grams.
"Really, in terms of the whole indictment, he had minimal involvement in what was going on down there," Ms. Haynie said of her client. His cousin, Andre Vaughn White, was sentenced to eight years and one month in prison.
To Ms. Tolliver, the worst punishment is reserved for Eric Brewer Jr.'s daughters, ages 3 and 4.
"That's five years that children are suffering without a father that's involved in their daily lives," Ms. Tolliver said. "That's a shame."
Until he was incarcerated in October, Eric Brewer Jr. worked at a local sushi restaurant, attended a Job Corps educational program, spent time with his children and rapped at local venues under the name "Fette Da Don," dreaming of making it big, Ms. Tolliver said.
His 3-year-old daughter believes that her father, incarcerated in West Virginia, is away at school.