Cocaine sentencing inequity goes to top court
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Senior U.S. District Judge Alan N. Bloch is known for handing down tough sentences. That's why it was so surprising when, at Percy Dillon's sentencing for selling crack and powder cocaine in 1993, Judge Bloch said on the record that he thought the young man was getting a raw deal.
"I don't say to you that these penalties are fair. I don't think they are fair," Judge Bloch said at the time. "I think they are entirely too high for the crime you have committed even though it is a serious crime."
But Judge Bloch, who first took the bench in 1979, went on to say that he felt that he was bound by the then-mandatory sentencing guidelines.
He ordered Mr. Dillon, who was 24 years old and had only two previous misdemeanor convictions, to serve nearly 27 years in prison.
"I was basically taking the rest of his life away," Judge Bloch later said at an annual meeting of the Pittsburgh American Civil Liberties Union.
So, in 2008, when Mr. Dillon submitted a motion to get his sentence reduced under a newly enacted amendment designed to address the inequity between powder and crack cocaine guidelines, he thought the judge might take the opportunity to give him a break.
Under the U.S. Sentencing Commission's change, defendants who had previously been sentenced for selling crack cocaine could petition for a two-level reduction.
In Mr. Dillon's case, that amounted to just over four years off his original sentence. But he argued to Judge Bloch that the court could reduce his time even more because the mandatory guidelines in place at the time he was originally punished were now advisory only.
Judge Bloch disagreed with him, and so did the 3rd U.S. Circuit Court of Appeals.
But on Tuesday, Mr. Dillon's federal public defender will get a chance to persuade the U.S. Supreme Court.
Mr. Dillon had never spent any time in jail before receiving his federal sentence in November 1993.
Though he was involved in a dangerous trade, Mr. Dillon figured he would be sent to the minimum-security camp when he was ordered to the Lompoc Federal Correctional Complex, about 175 miles northwest of Los Angeles.
"They drove across the street to the penitentiary. I'm like, 'Oh, my goodness, I'm going up in there?' Everyone looked at you like they want to kill you," said Mr. Dillon, who grew up in San Francisco.
"When I first was convicted, I was angry," Mr. Dillon said during a recent phone interview from the U.S. Penitentiary in Atwater, Calif. "I was upset like I was wronged and didn't deserve what happened to me."
It took him a while to adjust to prison life -- and to accept his fate.
When he was transferred in 1997 to the U.S. Penitentiary in Atlanta, he became interested in studying African-American history and culture. He started to read the works of Marcus Garvey and others.
"That's what inspired me. They just took me to a different level in life," he said.
Mr. Dillon, now 40, decided that he would not take anything negative from his prison stay.
"The only thing that could come from this is something good," he said.
Working in conjunction with staff at the University of California at Berkeley, Mr. Dillon helped implement a Kwanzaa program, as well as an African-American studies program at USP Atwater.
He also developed a life-skills program for youth in the community, in which other incarcerated men would serve as mentors.
Mr. Dillon "realized that his true restitution must be made and paid to the African-American community, his community," wrote Leng Miller, executive director of Hunters Point Family agency. She went on to describe Mr. Dillon as a "positive example of a strong African-American man and an asset to his community."
Mr. Dillon sees it as an obligation.
"You have to look at what's going on in the street today. [Young men] have no knowledge of self or culture beyond rap videos," he said.
When Mr. Dillon was young, he admits he got involved in selling drugs "to get fast money in bundles. ... I was chasing money -- astronomical amounts of money."
He came from a good background. He had parents who loved him and had good jobs, but none of that mattered.
"I was rebellious. I wanted to be me."
Now he regrets his decisions and has been working for years to make up for them.
Mr. Dillon earned his GED and a variety of training certificates, including ones in property management and custodial maintenance. He also studied the law.
When he learned that the U.S. Sentencing Commission was going to change the crack cocaine rules, he did his own research and represented himself in his first motion for sentence reduction -- sending it even before the commission made the amendment retroactive.
Judge Bloch dropped Mr. Dillon's sentence the requisite two levels, to 22 years 6 months.
"When he didn't go any lower, I was like, 'Damn, I have to do eight more years.' I didn't give up, though."
He appealed to the 3rd U.S. Circuit Court of Appeals, which agreed with Judge Bloch. Though the unanimous opinion found that Mr. Dillon would "likely be an ideal candidate for a non-Guidelines sentence," the three judges on the case agreed that the Supreme Court decision did not apply to sentence modification proceedings.
Mr. Dillon asked the U.S. Supreme Court to review his case, and in December, he learned they would take it.
"I was overjoyed. It was beautiful."
Doug Berman, a law professor at Ohio State University and expert in sentencing law, said he believes the court purposely chose Mr. Dillon's case.
Other defendants challenging the crack retroactivity reductions have asked the Supreme Court for review, and the court has rejected them.
"They have a sympathetic defendant here," he said.
What might help Mr. Dillon are the comments originally made by Judge Bloch lamenting that his hands were tied.
"I think that matters a lot," Mr. Berman said. "It makes it hard for the court to dodge that issue."
It is especially interesting that the Supreme Court took this type of case at all, because there is no split among the nine appellate circuit courts on the issue.
But, Mr. Berman said, with this issue, the Supreme Court justices will be able to make the law suit their preferences.
"You can wind your way toward whatever conclusion you find is appealing -- depending on what mechanism you use," Mr. Berman said.
The decision that made the sentencing guidelines advisory in the 2005 case, United States v. Booker, stands for the broad principle that judges should have more discretion, Mr. Berman said.
So, if a majority of Supreme Court justices want to continue that trend, it is likely they will make Booker apply to the crack retroactivity amendment. But the court could also rule in favor of Mr. Dillon without making its findings carry across the board for every other defendant.
Federal prosecutors will argue that the proceedings to reduce crack penalties are not resentencings -- which fall under the findings of Booker and require full hearings and defense counsel -- but only a modification.
In its brief, the Department of Justice wrote that the crack reductions are a "one-way ratchet to lower a defendant's otherwise-final sentence.
"Were this court to accept the proposition that district courts must be granted unlimited discretion to make sentence adjustments [in crack] proceedings, every retroactive guidelines amendment would carry the potential to reopen thousands of sentences."
Thus far, 23,000 defendants have sought reductions and 15,000 have been granted, resulting in an average decreased prison time of 25 months, the government said.
The U.S. Sentencing Commission argued in a brief in support of the government that changing the scope of sentence reductions would weigh against making similar guideline amendments retroactive in the future, in part because of the administrative burden that would come with it.
But Mr. Dillon's attorneys disagree.
"[Even] if concerns about administrative burdens could prevent courts from complying with the Constitution, which they cannot, any additional work required 'to address a fundamental unfairness and to provide the relief ... to those who are deserving,' is 'sufficient[ly] justif[ied,]' " wrote Federal Public Defender Lisa Freeland, quoting U.S. District Judge Reggie B. Walton of Washington, D.C.
Mr. Dillon's case carries other elements.
He argues that his criminal history score was calculated incorrectly because a misdemeanor conviction in California that resulted in a suspended sentence was counted against him. Further, Mr. Dillon's sentence includes a mandatory five-year additional prison term because a co-defendant allegedly participated in the drug conspiracy with a firearm, though during the incident where the gun was found, Mr. Dillon was not even in Pennsylvania.
"That they chose this particular case is neither coincidental nor inconsequential on how this case will play out," Mr. Berman said. "When we have an opportunity to look at these cases a second time, we discover a lot of imperfections to put it kindly, and injustices to put it boldly."
Mr. Dillon will not get to attend the oral argument on Tuesday, but that doesn't diminish his excitement.
"I could be the catalyst for changing law," Mr. Dillon said.
As he awaits a decision on his case, he continues to go about his daily routine the same as always. He gets 300 minutes of phone time each month and gets visitors every two to four weeks.
"I don't call home and cry or whine about a visit, because to me you're just adding stress to a situation you created," Mr. Dillon said.
He talks to his parents regularly.
"Our relationship has grown now so much," he said. "It's not like they're my moms or pops. They're my best friends."
He sees his mother, who lives in Fresno, regularly. His father, who lives in Mississippi, visits every three or four months.
Unlike visits between glass in some prisons, Mr. Dillon gets to have contact visits with his family. They sit in a common room at a table together, where they can hug, hold hands, pray together or play games.
If Mr. Dillon loses at the high court, he said it won't retard the progress he has made personally.
"I'll stay the course," he said. "It won't change my attitude, but I'll be disappointed."
First Published March 28, 2010 12:00 am