Downward Departure Allowed for Low-Level Drug Organization Employees

SENTENCING March 1995

The U.S. Court of Appeals for the Second Circuit has allowed a downward departure in sentence for two employees of a drug-selling operation, citing the facts that they worked long hours and distributed the amount of drugs for which they had been convicted over a long period of time (U.S. v. Lara, No. 93-1750, 1995WL49286 (2d. Cir. 1995), affirming in part 831 F.Supp. 246; 54 CrL 1016).

The court found that Congress, in writing mandatory minimum sentences, and the U.S. Sentencing Commission, in establishing the Sentencing Guidelines, intended for sentencing departures to be made in certain circumstances. The court said two of the defendants, Pedro Lara and Ramon Burgos, worked long hours and distributed the drugs over such a long period of time that they should not be sentenced under the same criteria as high-level dealers. Lara, for instance, worked 12 hours per day, six days per week, and earned $500 per week.

The defendants were sentenced initially to 19 and 15 years, but a district court used a "quantity/time factor" to decrease their sentences to ten years each based on their minimal role. The district judge calculated the sentence by dividing the per-week amount attributable to each defendant by two (each of the defendants worked 12-hours per day and worked at a 24-hour per day operation). Such departures take into account "the relationship between the amount of narcotics distributed by a defendant and the length of time it took the defendant to accomplish the distribution," the district court ruled.

The Sentencing Guidelines, when applied to lower-level dealers may "overrepresent the culpability of a defendant and ... the 'quantity/time factor,' which was not adequately considered by the [Sentencing] Commission, was available as a basis for departure," the Court of Appeals ruled.

The court upheld the sentence of another defendant in the case, Anibal Abad, who bought drugs from the operation.