The opinion of the court was delivered by: Joan Gottschall, District Judge
Defendant Ivory Dugar has filed a "Motion for the Court to Decide What Sentence Defendant is Eligible to Receive." Dugar requests that the court determine, in order that he may intelligently engage in plea negotiations, whether he will be sentenced as a career offender under Guideline 4B1.1.
Defendant Dugar is charged in two counts of an indictment. Count I charges him with conspiring to possess with intent to distribute in excess of 5 kilograms of cocaine and in excess of 50 grams of crack. In Count 12 he is charged with the substantive offense of possessing with intent to distribute an unspecified quantity of cocaine on or around May 10, 2002 in Aurora.
Guideline 4B1.1 provides that a defendant is a career offender if he was at least 18 years old at the time he committed the offense of conviction, the instant offense is either a crime of violence or a controlled substance offense, and the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. A career offender's criminal history category in every case shall be category VI. If this guideline applies, defendant Dugar is facing a mandatory minimum sentence of life imprisonment pursuant to 21(b)(1)(A) which provides, "If any person commits a violation . . . after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release. . . ." Page 2
Defendant concedes that he has three prior drug delivery convictions. However, he argues that in each of those cases, the very small amounts of drugs involved (transactions involving sales of .4 grams, .5 grams and .2 grams) render the application of this guideline "so severe and so inappropriate to defendant's activity that such enhancement is unconstitutional in violation of the Eighth Amendment to the United States Constitution.
The defendant has not cited, and therefore has not attempted to distinguish, Harmelin v. Michigan, 501 U.S. 957 (1991). Defendant in Harmelin, an individual with no prior felony convictions, was convicted of possessing 672 grams of cocaine and was sentenced to life imprisonment without possibility of parole. He argued that this sentence was grossly disproportionate and in violation of the Eighth Amendment. Justice Scalia wrote an opinion, joined by Justice Rehnquist, which rejected Harmelin's proportionality argument on the ground that there is no Eighth Amendment proportionality guarantee outside of the death penalty context. Justices Kennedy, O'Connor and Souter concurred in Justice Scalia's opinion to the extent that they concluded that, while the Eighth Amendment encompasses a narrow proportionality principle applicable to noncapital sentences, that principle was not offended by Harmelin's sentence because of the seriousness of his crime.
In this case, Dugar is charged with participating in a conspiracy to distribute in excess of 5 kilograms of cocaine and 50 grams of crack, a crime far more serious than Harmelin's offense of possession of 672 grams of cocaine. Moreover, Harmelin, unlike Dugar, was a first-time offender, and he was convicted of possession, rather than possession with intent to distribute. If five justices of the Supreme Court concluded that there was no Eighth Amendment bar to Harmelin's sentence, this court does not see how there can be any Eighth Amendment bar to the life without possibility of parole Page 3 sentence faced by defendant Dugar, who has three prior drug felony convictions and is charged in this case with a conspiracy to distribute a much larger quantity of drugs. This court finds this case to be controlled by Harmelin. See United States v. Kratsas, 45 F.3d 63, 69 (4th Cir. 1995)(concurring opinion by Judge Niemeyer).
Accordingly, Dugar's motion that the court decide what sentence he is eligible to receive is granted. On the basis of Harmelin v. Michigan, the court concludes that his proportionality argument cannot succeed. He is therefore eligible to be sentenced as a career offender, and a sentence of life imprisonment without possibility of parole is mandatory. Page 1
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