Wednesday, July 19, 2006

Calculating Relevant Conduct

United States v. Karl Bullock, No. 05-2655 (July 18, 2006): Mr. Bullock pleaded guilty to five counts of heroin distribution, which involved a total of 110 grams. The PSR added another 8 kilos of heroin as relevant conduct, and the government requested the addition of 1.5 kilos of crack as still more relevant conduct. These amounts had been alleged in a conspiracy count brought against him, to which he refused to plead guilty and which was later dismissed. With all this relevant conduct, the guidelines range was natural life, but the government recommended a sentence of 30 years. Instead, the district judge imposed a sentence of 100 years, 20 years on each count, with all sentences to be served consecutively. The district judge, although obviously accepting that the 8 kilos of heroin and 1.5 kilos of crack were relevant conduct, made no explanation of how he came to that conclusion.

The Seventh Circuit reversed the finding of relevant conduct. A series of drug sales, without more, are not relevant conduct, and the Court is particularly wary of alleged relevant conduct that is remote in time. The alleged relevant conduct in this case occurred two years before the charged offenses. Although acknowledging that the earlier conduct could be relevant conduct, the Court stressed that the district judge must set out this finding explicitly and may not assume the existence of the relationship. The district judge in this case did not make any findings on this score.

The government asserted that Mr. Bullock (or those working for him) had sold the 8 kilos of heroin. He did not sell the crack, but it was the government’s theory that Mr. Bullock benefitted from the security at the building where he sold heroin and others sold crack. Although the crack dealers' main concern was protecting their crack operation, he was an incidental beneficiary of their efforts, and so crack sales by others should be treated as his relevant conduct. The Court flatly rejected this theory of relevant conduct. Mr. Bullock could be held accountable only for conduct that was directly related to his small sales of heroin two years later.

The Court also ruled that it was error to deny him acceptance of responsibility based on his challenging the government’s claims of relevant conduct.

Although the opinion dealt mostly with the calculation of the guidelines, it also suggested that a sentence of 100 years was unreasonable, even if it would have been within the guidelines. The court noted that defendants in a companion case before another judge (the case with the crack dealers) had received much lower sentences, and a 100-year sentence would seem to create the sort of disparity that section 3553(a) disfavors.