At Tilem & Campbell, we represent a wide variety of defendants charged with anything from traffic infractions to serious felonies including controlled substance offenses. In a recent federal case, we represented a defendant charged in the United States District Court for the Southern District of New York with four drug offenses involving a total of approximately 112 grams of crack cocaine. Three of the offenses were Class A felonies which carried a mandatory minimum sentence of 10 years with a maximum of life imprisonment. Due to a prior drug felony, however, had the defendant gone to trial and lost, he would have been facing 20 years to life. The remaining offense was a Class B felony which carried a mandatory minimum sentence of 5 years with a maximum of 40 years imprisonment.

Senior Partner, Peter Tilem, a former Assistant District Attorney in the New York County District Attorney’s Office (Manhattan) was defendant’s lead attorney and successfully negotiated a plea bargain pursuant to which the defendant would plead guilty as charged. In return the Government would not seek the 20 year mandatory minimum but instead would recommend the 10 year mandatory minimum. The plea agreement did not require that the defendant waive his right to appeal his sentence.

The imprisonment range recommended by the U.S. Sentencing Guidelines as calculated in the Pre-sentence Investigation Report was 78-97 months based upon a base offense level of 27. However, due to the statutory mandatory 10 year minimum term of imprisonment found in 21 U.S.C 841(a)(1) and 841(b)(1)(A) for offenses involving crack cocaine, the defendant’s minimum term imprisonment increased to 120 months pursuant to USSG § 5G1.1(b).

This sentencing range was substantially higher than it would have been had the offenses involved powder cocaine because the Guidelines as well as the relevant statute (21 U.S.C 841) treat one gram of crack cocaine as equivalent to 100 grams of powder cocaine. For example, had defendant been sentenced for a powder cocaine offense involving the same quantities, he would have been facing a sentencing range of 15-21 months.

Peter Tilem argued that he should be sentenced as if he had distributed powder cocaine. Citing Kimbrough v. U.S. 128 S.Ct. 558, 566 (2007) and Sentencing Commission Reports, Mr. Tilem opined that powder cocaine and crack are the same drug with the same physiological and physical effects. He further argued that the 100:1 cocaine/crack ratio and the corresponding statutory mandatory minimums for crack cocaine offenses were unconstitutional because said sentences violated defendant’s Equal Protection rights under both the strict scrutiny and rational basis tests.

Defendant also argued that the mandatory minimum as applied to him violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
Defendant cited the United States Supreme Court reasoning in Kimbrough which noted, among other things, that crack and powder cocaine are the same drug and cause the same effect on the user. The Kimbrough decision also observed that the fears relied upon by Congress when they passed the mandatory minimums for crack offenses never materialized. Defendant also cited numerous Sentencing Commission reports recommending the abolition of the 100:1 crack/powder cocaine ratio. This, argued defendant, showed there was no rational basis for the sentencing disparity between crack and powder cocaine offenses.

The District Court disagreed finding the mandatory minimums constitutional and sentenced defendant to the statutory mandatory minimum of 10 years. Tilem & Campbell appealed defendant’s sentence to the United States Court of Appeals for the Second Circuit. Attorney Peter Tilem, the managing member of Tilem & Campbell and the attorney primarily responsible for the firm’s Appellate Practice researched and authored a 60 page Brief seeking reversal of the District Court’s decision. The Brief and arguments raised therein will be discussed section-by-section in coming blogs.

If you would like to discuss an appeal, feel free to contact Tilem & Campbell at 1-888-ANY-CRIME or on the web at www.888AnyCrime.com. Managing Member Peter Tilem is an experienced appellate attorney having handled appeals at both the State and Federal level on a wide range of issues including concurrent federal and state sentencing; crack cocaine mandatory minimums; Youthful Offender adjudications; statute of limitations; Article 78s; police officer reinstatement; Sex Offender Registration classifications; licensing denials; probation conditions; and others.

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