"You could indict a ham sandwich..."

Sentencing transcript of [defendant], Case: 94-CR-***

THE COURT: The sentence in this case is kind of horrendous.

(DEFENSE ATTNY), MR. MOORE: You and I had a discussion about the Eighth Amendment during my last trial with you. To make a long colloquy about the severity of this sentence would be fruitless. I understand that and [defendant] understands that and it's really a tragedy for his whole family and for him.

(JUDGE) THE COURT: Mr. Jaquith [Prosecutor], do you have anything you wish to say?

(PROSECUTOR) MR. JAQUITH: As the Court just alluded to, this is a case that is, first, governed by the statutory minimum penalty. From our perspective it was a penalty earned by the defendant. He was manufacturing a large quantity of marijuana. [The defendant, was in possession of 3 pounds of marijuana].

THE COURT: Well, I have to, but as I have said before, and let me say it again, there is prosecutorial discretion, is there not, Mr. Jaquith?

MR. JAQUITH: We still have a little left, your Honor.

THE COURT: Well, you have got a lot left. What that means is that the prosecutors decide who to prosecute, do they not?

MR. JAQUITH: Yes.

THE COURT: And they decide what to prosecute them for, do they not?

MR. JAQUITH: We do, your Honor, with the help of the grand jury.

THE COURT: But as former Chief Judge Wachler said, you could indict a ham sandwich; isn't that correct?

MR. JAQUITH: That is not my experience, your Honor.

THE COURT: Well, in any event, you decide who to prosecute and who - and what to prosecute them for; right?

MR. JAQUITH: Yes, your Honor.

THE COURT: And a mandatory minimum tells me what the sentence is; isn't that correct?

MR. JAQUITH: Yes, your Honor.

THE COURT: Then I might as well be Charlie McCarthy. You really don't need me, do you?

MR. JAQUITH: I would never say that, your Honor.

THE COURT: Well, you have decided who to prosecute, what to prosecute them for, Congress says what the sentence is to be. What do you need me for?

In any event, Mr. [defendant], I have read the presentence report. As you know there is a mandatory minimum in this case. Without further ado, I assume it is fairly painful for you to stand there. I find that the base offense level is 22 and the total offense level is 19 and the criminal history category is 2 and the Guideline imprisonment range is 33 to 41 months. However, in accordance with USSG 5Gl.lB, as the statutory-required minimum sentence is greater than the maximum of the applicable Guideline imprisonment range, the statutorily-required minimum sentence is 60 months and that becomes the Guideline range despite what anybody outside of Congress thinks about that.

I accept your plea of guilty, Mr. [defendant], to Count One in the indictment, and pursuant to the Sentencing Reform Act, it is the judgment of this Court that you are hereby committed to the custody of the Bureau of Prisons to be imprisoned. . .