ATTENTION ATTORNEYS! Sentencing guidelines misapplied By Michael S. Gelacak, former vice chairman of the United States Sentencing Commission One of my favorite literary references is from Alice's adventures in Wonderland. "The time has come," the Walrus said, "to talk of many things: Of shoes - and ships - and sealing wax - of cabbages - and kings." I am certain Lewis Carroll AKA Charles Lutwidge Dodgson never anticipated his prose in use to describe today's criminal justice system. Nevertheless, the fact remains that today's system, particularly with regard to sentencing, is somewhat akin to a wonderland, what a mess. The time has indeed come to talk of many things. It is time that the system of sentencing guidelines generated by the Sentencing Reform Act of 1984 be examined with a critical eye. It is time to look at what we have done and realize there are no panaceas. It simply is not acceptable for incarceration to be the first, last and only way of dealing with persons who commit criminal offenses. Nor is it acceptable for a guideline system to be in place that is cumbersome, overly complex and less concerned with justice and fairness than it is with the relentless purist of perfection. We really ought to know by now that the breadth of human experience, behavior and ingenuity can never be completely captured in statute. As is so often the case, something that looks so good on paper is problematic when applied in the real world. I believe there are hundreds, if not thousands, of cases where the federal sentencing guidelines have been misapplied. The question of relevant conduct in determining quantities of drugs in conspiracy cases is undoubtedly one of the most difficult applications in the guidelines. It is misunderstood and misapplied simply because it is so complex. Let's take a look at it. The guideline for drug distribution (2D1.1) is the appropriate guideline for a conspiracy conviction. The base offense level is determined on the basis of the quality of drugs involved in the offense. This determination is made on the basis of the provisions of the relevant conduct guideline (1B1.3). The first prong of relevant conduct (1B1.3(a)(1)(A)) holds a defendant accountable for all acts the defendant "committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused." In calculating drug quantity, first look for drug quantities that meet this standard. A general finding that the defendant aided and abetted the drug conspiracy is of no help in determining the quantity of drug for which relevant conduct could hold the defendant accountable. Instead, the focus should be on the specific act or acts the defendant aided and abetted and the drug quantity that can be tied to such specific acts. That presents opportunity for error in any number of cases, and there can be no doubt that error occurs given opportunity. The second prong of relevant conduct holds a defendant accountable for "all reasonably foreseeable acts and omissions of others that were in furtherance of the jointly undertaken criminal activity" (see 1B1.3(a)(1)(B)). Application note 2 to 1B1.3 offers considerable guidance and illustrations to help interpret the phrase "jointly undertaken criminal activity" and application of the guideline. It makes clear that the acts of others are included in calculation of the defendant's guideline range only if the court finds that these acts were in furtherance of the specific acts the defendant agreed to jointly undertake and were reasonable foreseeable to the defendant. Simply being aware of conspiracy activities is not enough. A defendant cannot be held accountable for quantities and types of drugs based on his or her knowledge of the conspiracy. Under the provisions of relevant conduct, and the law of most Circuits, knowledge alone is not enough. In order to determine the defendant's accountability for the conduct of others under subsection (a)(1)(B) [of the relevant conduct guideline], the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake - i.e., the scope of the specific conduct and objectives embraced by the defendant's agreement) (see 1B1.3, App. Note 2). I believe that in many cases it has not been brought to the Court's attention that such a finding as to the scope of the defendant's agreement was necessary or made. Consequently, defendants are being held accountable for drug amounts and perhaps drug types that do not appear to be within the scope of their agreements. U.S. v. Gilliam, 987 F.2nd 1009 (4th Cir. 1993) requires the Court to make an individualized determination of the relevant conduct for each defendant. Without so doing, significant error can result when less culpable participants are held for all the drugs distributed by a conspiracy. The commentary to the relevant conduct guideline, including the illustrations, is also helpful in understanding how this guideline was meant to be applied. It is probably quite safe to say that misapplication happens frequently. Application note 2 to 1B1.3 states also that "a defendant's relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct - in the case of a defendant who joins an ongoing drug distribution conspiracy knowing that it had been selling two kilograms of cocaine per week, the cocaine sold prior to the defendant joining the conspiracy is not included as relevant conduct in determining the defendant's offense level." Based on this alone, any drug quantities for which a conspiracy was responsible before a defendant joined it are beyond the scope of his or her relevant conduct. One again, the opportunity for error is apparent. I do not know how often misapplication occurs, but I am certain that it is not an infrequent occurrence. There are also other areas where misapplication almost certainly occurs. When you are dealing with a system contained in a manual that rivals the tax code in complexity, it should come as a surprise to no one that mistakes will be and are made. Hopefully this article and others to follow will lead to changes and better understanding. Ultimately it is my hope that injustices will be remedied and that clarification will be facilitated. Mr. Gelack can be reached at 703-266-3682, fax 703-266-6610, e-mail at MSGelacak@aol.com, and can testify on these matters and is a practicing consultant and attorney on criminal justice matters and sentencing guideline issues.