Metropolitan News-Enterprise


Thursday, August 9, 2018


Page 3


Ninth Circuit:

Mitigating Circumstances Cannot Justify Term Lower Than Mandatory Minimum

Says Judge Wright Was Wrong to Sentence Man Who Pled Guilty to Distributing In Excess of Five Grams of Methamphetamine to Less Than Five Years


By a MetNews Staff Writer


No matter how emotionally compelling reasons might be for mercy in the sentencing of a person convicted of distributing five grams or more of methamphetamine, the statutory command of a prison sentence of at least five years cannot be averted, under a decision of the Ninth U.S. Circuit Court of Appeals.

In a memorandum opinion on Tuesday, a three-judge panel indicated agreement with the government that District Court Judge Otis D. Wright II of the Central District of California improperly sentenced Darren Eugene Ellis to one year and a day in prison. In doing so, Wright declared:

“[H]ere, my conscience, and certainly all of our desire to make sure justice is done, tells me a long period of incarceration is not what is called for here. It is not reasonable.”

The appeals panel responded:

“Whether or not we would agree, Congress does not. It requires a mandatory minimum sentence far, far higher than the sentence Judge Wright found reasonable and appropriate. So we have no choice but to vacate Ellis’s sentence and remand for resentencing consistent with the applicable five-year minimum sentence.”

‘Significant,’ ‘Moving’ Circumstances

The panel said that notwithstanding “significant and moving mitigating evidence,” it remains that under a federal drug law, a person convicted of dispensing five grams or more of methamphetamine “shall be sentenced to a term of imprisonment which may not be less than 5 years,” except under two circumstances that did not apply.

Five grams is approximately the content of a teaspoon. Ellis admitted distributing about 24.6 grams of the illicit substance.

The opinion does not disclosure the nature of the mitigating evidence, explaining in a footnote:

“We do not summarize that mitigating evidence here, as it was submitted under seal. Suffice it to say that we understand why Judge Wright found the evidence compelling.”

‘Sentencing Entrapment’

Ellis cannot now claim “sentencing entrapment,” the opinion says, because in entering into a plea bargain, he waived any affirmative defenses.

Rejecting the contention that a five-year sentence violates the Eighth Amendment right against cruel and unusual punishment, the panel said:

“Although the five-year mandatory minimum sentence is certainly a serious term of imprisonment, it is not so unusual or disproportionate to Ellis’ crime of distributing just under an ounce of methamphetamine—a not-tiny amount of a serious, harmful drug to warrant an ‘exceedingly rare’ court intervention under the Eighth Amendment.”

Ellis was initially charged by indictment on Nov. 10, 2015 with two counts of distribution of methamphetamine, two counts of distribution of cocaine, and one count of being a felon in possession of a firearm and ammunition.

The Ninth Circuit panel was comprised of Circuit Judges Marsha Berzon and N. Randy Smith, along with District Court Judge P. Kevin Castel of the Southern District of New York, sitting by designation.

The case is U.S. v. Ellis, No. 16-50396.


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