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Sentencing havoc from a speck of cocaine

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Federal courts repeatedly impose harsh prison sentences, including with drug sentencing schemes that should not exist in a just world.

Although the federal sentencing guidelines by now are advisory only, many federal judges still rely heavily on them, as did the sentencing judge of Timothy Jenkins, who gave and applied to Mr. Jenkins a four-level offense score enhancement for being a felon in possession of a firearm in connection with another felony offense. U.S. v. Jenkins, ___ F.3d ___ (4th Cir., May 15, 2009).

What was the other felony offense? Possession of less than a third of a gram of cocaine base. How much is a gram? It is one-thirtieth of an ounce, a tiny amount.

In any event, this enhancement for less than a third of a gram of cocaine increased Mr. Jenkins’s sentencing guidelines range from 46-57 months to 70-87 months. The judge gave him a 71-month sentence.

In discussing Jenkins’s complaint about the four-level enhancement, the Fourth Circuit wrote:

"Jenkins tries to turn this whole matter into a question of law. He makes two arguments as to why the district court erred in finding that the revolver ‘ha[d] the potential of facilitating’ his possession of cocaine. First, he suggests that the finding was improper as a matter of law because he possessed only a small amount of drugs for personal use, rather than a larger amount for distribution. This argument implies that the enhancement requires a drug trafficking offense. It requires only ‘another felony offense,’ however, and thus a drug possession offense is sufficient to support the enhancement when, as in this case, it constitutes a felony under state law. See U.S.S.G. § 2K2.1 cmt. n. 14(C) (defining ‘another felony offense’ as including any state offense ‘punishable by imprisonment for a term exceeding one year’). Furthermore, it is clear that the possession of a firearm can facilitate a simple drug possession offense. A firearm can embolden the actor to possess the drugs or provide the actor protection for himself and his drugs, which are likely to be personally valuable even in small amounts." Jenkins

Obama’s drug policy chief does not like the term "war on drugs", which is actually a war on the people. Now it is time to stop the war on the people, too. Jon Katz