Phone Use Qualifies Pot Grower for Tougher Penalty

7th Circuit decides what counts toward career offender status.

BY DARRYL VAN DUCH

NATIONAL LAW JOURNAL STAFF REPORTER

The National Law Journal (p. A06)
Monday, May 12, 1997

A WISCONSIN MARIJUANA grower's "use of a telephone to facilitate" a
felony drug crime was a "controlled substance offense" under the
U.S. Sentencing Guidelines, the 7th U.S. Circuit Court of Appeals
ruled April 23. U.S. v. Mueller, 953777.

As a result, the court stated, any one of several telephone
conspiracy convictions were properly counted towards qualifying the
grower as a "career offender"; that is, a defendant who has just
been convicted of a felonious controlled substance offense or a
violent crime and has at least two prior felony convictions also
involving a drug or violent crime.

The price for attaining career offender status is that the
potential jail term can be increased about a year, depending on the
offense level, the defendant's criminal history, and any downward
adjustments for accepting responsibility and cooperating with
authorities.

The decision to include the relatively new "use of a telephone"
offenses in the traditional class of "controlled substance
offenses" under the Sentencing Guidelines is one of first
impression in the 7th Circuit, noted Judge Daniel A. Manion, who
wrote the opinion for a unanimous threejudge panel.

According to Judge Manion, the plain language of the federal
Sentencing Guidelines have long provided that controlled substance
offenses include aidingandabetting offenses. And earlier rulings
in the 4th and 9th circuits, he noted, similarly argued that a
defendant cannot logically be convicted of using a telephone to
facilitate a drug offense unless he aided, abetted or committed the
drug offense in the first place.

No History

The defense counsel handling the appeal, Milwaukee sole
practitioner Allan D. Krezminski, disagreed. He claimed there is
nothing in the legislative history to indicate that the use of a
telephone in drug offenses was intended either by Congress or the
Sentencing Commission to be automatically designated as a
controlled substance offense for sentencing purposes.

William Mueller's troubles began in March 1994 when an informant
told the Milwaukee Metropolitan Drug Unit that a suburban couple
had set up an illegal drug trade out of their farm. A search of the
farm revealed "an extensive, twostory marijuana growing operation
that included 865 live marijuana plants and 576 pots containing
root systems of previously harvested marijuana plants," the
appellate decision stated. When confronted, Mr. Mueller, now 51,
admitted he grew pot for five to six years.

A grand jury indicted Mr. Mueller and three other defendants for a
laundry list of felonies, including conspiring to manufacture more
than 1,000 marijuana plants and possessing marijuana with intent to
distribute. The crimes entailed potential sentences of 30 years to
life in prison.

In recognition of Mr. Mueller's cooperation in helping authorities
investigate the coconspirators, however, the U.S. attorney's
office agreed to a plea bargain that significantly reduced the
charges. He would plead guilty only to four useofatelephone
counts and two counts of money laundering, which were expected to
garner a sentence of 77 to 96 months.

Meanwhile, probation officials insisted that Mr. Mueller, convicted
of drug felonies on at least two previous occasions, was a career
offender under the Sentencing Guidelines. As such, they said, he
was subject to an enhanced sentence range of 110 to 137 months.

U.S. District Judge Robert W. Warren agreed with probation, but
also granted the prosecutors' request for a downward adjustment to
84 to 105 months because the defendant had been cooperative. The
judge imposed 84 months, which the appellate court said meant that
Mr. Mueller got only seven months more than if he had not been a
career offender.

The defendant in this case "should have little to complain" about,
the appellate court concluded, having been the beneficiary of a
"windfall" in leniency after "originally facing 30 years to life in
prison" for his crimes.

Countered Mr. Krezminski, "The court's saying Mr. Miller shouldn't
complain because he got a great deal" doesn't address whether the
court was correctly interpreting and applying the law for this or
future cases.