DRUG SENTENCING MINIMUMS QUESTIONS

As in all federal drug sentencing, there will be little leeway for a judge
to determine how many years Gabriel Rolando Rodriguez will spend in prison.

Rodriguez, who pleaded guilty to marijuana trafficking and money laundering
charges in October 2000, faces a minimum of 10 years and a maximum of life
in prison, pending any deals with prosecutors.

Depending on the amount of drugs a smuggler is convicted of distributing,
he is assigned a corresponding sentencing level. For example, 30 kilos of
cocaine corresponds to a Level 34 offense, equal to 12 years and seven
months to 15 years and eight months in prison for a first offense. Prior
criminal history can boost that prison time to as much as 27 years and
three months.

But, anything over five kilos, or about 11 pounds, of powder cocaine
triggers a 10-year mandatory minimum sentence without possibility of parole.

"Our drug punishments are just very harsh and very rigid in the federal
court system," said U.S. District Judge Hayden W. Head Jr. of Corpus
Christi. "So there are a lot of people going to jail and going to jail for
a long time."

But smugglers can avoid the mandatory minimum and lower their sentencing
level by cooperating with prosecutors and pleading guilty.

"Our goal is to go up the ladder," said Assistant U.S. Attorney Robert
Galvan. Of the 400 federal cases in Corpus Christi last year, he said,
two-thirds were drug related.

The vast majority of drug cases around the nation end in a plea bargain,
prosecutors say.

Each defendant is asked to give names in return for lighter sentencing.
Rodriguez was taken down by one of his mules, or drug runners, who was
stopped with 73 pounds of marijuana at the Sarita Border Patrol checkpoint.

By cooperating with prosecutors, but not necessarily agreeing to testify
against others, a defendant can qualify for the "safety valve," worth a
reduction of two levels and a way out of the mandatory minimum.

A defendant who agrees to testify against his former co-conspirators can
win probation and a place in the witness protection program.

New sentencing guidelines instituted Nov. 1 allow judges to reduce a
smuggler's level by two points if prosecutors determine the smuggler is
just a mule, or courier in a larger organization.

Beyond these deals with prosecutors, judges have very little discretion in
sentencing drug smugglers. They can't take into account the defendant's
age, economic situation or family status and are bound by the higher
mathematics of the sentencing table.

U.S. District Judge Robert W. Gettleman in Chicago said the guidelines are
far too severe, especially for the many young, non-violent offenders who
are not major players in drug organizations.

"The penalties for drug dealing are totally out of proportion with the
criminality," he said. "We are imposing sentences that should be reserved
for the worst criminals."

The guidelines, instituted during the get-tough-on-drugs days of the Reagan
administration, were meant to bring uniformity to the federal system as
well as reassurance to an alarmed public, said Myrna Cintron, a juvenile
justice professor at Prairie View A&M University.

"Legislators instituted the guidelines so we all look tough on crime, but
the end result is we have an overcrowded prison system," Cintron said.

Some federal judges say they feel hamstrung by the guidelines and
especially the mandatory minimums.

U.S. District Judge Janis Graham Jack of Corpus Christi said mandatory
minimums fail to take into account why someone decided to traffic in drugs
or what the impact of the crime was on society. "Some of us would
appreciate a little more discretion in applying the guidelines," she said.

Gettleman said that some offenders would be better served by treatment
programs or boot camp - something that's rarely a possibility under the
guidelines.

Both Jack and Head said they see flaws in the nation's approach to fighting
drugs, but they're not prepared to abandon it.

"I don't know what else you could do," Head said. "We can't stop what we're
doing. I would hate to see how bad it would be if we stopped prosecuting,
stopped trying to enforce that law."

Jack laments the fact that the flow of drugs seems unabated despite buildup
of law enforcement in South Texas, and she said more attention needs to be
focused on addressing the demand for drugs.

"At some point you have to address the use of drugs and that's not for the
judiciary, I don't believe," she said.

U.S. Appeals Judge Gilbert S. Merritt of Nashville, Tenn., said that after
25 years as a judge, he favors experimenting with legalization in certain
states or areas. "I just have the general feeling that what we're doing
here is running into the same problems as with Prohibition - but with
longer sentences," he said.