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Federal Judge: ‘Offense of Conviction’ Under Guidelines Excludes Relevant Conduct for Sentencing

by Dale Chappell

In a case where a defendant admitted to selling drugs that previously led to an overdose-death but was only convicted of selling drugs that did not result in a death, the U.S. District Court for the Southern District of West Virginia held in a published sentencing decision on December 17, 2020, that the “offense of conviction,” as defined by the U.S. Sentencing Guidelines (“USSG”), does not include relevant conduct encompassing the overdose-death for purposes of calculating the base offense level.

This distinction was significant for Brooke Kimble, who had sold heroin on at least three occasions, with one of the earlier sales leading to an overdose-death. What she though was heroin, though, was actually fentanyl, a potent synthetic narcotic that’s lethal in amounts someone expecting heroin would inject. When her customer died of an overdose on fentanyl, Kimble wasn’t charged with his death. Instead, law enforcement allowed her to keep selling the drug she thought was heroin and then charged her with two counts of distributing fentanyl under 21 U.S.C. § 841(a). Had the Government also charged her with the overdose-death, she faced a mandatory minimum 20 years in federal prison without parole.

But the Government offered a deal for Kimble to plead guilty to one of the counts, it would agree to a sentence of only half of that mandatory 20 years, and it agreed not to charge her for the death. Fearing two decades in prison, Kimble agreed to the ten-year deal. While the court accepted her guilty plea, it ultimately rejected the plea agreement and allowed Kimble to withdraw her plea, if she chose to do so.

The court calculated Kimble’s Guidelines sentencing range (“GSR”) and determined that the presentence report (“PSR”) calculation was wrong; it had used the overdose-death in setting the base offense level, a 16-point enhancement. This increased Kimble’s GSR from 0-6 months up to 168-210 months. The court explained that USSG § 2D1.1(a)(2) requires a base offense level of 38 when “the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance” sold by the defendant. In effect, the PSR was recommending a sentence as if Kimble had been charged with the overdose-death.

However, the term “offense of conviction” is narrow, the court explained, and does not include relevant or unconvicted conduct. It is defined under USSG § 1B1.2(a) as “the offense conduct charged in the count of the indictment or information of which the defendant was convicted.” To be sure, the overdose-death was part of Kimble’s relevant conduct and played a role at sentencing, the court said, and concluded that with a criminal history and a base offense level of 10, Kimble faced only 0-6 months in prison. However, the court took Kimble’s relevant conduct into consideration and “varied” upward to 60 months. The judge explained that this significant variance was needed to (1) “deter others” from this type of crime, (2) “promote respect for the law,” and (3) “protect the public” from drug dealers like Kimble. All of which are sentencing factors under 18 U.S.C. § 3553(a).

“She was reckless and indifferent to people she was harming by fueling her addictions. She acted with an atypical disregard for the known consequences of a deadly overdose. She stated that she knew what she was doing was wrong and that it made her feel bad, but that she continued to sell heroin because if she did not, then people would just go buy it somewhere else,” the court stated in varying upward five times what the Guidelines called for. “We must also deter the dealers who deal recklessly and with indifference to the consequences of what they do. Deadly consequences in the drug business do not require a movie-style bad guy. It only takes a 22-year-old kid recklessly—and with great indifference to human life—selling a stamp of what she may well have though was heroin, a known controlled substance, but was in fact, fentanyl.” See: United States v. Kimble, 2020 U.S. Dist. LEXIS 237529 (S.D.W. Va. Dec. 17, 2020).

Writer’s note: While this may seem like a “win” for the defendant here, this opinion shows the continued mistaken belief that longer sentences are necessary to deter crime. NYU law professor Rachel Barkow testified before Congress on June 17, saying that longer sentences don’t work. She should know; she’s a former member of the U.S. Sentencing Commission. Here’s part of what she said to Congress: “Let’s start with the assumption that long sentences deter crime. It is one of the more settled aspects of criminology that the best way to deter crime is by increasing the odds of detection, not by changing the length of the sentence. So, if you have limited resources, you are better off spending them on mechanisms that improve detection and not increasing sanctions [prison sentences]. If people think they have a 70% chance of committing a crime without getting caught, sentence length will do little to deter. Long sentences themselves can be harmful to public safety because they undermine public confidence in criminal laws. People see disproportionate sentences and lose faith that the government is operating fairly and equitably. That, in turn, leads to reduced compliance with the laws themselves.” 


Additional source: House Judiciary Hearing, June 17, 2021

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