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Holder's mandate makes Tampa Bay prosecutors rethink drug cases

Published Aug. 13, 2013

In any given week, the U.S. Justice Department's drug war captures fish of all sizes.

Some are mere users, caught up in wide nets. Others are mid-level dealers. And then there are the sharks.

On Monday, America's No. 1 prosecutor, U.S. Attorney General Eric Holder, sent a mandate.

Don't eat the guppies.

Holder wants federal prosecutors across the country to avoid charging low-level drug offenders with crimes that trigger what he called "draconian" minimum mandatory prison sentences.

Prosecutors for the Middle District of Florida plan to review pending cases and weigh future ones against an edict clearly intended to reduce costs by thinning future prison populations.

The head of the district, Acting U.S. Attorney A. Lee Bentley III, said his office is studying guidance offered by the Justice Department on how to proceed.

"I do think it's possible," he said, "that defendants who have already been charged but not yet been sentenced may, in some cases, have an opportunity to plead to a lesser charge that does not involve a minimum mandatory sentence."

He said the office doesn't typically bring charges against offenders found with small amounts of drugs — in part because resources are already taxed. The Middle District is the second largest in the nation in terms of population, but No. 16 in terms of attorneys.

"We have really tried not to charge smaller drug cases unless the individual involved is a recidivist who poses a danger to the community through violent behavior or significant drug trafficking," he said.

About 20 percent of the Middle District's cases are drug cases, he said, but many involve tons of cocaine seized on the high seas, or have links to large trafficking organizations.

Still, defense lawyers say they do sometimes see drug users and small-time dealers caught up in larger prosecutions.

"I've had families come into my office when their son or their boyfriend or grandchild was selling a small quantity of drugs, two rocks of crack cocaine, or 1 or 2 grams of powder cocaine," said Tampa lawyer Grady Irvin Jr.

"One of the most difficult things that I have to explain is that, as unfair as it may seem, they will go after the little fish in order to get to the bigger one."

Irvin also winds up explaining minimum mandatory sentences. "Not only are my hands tied," he sometimes says, "but many times the judges' hands are also tied. "

Defense lawyer Jeff Brown said he also sees federal defendants getting minimum sentences of five and 10 years for relatively low amounts of cocaine, such as 5 and 10 grams.

He's waiting to see how Holder's new approach plays out.

"I welcome the dialogue," said Brown, who also is an adjunct professor at the Stetson University College of Law, "but I'm enough of a critic and a skeptic to say, 'Let's see exactly what qualifies as low level.' "

Federal judges operate in a realm of sometimes conflicting marching orders. Sentences are supposed to be sufficient but not greater than necessary.

The U.S. Supreme Court has ruled that they don't have to adhere to sentencing guidelines, the mathematical formulas derived by considering a person's criminal conduct, past conduct and other factors.

But they can't ignore special penalties imposed by Congress. For instance, a child pornography distribution conviction carries a minimum five-year term. An aggravated identity theft charge requires a two-year term on top of any other sentence.

This morning, in Tampa's federal courthouse, crack cocaine dealer Ervin Lee Moye, 27, has a date with a federal judge who can't help but give him not one but two minimum mandatory sentences, totaling at least 10 years in prison.

Moye, the high school dropout son of a Polk County Head Start teacher, admitted in a plea deal to distributing the cocaine, which requires at least a five-year sentence. He also admitted to possession of a firearm while drug trafficking, which carries its own five-year term that must be served consecutively to the first.

Although Holder's remarks dealt specifically with the federal court system, Florida's state courts have in many ways been transformed by similar measures.

For example, the 10-20-life law calls for a minimum 10-year prison sentence for crimes committed with a gun, a minimum 20-year sentence for crimes in which a gun is fired, and 25 years to life sentences if the gun causes death or injury.

Florida also has mandatory sentences for nonviolent crimes.

Anyone who possesses more than 28 grams of oxycodone — about an ounce — faces at least 25 years in state prison. Someone with that quantity of the drug could be considered a drug trafficker, even though it could fit into a single pill bottle.

Pinellas-Pasco State Attorney Bernie McCabe said his office spends a lot of time trying to decide whether drug defendants are, as he put it, addicts or sellers.

He said he thinks it would make sense to increase the level at which certain drugs trigger minimum mandatory sentences, especially when it comes to prescription pills.

"From what I see they're just a little on the low side right now if were talking about drug trafficking," he said. If those amounts were increased, "we would be more likely to get people who are trafficking."

News researcher John Martin contributed to this report. Staff writer Patty Ryan can be reached at pryan@tampabay.com or (813) 226-3382.