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With Attorney General John Ashcroft watching their sentencing patterns to make sure they’re tough enough, many federal judges around the country are unhappy and on edge. For small-fry drug defendant James David Himick of Miami, that’s bad news. U.S. District Judge K. Michael Moore, accusing Miami U.S. Attorney Marcos Jimenez of not toeing the same hard line that judges must follow, is threatening to send Himick to prison for 12 to 15 years — not the year or two prosecutors think Himick deserves. Himick, 20, wants to withdraw his guilty plea to felony distribution of the mind-altering drug Ecstasy so he could instead plead guilty to a misdemeanor possession charge and get a lesser sentence. Jimenez’s office was willing to go along on the grounds that Himick would have received an excessive sentence as a career criminal. But Judge Moore has thrown up a roadblock — and taken a swipe at Jimenez’s two-year record as U.S. attorney. The judge has set a hearing in the case for next month. At a Feb. 19 hearing in Miami, Moore accused Jimenez’s office of trying to “game the system” to obtain a lighter sentence for an undeserving defendant. According to a transcript, Moore called Jimenez’s office “weak-kneed” and lacking in “prosecutorial zeal” for allowing such a deal for a “career criminal” with a “rap sheet the length of my arm.” But the judge went even further. He said there’s been a sharp decline in the number of cases prosecuted by the U.S. Attorney’s Office in Miami under Jimenez’s leadership. And in the Himick case, specifically, he accused prosecutors of “circumventing” both the will of Congress and of Ashcroft. Last year, Congress passed the so-called Feeney Amendment, sponsored by Rep. Tom Feeney (R-Fla.), to further limit the discretion of federal judges to tailor sentences and to monitor sentencing patterns. In September, asserting a need to ensure that offenders are treated consistently, Ashcroft followed up the controversial law with a memo requiring prosecutors “to charge and pursue the most serious, readily provable offenses that are supported by the facts.” The memo likewise instructs prosecutors to seek the toughest sentences possible. “I feel uncomfortable being a party to this contortion of the sentencing guidelines,” Judge Moore said at the February hearing. “It completely seems to me [that it] undermines what the Congress intended with the sentencing guidelines.” At the same time, Moore criticized the new Feeney-imposed regimen that many judges have called wrongheaded. “Maybe this is a bad outcome, if we just play by the rules,” Moore said. “But maybe it is playing by the rules that will eventually illustrate the wrongs within the system that will enable Congress to adjust the system to put discretion back in the hands of judges.” For his part, Jimenez defends the actions of his office. “In the last two fiscal years we have charged the same number of defendants,” he said, in an e-mailed statement. “We are not going to abdicate our responsibility to the community in pursuit of statistics. This is not a factory, and I am not concerned with bottom line numbers. We do what is right in every case, regardless of the opinion of others. Sometimes in striving to do what is right, judges, defense attorneys, and the public may disagree with us, but this office remains undeterred.” Himick was indicted last August on two counts of distributing a total of 25 Ecstasy pills, also known as MDMA, to undercover officers at a nightclub near downtown Miami. The alleged sale price was $490. At least 15 co-defendants also were charged. On Dec. 1, Himick signed a plea agreement to one count of distribution involving 20 pills — or, as the agreement defines it, 7.20 grams of Ecstasy. Among other things, the agreement states, “the defendant also understands” he faces a maximum of 30 years in prison, but that the government would recommend a sentence at the low end of the guideline range. Judge Moore accepted the plea the same day. But Himick soon learned something from his probation officer that gave him cold feet: His three prior state court felony drug convictions made him eligible to be sentenced as a career criminal. Two of those convictions were for selling $5 and $10 bags of marijuana. His third conviction was for selling $40 of marijuana and $100 of Ecstasy pills to an informant. Thus, Himick learned that he was not facing 10 to 16 months in prison, as anticipated by his defense attorney, David Alschuler of Miami, and by Assistant U.S. Attorney Jonathan Lopez and his supervisor, Major Crimes Section chief Matthew Menchel. Instead, Himick, who had never done more than 45 days in county lockup, was looking at a range of 151 to 188 months. “I mistakenly overlooked the fact that James may have qualified as a career offender based upon his prior sales of small quantities of drugs,” Alschuler told the judge, according to the transcript. He wasn’t alone in overlooking it. Lopez, too, said in court that such a sentencing enhancement was “something that the government did not expect.” The two sides soon cut a new deal for Himick to plead to the less serious charge of drug possession rather than distribution. Both sides then asked Moore to bless the deal. Alschuler pointed out that Himick’s rap sheet “over-represents” the seriousness of his offenses. Lopez told the judge that while it was a “very unusual” posture for the government, it was the just thing to do. Moore, a former head of the U.S. Marshals Service who joined the court in 1992 after his appointment to bench by the elder George Bush, wasn’t sympathetic. He asked, “How does this square” with the Ashcroft memo? When Lopez replied that Himick’s case was “atypical,” Moore bristled. “He was actively selling a drug that we know can result in death,” Moore said. “So he is a career offender. What is so atypical that we should now treat him with kid gloves and charge him with an offense that is less than the offense that he was convicted of?” Menchel stepped in to explain that Himick’s case was atypical because “normally” the U.S. Attorney’s Office doesn’t take such small cases. He said a decision to federalize the case was made in consultation with state prosecutors in hopes of nailing the nightclub’s owner, but that never happened. Most of the others charged with felony distribution in the nightclub case were offered misdemeanors to plead guilty, but Himick wasn’t offered the same deal because of his criminal record, Menchel said. Moore replied, “I don’t understand why you are offering people misdemeanors for simple possession when they are dealing.” “Well, I guess because we felt, looking at the guidelines and looking at the nature of this case, that the amount of sentences they were facing weren’t appropriate,” Menchel said in response. The Ashcroft memo, which Judge Moore called “the latest version of the war on drugs,” forbids such “picking and choosing,” the judge said. “It looks to me like this is a weak-kneed decision. I mean, where is the prosecutorial zeal?” In defense, Menchel cited an exception in the Ashcroft memo that allows prosecutors to plead out cases to avoid lengthy trials that might overburden an office. But Moore scoffed at that notion, and ridiculed Marcos Jimenez’s stewardship of the U.S. Attorney’s Office. “It doesn’t look like there is a whole lot of trial work going on compared to past periods,” Moore said. “The last monthly report [of cases] I saw was down 30 percent. I mean, people must be bumping into each other in the halls downstairs with the number of cases that are being filed.” Menchel replied that prosecutions are “down nationwide” because of the post-Sept. 11 reallocation of resources by some agencies, notably the Federal Bureau of Investigation. “You would be doing the community some good if you did prosecute more of these cases,” Judge Moore said. After carefully reviewing Himick’s case, Moore said, he concluded Himick had been coddled by a state “criminal justice system that allowed his criminal behavior to go unchecked time after time. If somebody had gotten to him early on in the state court system, he might not be here today. But, you know, that’s the state court system.” The “worst” thing a judge could do with Himick would be to let him withdraw his plea, give him a “slap on the wrist,” and let him think the federal courts “are no better than the state court system that has treated him this way,” Moore said. The judge said at the hearing he has used the Ashcroft memo before to scold prosecutors about charging decisions. He told Menchel that before approving the Himick plea, he wanted reassurance that higher-ups at the Department of Justice agreed with the U.S. attorney’s position in the case. “I would really like to know if Attorney General Ashcroft, if he means what he says in that memo, means that we should do what you are asking me to do,” Moore said. Moore set a hearing on April 15 for the U.S. Attorney’s Office to obtain those assurances from Washington. If they aren’t forthcoming, Moore indicated he would sentence Himick as a career offender, with a potentially much longer term. “Make sure you point out to [the Justice Department] his criminal history,” the judge told Menchel. “He is a career criminal. . . . And I don’t know if I want it on my conscience to know who the next victim is.” Dan Christensen is a staff writer at the Daily Business Review, an American Lawyer Media newspaper in Miami where this article first appeared.

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