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A federal judge on Thursday slammed the Miami U.S. Attorney’s handling of a small-time drug dealer’s case as “an abomination” of federal sentencing guidelines and refused to sign off on a deal he contends is too lenient. Both the prosecution and the defense agree that justice would best be served by allowing David Himick, 20, to withdraw his guilty plea to felony distribution of a small amount of the drug Ecstasy. They want him to be able to plead guilty to a misdemeanor possession charge, which would bring with it a lesser sentence. But U.S. District Judge K. Michael Moore refuses to go along. He first voiced his opposition to the deal at a hearing in February when he accused prosecutors of trying to “game the system” in order to secure a lighter sentence for the three-time felon. He also excoriated U.S. Attorney Marcos D. Jimenez for taking a “weak-kneed” approach with a “career criminal” who has a “rap sheet the length of my arm.” On Thursday, as Jimenez and top staffers watched sullenly from the gallery, Moore remained frustrated and outspoken. “Isn’t it readily apparent what’s going on here?” asked the judge, staring directly at Jimenez, who Moore contends is responsible for a sharp decline in criminal cases prosecuted in South Florida’s federal courts. Outside the courtroom, a composed but obviously annoyed Jimenez was asked to comment. “We’re not a factory — put that in,” he said. Previously, Jimenez and his spokesmen have denied that there’s been any significant decline in cases under his leadership. But they also have refused to produce statistical information about caseloads. Case statistics might help to support or refute Judge Moore’s earlier musings from the bench that questioned Jimenez’s compliance with a hard line directive last year from U.S. Attorney General John Ashcroft. The nation’s top law enforcement officer has ordered prosecutors to seek not only the toughest possible sentences, but “to charge and pursue the most serious, readily provable offenses that are supported by the facts.” Those new rules followed the enactment of legislation, strongly supported by Ashcroft, limiting the discretion of federal judges to tailor sentences to individual cases and to monitor the sentencing patterns of judges. At the February hearing, Moore had questioned whether the deal offered to Himick — which would have cut his sentence from 12 to 15 years to a year or two — was appropriately approved. He told Assistant U.S. Attorney Jonathan E. Lopez and his supervisor, Matthew Menchel major crimes section chief, that before he would approve it, he wanted reassurances that higher-ups in Washington agreed with the U.S. Attorney’s position. After noting dryly that Jimenez had helped write Ashcroft’s get-tough policy, Menchel told Moore on Thursday that Jimenez has the “full backing and support” of the Justice Department in the Himick matter, and that the department had specifically declined to second guess him by examining the details of the case. Menchel also explained that Himick’s case clearly fell within certain exceptions allowed in Ashcroft’s directive. The explanation seemed to satisfy Moore, but the judge still didn’t rule on Himick’s motion to withdraw the felony plea. Rather, Moore went on to inquire about a recent development that could prevent him from sending Himick off to prison for at least a decade, as he has indicated he would like to do. On March 19, while the federal sentencing was delayed, Miami defense attorney David Raben convinced Miami-Dade Circuit Judge Diane Ward to vacate two of Himick’s three state felony convictions relating to drug sales involving $100 or less. The result is that Himick can no longer be considered a career criminal under federal law and any sentence he might receive would be much shorter. Raben is a partner at Robbins Tunkey Ross Amsel Raben Waxman & Eiglarsh of Miami. Judge Ward acted after Assistant State Attorney Timothy Brisibe informed the court that two of Himick’s former defense attorneys, Assistant Public Defender William J. Surowiec and solo practitioner Alex J. Michaels, had come forward to acknowledge serious deficiencies in the defense of Himick’s earlier cases. Judge Moore characterized those deficiencies on Thursday as “ineffective assistance of counsel.” Himick still faces a new trial on the state drug charges, which could take months to resolve. But at Thursday’s hearing, Moore seemed perplexed by the maneuver and observed that it had “undercut” his classification under federal sentencing guidelines. “That’s all it took to get state court convictions vacated,” he said. “Somebody came in and told an assistant state attorney, ‘I was ineffective,’ and the prosecutor says he agrees and the judge says, ‘OK. Vacate … There was no hearing or testimony and no adversary proceeding … No consequences for lawyers.’” Assistant U.S. Attorney Menchel was quick to distance the U.S. Attorney’s Office from the maneuver. “We had nothing to do with that,” he told Moore. But David Alschuler, who represents Himick in the federal drug case, defended the state court’s decision to toss those earlier convictions. “It’s our position that ineffective assistance of counsel is tantamount to having no counsel at all,” he said. Moore scheduled a June 14 sentencing hearing for Himick. If the state charges aren’t resolved, Moore said, he will consider making what’s known as an “upward departure” under the sentencing guidelines to mete out what he considers to be an appropriate prison term for Himick. Outside the courtroom, Himick’s mother was distraught. She accused Judge Moore of playing games with her son’s life. She asked not to be identified by name because of her job at a local television station. “He’s the one who is using my son’s case to vent his own outrage toward the government,” she said. “He’s prosecuting my son.”

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