Is Charlie Lynch Eligible for the 'Safety Valve'?

Jacob Sullum | April 24, 2009

As Nick Gillespie noted yesterday, the sentencing of Charlie Lynch, former operator of a medical marijuana dispensary in Morro Bay, California, has been postponed until June 11. Given the amount of marijuana involved, Lynch faces a mandatory minimum sentence of five years. This penalty is required by statute, not merely by federal sentencing guidelines, which the Supreme Court has said are only advisory. But as I noted in a column last month, Lynch is arguably eligible for the same "safety valve" provision that benefited Oakland medical marijuana grower Ed Rosenthal, who potentially faced five years in prison but was ultimately sentenced to just a day. Notably, the U.S. Court of Appeals for the 9th Circuit implicitly endorsed this dramatic downward departure in a footnote to a 2006 decision (PDF) dealing with other issues. "In the wake of the Supreme Court's holding that we apply a 'reasonableness' review to sentencing decisions," the 9th Circuit said, "we would not be inclined to disturb the court's reasoned analysis underlying its sentencing determination."

These are the requirements for the safety valve, which Congress created in 1994:

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

The only condition that might be problematic for Lynch is No. 4, since he employed people at the dispensary. But whether that makes him "a supervisor of others in the offense" is for U.S. District Judge George Wu to determine. At Lynch's sentencing hearing yesterday, Wu expressed sympathy for the defendant, saying, "If I could find a way out, I would." This looks like a way out.

The latest Reason.tv update on the Lynch case is here.

Comments

SpongePaul|4.24.09 @ 4:26PM|#

Thanks for the info Jacob. Hopefully the judge will follow a precedent already set and send him up for 1 day only. ( I swear one day someone is gonna hae to sit me down and explain how growing a plant in cali, and selling/smoking it in same state involves the feds, yeah i know some BS about interstate trade, but thats Bullshit, they should have to prove it crossed staqte lines before they stick thier oversized asses and undersized cocks into the fray.

|4.24.09 @ 4:51PM|#

The judge seems to be trying to do the right thing. How long is this madness going to continue? Why are Americans going to prison for helping sick and dying Americans, why do we allow this crap?

H.F. Wolff|4.24.09 @ 4:52PM|#

I seem to recall from my elective legal classes that in order to be convicted of a crime the prosecution must prove a "guilty mind" in the accused.

Has this requirement also been tossed out?

H.F. Wolff

|4.24.09 @ 4:58PM|#

The key lesson here is that if you're gonna start up a medical marijuana dispensary, hire someone to run it for you.

SpongePaul|4.24.09 @ 5:02PM|#

Has this requirement also been tossed out?



I would say for the most part yet. and i thought that the criminal mindset only applied in capital cases, because you can be convicted of negligence in many areas, and that does not have a criminal mindset. but i not a lawyer be

ktc2|4.24.09 @ 5:13PM|#

H.F. Wolff,

Yes, mens rea is dead in this country.

AB390|4.24.09 @ 5:20PM|#

Prosecuting Charlie Lynch is a waste of law enforcement and judicial resources. Marijuana prohibition has failed and should be repealed.

If you live in California, YOU can make a difference. Tell your state representatives to support California Assembly Bill 390. It's easy. Just go to yes390.org

|4.24.09 @ 5:43PM|#

Too bad the jury simply wouldn't refuse to convict, and too bad (for us all) that the judge kept relevant information from being presented to that jury. Even if the information could not, legally speaking, be counted as "a defense" in federal court, it certainly could go to state of mind, which might make the jury think twice about criminal intent.

I'd like to think that reasonable doubt about criminal intent could have freed Lynch, or at least ensured conviction on lesser charges. Why doesn't our law guarantee that defense attorneys can present ANY theory or evidence that is applicable to assessing the requirements for conviction? Wasn't the idea that the Constitution put the burden of proof on the State precisely so that the State wouldn't be able to bully the defendant (or at least bully him so much)?

When the judge can prevent relevant evidence or lines of reasoning from being examined in court, that is the power to define the debate, which strikes me as an additional, unnecessary advantage that our Founders couldn't have wanted the government to have.

The Angry Optimist|4.24.09 @ 5:45PM|#

I seem to recall from my elective legal classes that in order to be convicted of a crime the prosecution must prove a "guilty mind" in the accused.

"Strict liability" crimes do not require a mens rea. There is still an element of it, in that the defendant must still knowingly have been doing the thing.

For example, statutory rape laws are strict liability. If you have sex with someone under the legal age and you're over the legal age, you're guilty of rape. Period, end of statement...it doesn't matter if you checked her ID, birth certificate or her parents told you she was 16/18 (depending on the state).

BUT, you still have to have knowingly had sex. You cannot be convicted of statutory rape if you were say, molested by a 15-year-old in your sleep. Extreme intoxication, believe it or don't, has been a successful defense in this regard.

BakedPenguin|4.24.09 @ 5:46PM|#

AB390 is the kind of spammer I can get behind. For once, I wished I lived in CA.

Also, good luck Charlie Lynch. Time served is more than enough punishment for the "crime" you committed.

The Angry Optimist|4.24.09 @ 5:52PM|#

Let's mobilize the left to push Obama for a Presidential Pardon.

Mad Max|4.24.09 @ 7:12PM|#

TAO,

You might have to wait awhile.

wayne|4.24.09 @ 9:19PM|#

I do live in CA, and I followed AB390's link and sent off a vicious form letter to my representatives.

They will delete my email without reading it, of course; hey, they're busy, they have favors to sell.

|4.24.09 @ 11:02PM|#

The judge seems to be trying to do the right thing.

I disagree. The judge seems to be trying to save his own reputation, having drastically underestimated how much support Charlie Lynch would have.

Judge Wu didn't let Lynch defend himself. The trial was a farce, and Wu should be disbarred.

-jcr

Jeffrey Balla|4.25.09 @ 4:09AM|#

But doesn't #4 say "AND was not engaged in a continuing criminal enterprise"?

Since he hasn't done both, I'd say that "AND" means Charlie is still eligible for the 'safety valve'.

|4.25.09 @ 7:30AM|#

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|4.25.09 @ 8:03AM|#

Prosecuting Charlie Lynch is a waste of law enforcement and judicial resources

Not to mention a hideous abuse of power against an innocent man.

-jcr

Abner MacGillicuddy|4.25.09 @ 12:56PM|#

"You cannot be convicted of statutory rape if you were say, molested by a 15-year-old in your sleep."

Shit, I hate it when that happens.

What?????? You mean none of you have ever been molested by a 15-year-old in your sleep?

|4.25.09 @ 1:08PM|#

( I swear one day someone is gonna hae to sit me down and explain how growing a plant in cali, and selling/smoking it in same state involves the feds, yeah i know some BS about interstate trade, but thats Bullshit, they should have to prove it crossed staqte lines before they stick thier oversized asses and undersized cocks into the fray.

SpongePaul,

Look to Wickard v. Filburn, a 1942 Supreme Court decision, for the reasoning behind why this purely intrastate activity can be regulated under the Commerce Clause. Essentially, the marijuana grown in CA, even if only for personal use, would compete with marijuana that is involved in interstate commerce.

|4.25.09 @ 7:59PM|#

Marty,

Would this not be a GOOD thing, from the perspective of the feds? I mean, hey: competition = less stuff grown for interstate use (in theory), less involvement in organized crime, more taxed money used to pay down California's ungodly budget deficit(s), etc.

Not that logic need be involved, but I'm not really seeing a downside to legal growth, at least for California and the federal government.

|4.27.09 @ 3:53AM|#

It would be nice to see an end to the Lynch Charlie campaign conducted by the Gestapo (DEA) and their persecutors.

|4.27.09 @ 11:45AM|#

Essentially, the marijuana grown in CA, even if only for personal use, would compete with marijuana that is involved in interstate commerce.

IOW, because some marijuana/wheat crosses state lines, all marijuana/wheat is subject to federal control.

Wickard probably did more damage than any other single SCOTUS decision to our Constitution, because it vested plenary power over all economic activity in the national government.

|4.27.09 @ 1:11PM|#

So, did the poobahs of the time truly appreciate the profound significance of the Wickard ruling when it was handed down? And if so, how did they celebrate?

I know how _I_ am going to celebrate if and when Wickard is ever reversed (or even if it is only substantially eviscerated).

|4.27.09 @ 3:32PM|#

So, did the poobahs of the time truly appreciate the profound significance of the Wickard ruling when it was handed down?

I suspect so. It was a test case for FDR's gigantic expansion of federal power.