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.