122540.00601/30290297v.1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

UNITED STATES OF AMERICA 

 v. 

STEVEN EVANS

Criminal Nos. 04-584, 04-586 

DEFENDANT’S SENTENCING MEMORANDUM

I. INTRODUCTION

As of result of the Supreme Court’s ruling in United States v. Booker, 125 S.Ct. 738 

(2005), this Court has enhanced sentencing discretion. That Booker sent virtually unprecedented 

shock waves throughout the federal judiciary requires no citation. Suffice it to say that after 

rendering its decision that made the Guidelines advisory, this Court must impose a reasonable

sentence in keeping with the factors set forth in 18 U.S.C. § 3553(a) (“The Sentencing Reform 

Act”). Id. at 764-65. Thus, under the new sentencing scheme, this Court must consider the 

applicable Guidelines sentencing range when arriving at a defendant’s sentence, 18 U.S.C. § 

3553(a)(4), but only as one factor of several laid out in § 3553(a). Id. at 764. (“Without the 

‘mandatory’ provision, the Act nonetheless requires judges to take account of the Guidelines 

together with other sentencing goals.”). 

Section 3553(a) directs Court to “impose a sentence sufficient, but not greater than 

necessary, to comply with...the need for the sentence imposed (A) to reflect the seriousness of 

the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to 

afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of 

the defendant; and (D) to provide the defendant with needed educational or vocational training, 

medical care, or other correctional treatment in the most effective manner.” (Emphasis added). 

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To aid in this analysis, §3553(a) requires sentencing courts to consider “the nature and 

circumstances of the offense and the history and characteristics of the defendant,” “the kinds of 

sentences available,” the Sentencing Guidelines, “the need to avoid unwarranted sentence 

disparities among defendants with similar records who have been found guilty of similar 

conduct,” and “the need to provide restitution to any victims of the offense. 18 U.S.C. 

§3553(a)(1)-(7). 

Upon an application of the SRA to the facts and circumstances of this case, we 

respectfully submit that the Court make a finding that the advisory Guideline range is 

unwarranted. 

II. THE MANDATORY MINIMUM

The mandatory minimum for crack cocaine should not apply in this case. The 

mandatory minimum sentence set forth in 21 U.S.C. § 841(b)(1) should not apply in this case 

because the evidence at trial identified the controlled substance as “cocaine base;” not crack 

cocaine. See Exh. “1” (Trial Testimony of chemist Maria Shegu). See, United States v. 

Edwards, 397 F. 3d 570 (7th Cir.), reh. en banc den. (2005). Thus, the Court is free to sentence 

the defendant outside of the mandatory minimum for crack because both the government’s proof 

failed to show that the controlled substance was “crack,” and the jury did not unanimously agree 

that the controlled substance was indeed crack cocaine. The defendant recognizes that the Third 

Circuit in the United States v. Barbosa, 271 F.3d 438, 467 (3d Cir. 2001) held that the mandatory 

minimum set forth in 21 U.S.C. § 841(b)(1) applies to offenses involving any form of cocaine 

base, but because there is a split in the Circuits on this issue, defendant seeks to preserve the 

issue for appeal and possible resolution by the Supreme Court. 

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III. DOUBLE JEOPARDY

The defendant’s convictions on Count III (distribution of MDMA on February 25, 2004) 

and Count IV (distribution of MDMA within 1000 feet of a school on February 25, 2004) 

constitutes multiple punishment for the same offense in violation of the Double Jeopardy Clause 

because Section 841(a)(1) is a lesser included offense of Section 860(a). United States v. Perry, 

389 F.Supp. 278, 284-85 (D.R.I. 2005). Thus, any punishment imposed for the February 25, 

2004 distribution of MDMA and distribution in Counts III and IV constitutes multiple 

punishment for the same offense, and his conviction on Count III of Indictment No. 04-586 

should be vacated. 

IV. THE GUIDELINES CALCULATIONS

A. THE QUANTITY OF MDMA SHOULD BE CALCULATED BASED ON 

PURE WEIGHT OF MDMA. 

Evans plead guilty to three counts of the indictment, charging distribution of MDMA in 

violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). Based on the plain language of the statute 

and applicable rules of statutory construction, this Court must sentence Evans according to the 

“pure” weight of MDMA; not based upon the gross weight of the mixture or substance 

containing MDMA. 

Section 841(a) prohibits, inter alia, the distribution of, or possession with intent to 

distribute, a controlled substance. 21 U.S.C. § 841(a)(1). With respect to the distribution or 

possession with intent to distribute MDMA, a person convicted of violating Section 841(a)(1) 

“shall be sentenced to a term of imprisonment of not more than 20 years...” 21 U.S.C. § 

841(b)(1)(C)(“In the case of a controlled substance in Schedule I or II...such person shall be 

sentenced to a term of imprisonment of not more than 20 years”). Section 841(b)(1)(C) is silent 

with respect to whether, for the purposes of sentencing, the quantity of MDMA should reflect 

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either the pure weight or the gross weight of the substance. By contrast, however, Section 

841(b)(1)(A) specifically sets forth that a violation of Section 841(a) requires sentencing for the 

gross weight of the controlled substance because the statute specifically states: 

...any person who violates [Section 841(a)] shall be sentenced as 

follows: 

(1)(A) in the case of a violation of [Section 841(a)] 

involving: 

(i) 1 kilogram or more of a mixture or substance 

containing a detectable amount of heroin... 

(ii) 5 kilograms or more of a mixture or substance

containing a detectable amount of (i) coca 

leaves... 

(ii) cocaine... 

such person shall be sentenced to a term of imprisonment which 

may not be less than 10 years or more than life.... 

21 U.S.C. § 841(b)(1)(A)(i) (emphasis added). 

It is well-settled that where Congress “includes particular language in one section 

of a statute but omits it in another section of the same act, it is generally presumed that 

Congress acts intentionally and purposely in the disparate inclusion or exclusion.” INS v. 

Cardoza-Fonseca, 480 U.S. 421, 447-48 (1987); see Ki Se Lee v. Ashcroft, 368 F.3d 218, 

223 (3d Cir. 2004) (finding same). Moreover, the rule of lenity requires that “where a 

statute is punitive in nature, the rule...requires that any ambiguity in the statute be 

resolved in favor of the [defendant].” United States v. $734,578.82 in U.S. Currency, 

286 F.3d 641, 657 (3d Cir. 2002). In Section 841, Congress specifically set forth that for 

certain substances (i.e. heroin, cocaine, phencyclidine, lysergic acid diethlyamide, etc.) 

sentencing shall be governed according to a “mixture or substance containing a detectable 

amount” of that particular substance. See 21 U.S.C. § 841(b)(1)(A). By contrast, for 

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sentencing related to MDMA, the statute is silent with respect to whether sentencing 

should be governed according to a “mixture or substance containing a detectable amount” 

of MDMA. See 21 U.S.C. § 841(b)(1)(C). Congress’ decision not to include the 

“mixture or substance containing” language for Section 841(b)(1)(C) read in conjunction 

with the rule of lenity strongly suggests that Congress intended a pure weight 

measurement for sentencing purposes. Cf., United States v. Penta, 173 F.Supp.2d 499, 

503 (E.D. Va. 2001) (rejecting a pure weight measure of MDMA for the purposes of 

sentencing based on an interpretation of the Sentencing Guidelines, and not, based on the 

statutory construction of § 841(b)(1)). 

Accordingly, this Court should sentence Evans according to the pure weight, 

rather than the gross weight, of MDMA. The pure weight of MDMA, based upon the lab 

reports, is 23.5 grams, which is, in turn, converted to 11.75 kilos under the conversion 

table. This yields a guideline level 16, plus one level enhancement for distribution near a 

school. See Exb. 2 (MDMA lab reports). 

B. GROUPING.

As set forth in the Presentence Report objection letter, the defendant submits that the 

“grouping” of the drug offenses pursuant to Section 3D1.2(d) of the Guidelines is incorrect. The 

Guidelines do not contemplate grouping drug offenses that were charged in separate indictments, 

which involve different drugs, and occurred at different times, particularly where, as here, both 

the defendant and the Court contemplated that the defendant would be able to argue for 

concurrent sentences based on the separate indictments pursuant to the Court’s inherent 

discretion under Section 18 U.S.C. § 3584. These cases were consolidated only after defendant 

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was convicted in the cocaine case after a jury trial, and at the plea the defendant reserved the 

right to argue for concurrent sentences. 

In short, the guideline for the cocaine case should be based at most on 16.98 grams or, 

converted, 339.6 kilos of marijuana, yielding a Guideline range of Level 26 (70 to 87 months). 

The Section 924(c) count requires a 60-month consecutive sentence, for a total Guideline range 

of 130 to 147 months. 

The MDMA case should be based on 23.5 grams of pure MDMA which, converted, 

equals 11.75 kilos of marijuana, yielding a Level 17 (because the defendant pled guilty an 

acceptance of responsibility, adjustment should be added) yielding a Guidelines range of 

Level 14 with a corresponding range 18 to 24 months imprisonment. 

While the Guidelines are far from clear,1

 grouping offenses here, which are not factually 

related and were charged in separate indictments, is not specifically provided for in the grouping 

rules. Section 3D1.2, involves grouping “all counts involving substantially the same harm”. 

(emphasis added). Here, but for the fortuity of defendant’s agreement to consolidate the MDMA 

indictment for plea and sentencing before this Court, there would be no reason to group the 

unrelated drug offenses. The only question would be whether a concurrent or consecutive 

sentence should apply under Section 5G1.2, which allows for concurrent sentencing on multiple 

counts of conviction in different indictments (see App. Note 1). U.S.S.G. § 5G1.2(d) (“in all 

other respects, sentences on all counts shall run concurrently, except to the extent otherwise 

required by law”). 

 

1

 There is some authority allowing for the grouping of related offenses that are charged in 

separate indictments, but were specifically consolidated for sentencing. See, United States v. 

Griggs, 47 F.3d 827, 232 (6th Cir. 1995). 

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In sum, grouping of the different crimes charged in separate indictments is not just, 

where, as here, the defendant only sought to simplify the sentencing process by consolidating the 

cases and preserved all his rights, as there was no plea agreement. All the Court need consider 

are the factors set forth in Section 3584(B). These are the same sentencing factors set forth in 

Section 3553(a), which the Court considers to achieve just punishment. Simply put, there is 

nothing the record in either case which cries out for consecutive sentences, especially since this 

Court will be required to impose a mandatory minimum sentence. 

V. THE GUIDELINES DEPARTURES

A. THE GUIDELINES FOR CRACK COCAINE SHOULD NOT BE 

APPLIED UNDER 18 U.S.C. § 3553. 

The Court should depart below the crack cocaine guidelines because the 100 to 1 quantity 

ratio of cocaine powder to cocaine base under the guidelines, according to the Sentencing 

Commission, leads to substantial unwarranted disparity in sentencing that has increased the gap 

in average sentences between racial groups. Hence, application of the crack cocaine guideline 

range to the facts of this case is not warranted. 

The Sentencing Commission has reported that “the harms associated with crack cocaine 

do not justify its substantially harsher treatment compared to powder cocaine”. The United 

States Sentencing Commission, 15 years of Guidelines Sentencing, pp xv-xvi (Nov. 2004).2

 

These findings support sentencing a defendant convicted of crack cocaine possession under the 

lower guidelines for cocaine powder. Numerous district courts have utilized the Commission’s 

own sentencing disparity findings in cases involving crack cocaine to conclude that a sentence 

below the crack cocaine guidelines is warranted. United States v. Perry, 2005 WL 2260196 

 

2

 The 15 year report is available on the sentencing commission’s website at 

http://www.ussc.gov/15-year/15year.htm. 

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(D.R.I. 2005); see also United States v. Clay, 2005 WL 1076243*3 - *6 (E.D. Tenn. 2005) 

(Greer, J.) (reviewing history of guidelines treatment of crack cocaine and US Sentencing 

Commission reports critical of 100-1 ratio, and concluding that ratio leads to “unjustified 

disparity” warranting reduced sentence); United States v. Williams, 372 F. Supp. 2d 1335, 1339 

n.8 (M.D. Fla. 2005) (Presnell, J.)(noting “substantial criticism of sentencing disparity between 

powder cocaine and crack cocaine”); United States v. John Smith, 2005 WL 549057, *6-*10 

(E.D. Wis. Mar.3, 2005)(Adelman, J.)(concluding after in-depth review of case law and 

commentary that 100 to 1 ratio lacks justification and creates unwarranted sentencing disparity); 

Simon v. United States, 2005 WL 711916, 2005 U.S. Dist LEXIS 4551 (E.D.N.Y. Mar. 17, 

2005)(Sifton, J.)(imposing sentence below guideline range for crack cocaine based primarily on 

disparity between crack and powder); United States v. Harris, 2005 U.S. Dist. LEXIS 3958 

(D.D.C. Mar. 7, 2005) (Robertson, J.)(Sentencing Commission’s findings regarding 

crack/powder disparity “are sound authority” for conclusion that guideline ranges for crack are 

“greater than necessary”). As Judge Smith recently put it, “[r]eview of the sentencing 

commission reports leaves little doubt that the guidelines’ penalties for crack lack any privileged 

justification that can withstand scrutiny under Section 3553.” 389 F. Supp at 302. 

Here, the evidence at trial shows typical street sales of cocaine dealing out of a vehicle. 

There was no evidence of violence or attempted violence in connection with the possession of 

cocaine or any of the alleged sales. Moreover, there was no evidence even of threats of violence 

in connection these street sales or the possession of the drugs so as to implicate the Sentencing 

Commission’s heightened concern about violence in connection with dealing crack in order to 

warrant the imposition of the higher “crack” guidelines. 

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Accordingly, the advisory guideline range under Section 2D1.1 of Level 26 based on 

16.98 grams of crack cocaine, yielding a guideline range of 70-87 months, plus a mandatory 

consecutive 60 months, is substantially greater than is necessary to reflect the seriousness of the 

offense, to promote respect for the law and to provide adequate general and specific deterrence. 

The conclusion that a non-guideline sentence is called for under these circumstances is supported 

by the majority of the district courts that have evaluated the crack/powder cocaine sentencing 

disparity in the wake of Booker/Fan Fan. United States v. Smith, 359 F. Supp. 2d at 777; United 

States v. Leroy, 373 F. Supp. 2d 887, 896 (E.D.Wis. 2005); United States v. Beamon, 373 F. 

Supp. 2d 878, 887 (E.D. Wis. 2005); United States v. Simon, 361 F. Supp. 2d at 49; United 

States v. Clay, 2005 WL 1076243 (E.D. Tenn. May 6, 2005). But see United States v. Pho, 433 

F.3d 53 (1st Cir. 2006); United States v. Euro, 2006 W.L. 440099 (4th Cir. 2006). 

B. THE GOVERNMENT’S SENTENCING FACTOR MANIPULATION IN 

THE MDMA CASE REQUIRES DOWNWARD DEPARTURE. 

Where the Government engages in improper conduct that has the effect of increasing a 

defendant’s sentence, the Court has the discretion to depart downward in sentencing. See United 

States v. Kaczmarski, 939 F.Supp. 1176, 1180 (E.D. Pa. 1996) (quoting United States v. Okey, 

47 F.3d 238 (7th Cir. 1995)); see also United States v. Padilla, 2003 WL 22016886 at *5 (E.D. 

Pa. 2003) (citing United States v. Drozdowksi, 313 F.3d 819, 825 n. 3 (3d Cir. 2002)). Although 

the Third Circuit Court of Appeals has not provided any specific guidance on this issue, the 

courts of the Third Circuit have favored the First Circuit’s approach in United States v. 

Egemonye, 62 F.3d 425 (1st Cir. 1995), which provides the sentencing court with authority to 

exclude tainted transactions from the computation of sentences where “government agents 

improperly [enlarge] the scope or scale of the crime.” 62 F.3d at 427; see also Kaczmarski ̧ 939 

F.Supp. at 1182 (adopting First Circuit’s approach to sentence factor manipulation). Sentencing 

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manipulation need not arise to the level of a constitutional violation in order to be a viable 

sentencing factor. See id. (citing Egemonye, 62 F.3d at 427). Indeed, Judge Dalzell found much 

to commend about the First Circuit’s approach to sentence factor manipulation: 

The first of these attractive features is fundamental fairness. The 

Government in sting operations has it within its power to set the 

scope of the criminality. Unless the defendant evinces an objective 

intent to alter that scope, it opens the door to injustice to grant the 

Government a blank check on a defendant’s sentencing fate...This 

concern for fundamental fairness is buttressed by a second reason 

in favor of [the First Circuit’s] approach. In the present Guidelines 

regime, sentences are directly driven by amounts of loss and 

quantity of drugs. Since we are unaware of any evidence of 

Congressional intent under the Sentencing Reform Act completely 

to transfer sentencing decisions to the Government, it simply will 

not do for sentencing judges effectually to cede the scope of loss or 

quantity to the authors of successful stings. Lastly the greatest 

advantage of [the First Circuit’s] approach is that it introduces a 

limiting principle....[otherwise] there would be no meaningful limit 

on the Government to manipulate a defendant’s greed and thus his 

sentence. 

Kaczmarski, 939 F.Supp. at 1182 (emphasis in original) (internal citations omitted). 

In Kaczmarski, the Court found that the Government did not engage in sentence 

factor manipulation because the Government “was conservative in [its] fraud plans, and 

that it was [defendant], and not the Government, who upped the ante.” In this case, 

unlike Kaczmarski, it was the Government, and not Evans, who upped the ante with 

respect to the sentencing factor in the MDMA case. Here, the Government engaged in 

improper conduct to increase Evans’ sentence exposure. Rather than arresting Evans 

after the first alleged sale of ten (10) MDMA pills on January 21, 2004, the Government 

pursued three additional purchases of MDMA pills. In each of the three subsequent 

alleged transactions on February 5, 2004 (74 MDMA pills), February 25, 2004 (200 

MDMA pills), and March 29, 2004 (180 MDMA pills), the Government, and not Evans, 

initiated calls to Evans requesting to purchase MDMA pills. See PSI at ¶¶19, 20 and 21. 

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The Government’s approach unnecessarily, and severely, increased Evans’ sentencing 

exposure. 

Here, the Government’s conduct flies in the face of the principles of fundamental 

fairness for at least three principled reasons: (1) the Government, and not Evans, engaged 

in behavior to enlarge the scope of Evans’ sentencing fate; (2) it would be unfair for this 

Court to cede the scope quantity to the authors--the Government--of the sting operation; 

and (3) it would place a meaningful limit on the Government’s conduct which 

necessarily took advantage of Evans to increase his sentencing exposure. Accordingly, 

the Court should depart below the advisory guidelines based on sentencing factor 

manipulation. 

C. THE TOTALITY OF THE CIRCUMSTANCES - § 5K2.0.

A district court may “impose a sentence outside the range established by the applicable 

guidelines, if the Court finds ‘that there exists an aggravating or mitigating circumstance of a 

kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in 

formulating the guidelines that should result in a sentence different from that described.’” 

U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)); see also United States v. Philiposian, 267 F.3d 

214, 219 (3d Cir. 2001). The Sentencing Guidelines provide a list of “encouraged factors” upon 

which departure may be based. Koon v. United States, 518 U.S. 81, 94, 116 S.Ct. 2035, 135 

L.Ed.2d 392 (1996); see U.S.S.G. § 5K2.0 (“identifying some of the factors that the Commission 

has not been able to take into account fully in formulating the guidelines”). 

There are a number of circumstances in this case which are not adequately taken into 

consideration by the Guidelines. First, we have demonstrated that the MDMA case was subject 

to sentencing factor manipulation as well as the Guidelines will be incorrectly enhanced if the 

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Court does not consider the “pure” weight of the MDMA. Second, the defendant’s physical 

condition and mental emotional health are mitigating factors. This is because the defendant is 

suffering from high blood pressure and a back injury from three car accidents. He has been 

evaluated previously as a “paranoid personality disorder” (PSI ¶ 52) and is taking psychotropic 

medications prescribed by physicians at the Federal Detention Center. The competency 

evaluation previously submitted to the Court by Dr. Kirk Heilbrun confirms that Mr. Evans’ son 

has been diagnosed with paranoid schizophrenia and there is a history of psychiatric illness in the 

family. Further, Dr. Heilbrun confirmed that individuals with Mr. Evans’ psychiatric profile are 

described as “experiencing significant personality problems and sometimes symptoms of thought 

disorder . . .”. 

Lastly, Mr. Evan’s life circumstances are another mitigating factor in that defendant did 

not finish high school (PSI ¶ 54), and his family circumstances were certainly not ideal.3

 All of 

these factors militate in favor of a non-guidelines sentence under Booker/Fanfan as the Court is 

required not only to take into account the seriousness of the offense, but also to consider the 

“history and characteristics” of the defendant to foster the need for the sentence to “provide the 

 

3

 Dr. Heilbrun also confirmed Mr. Evans’ unusual family circumstances in which he has had 

little or no contact with his father, a brother who suffered from drug addiction and who was shot 

by his father. 

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defendant with needed education or vocational training, medical care, or other correctional 

treatment in the most effective manner . . .” This cannot be accomplished by providing a harsh 

crack Guidelines sentence with this defendant. 

Respectfully submitted, 

/s/ Nicholas C. Harbist 

NICHOLAS C. HARBIST 

Electronic ID: nch3279 

JASON W. NORRIS 

Attorney ID: 93947 

BLANK ROME LLP 

18th and Cherry Streets, One Logan Square 

Philadelphia, Pennsylvania 19103-6998 

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CERTIFICATE OF SERVICE

I, Nicholas C. Harbist, Esquire, hereby certify that a true and correct copy of Defendant’s 

Sentencing Memorandum has been served by me on this date, via hand delivery, upon the 

following: 

Jeffery W. Whitt, Esquire 

Assistant United States Attorney 

U.S. Department of Justice 

United States Attorney 

Eastern District of Pennsylvania 

615 Chestnut Street, Suite 1250 

Philadelphia, PA 19106-4476 

Dated: April 14, 2006 /s/ Nicholas C. Harbist 

NICHOLAS C. HARBIST 

Electronic ID: nch3279 

JASON W. NORRIS 

Attorney ID: 93947 

BLANK ROME LLP 

18th and Cherry Streets, One Logan Square 

Philadelphia, Pennsylvania 19103-6998 

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