Judge rejects request to jail man, 84
Sentencing guidelines called inflexible in case of 'geriatric' gun seller
By JAMIE SATTERFIELD,
[email protected]
January 6, 2005
A veteran judge on Wednesday refused to imprison an 84-year-old man, defying federal sentencing guidelines, the Justice Department and an appellate court mandate.
Senior U.S. District Court Judge James H. Jarvis lashed out at a congressionally mandated
sentencing scheme that he said usurps authority and discretion from judges and is so inflexible that it would put Henry A. Bostic behind bars despite his failing health and lifelong history of abiding by the law.
"They say, 'I don't care if he's 84 and about dead,' " Jarvis said. "For 84 years, he's been a good citizen. That don't make any difference. They want him sent on (to prison). They want to make an example of this man. They insist on it. They spent a lot of money and a lot of time appealing this. I don't think it's right.
"I'm the one who's got to live with what I do to this man," Jarvis continued.
The Justice Department has been trying to put Bostic in prison for more than two years now. Jarvis has now twice refused.
Bostic's medical infirmities read like a laundry list of health woes: diabetes, hypertension, heart disease, cataracts, anemia, emphysema. He appeared so disoriented Wednesday that he initially tottered on his cane toward Assistant U.S. Attorney David Jennings instead of his defense attorney, John Gibson.
Bostic found himself in federal hot water when he was nabbed as part of a 2002 roundup of a group of men deemed illegal gun traffickers who routinely hawked firearms sans a business license and with no questions asked of buyers.
But another name soon surfaced for this band of arms-dealing suspects - "the geriatrics."
Nearly all of the 23 men arrested in the U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives roundup were gray-haired men, middle age to seniors. Bostic was the oldest.
Few had substantial criminal records. Some, like Bostic, had never been arrested.
In the view of federal prosecutors, though, age, poor health and clean living did not mask what these men were - criminals who put guns in the hands of all sorts of bad guys, guns they claimed had wound up in crimes all over the country.
Defense attorneys countered that most of the men were lifelong gun enthusiasts who had bought, bartered and sold guns for years with no idea that they were violating the law.
Attorney Craig Garrett's client, 70-year-old Olen Allman, swapped and sold guns at a flea market.
"My guy's sitting on the tailgate of his truck at the flea market, shooting the breeze with folks," Garrett said. "He did it more to get out of the house than anything."
So did 69-year-old Parke Goins, Assistant Federal Defender Kim Tollison said.
"My client actually sold to some police officers," Tollison said. "It's not illegal to sell some guns. My client was making 5 or 10 bucks a gun to supplement his Social Security. He'd go to the flea market and sit in a lawn chair. It just gave him a little companionship. He sure wasn't making any money doing it."
It is, in fact, legal to occasionally sell a gun you own. But Jennings has argued that this crew of men hardly qualified as casual sellers. Undercover ATF agents and informants bought gun after gun after gun as part of the 2002 sting. Dozens more were seized.
Bostic's case, Jennings has argued, was particularly troubling. The ATF actually sent Bostic a warning letter in 2001, telling him that his gun dealing was illegal. In an encounter captured on audiotape, Bostic scoffed at the letter and continued to hawk weapons, court records show.
Although attorneys like Tollison and Garrett argued their clients were hobbyists unintentionally breaking the law, all but one of the accused arms dealers confessed their crimes once caught and pleaded guilty.
Nine out of 23 of them drew prison terms ranging from five to 41 months.
The rest, including Bostic, Goins and Allman, were put on probation.
But Bostic, Goins and Allman did not qualify under federal sentencing guidelines for probation. The guidelines are all about mathematical formulas, and the numbers for the three elderly men added up to prison terms.
The guidelines were created under congressional mandate for the stated purpose of imposing consistent, fair punishment that rewarded defendants with lower penalty ranges for admitting guilt, tattling on other criminals and having clean records. The guidelines also ratcheted up penalty ranges for those who repeatedly committed crimes, hawked huge amounts of drugs or carried out crime while armed.
Judges like Jarvis have attacked the guidelines as too binding, tying their hands and their good sense. Defense attorneys have lambasted the guidelines for creating a crazy patchwork of scenarios where drug kingpins walk away with sentences slashed in half and a petty crack dealer with a gun earns decades behind bars.
The guidelines are under review by the U.S. Supreme Court in the wake of the now-infamous Blakely decision that says juries, not judges, should decide most sentencing factors. A decision on whether those guidelines will remain in effect could come any day.
But, for now, they remain in force in Jarvis' jurisdiction. Because the judge refused to follow them in the cases of Bostic and Goins, the Justice Department appealed. Jennings, who argued those appeals, has won twice now, with Bostic and Goins. A decision in Allman's case, initially handled by Judge Tom Varlan, is pending.
The 6th U.S. Circuit Court of Appeals instructed Jarvis to either follow the guidelines and put Bostic and Goins behind bars or determine their cases were "extraordinary" and the men's health beyond the care a federal prison could provide.
On Wednesday, Jennings argued that even Bostic's apparent need of a pacemaker is not enough to merit probation.
"His guideline range is what it is, but that's because of (Bostic's) own conduct," Jennings told Jarvis. "I'm here because the law is what it is, and I took an oath to follow it."
While Jarvis said he did not fault Jennings for following orders to appeal the case, he could not, in good conscience, imprison Bostic.
"I think it'd be cruel and inhuman treatment to put this man in the general prison population in the state he's in now," Jarvis said. "We've got to do our best to do justice."
The judge did, however, order Bostic to be under house arrest and electronically monitored for a year. Bostic won't be monitored right away because the U.S. Probation Office has run out of devices.
"Why we don't have these devices, I don't know," Jarvis said. "I guess because the Justice Department is spending money on more important things."
Things, he said, like appeals.
Asked whether he will appeal Jarvis' ruling a second time, Jennings said, "That's to be decided."
Goins' second sentencing hearing has not yet been set. Tollison said he is awaiting the Supreme Court decision on the constitutionality of the guidelines.
The point of posting the local paper's coverage is that for the judge it is as much about judicial discretion as it is about the age and law-abiding nature of the individual. In additon, the sentances for those jailed was as low as 5 months and that the 3 "old coots" were originally given probation, but the mandated sentancing guidelines required jail.
