addict exception in District of Columbia

2000The question as to whether the addict exception should be used in sentencing is committed to “the sound discretion of the trial judge.... ” Stroman v. United States, 606 A.2d 767, 770 (1992) (citing Grant v. United States, 509 A.2d 1147, 1154 (D.C.1986)).

1995D.C.Code § 33-501(26) (1995). 7 We have stated that “the addict requirement would be satisfied if the defendant shows habitual use of narcotic drugs, even if [he or] she cannot prove physical addiction.” Dupree, supra, 583 A.2d at 1000 (citing Grant, supra, 509 A.2d at 1152-53 ). “[T]he defendant must relate [his] habitual use of drugs to the endangerment of the public or to the loss of self-control with reference to [his] addiction.” Id. at 1003; See D.C.Code § 33-501(24).

1997See, e.g., Dupree v. United States, 583 A.2d 1000, 1002-04 (D.C.1990). 23 The trial judge therefore could not determine without a hearing whether there is a reasonable probability that counsel’s apparent failure to present effectively Dantzler’s qualifications for the addict exception brought about the judge’s finding that Dant-zler was ineligible.

1995D.C.Code § 33-501(26) (1995). 7 We have stated that “the addict requirement would be satisfied if the defendant shows habitual use of narcotic drugs, even if [he or] she cannot prove physical addiction.” Dupree, supra, 583 A.2d at 1000 (citing Grant, supra, 509 A.2d at 1152-53 ). “[T]he defendant must relate [his] habitual use of drugs to the endangerment of the public or to the loss of self-control with reference to [his] addiction.” Id. at 1003; See D.C.Code § 33-501(24).

1995It is the defendant’s burden to demonstrate eligibility for the addict exception “so that the exception does not become a ‘loophole for drug users who are also sellers.’ ” Stroman v. United States, 606 A.2d 767, 769 (D.C. 1992) (quoting Brandon v. United States, 553 A.2d 640, 642 (D.C.1989)).

1992In making the determination of whether a defendant qualifies for the addict exception, the trial judge “must determine at the time of the sentencing whether the defendant’s proffer ... demonstrates that the defendant was an ‘addict’ at the time of the offense and committed the offense to obtain drugs for his personal use or his drug addiction.” Grant, supra, 509 A.2d at 1154 ; see Brandon v. United States, 553 A.2d 640, 642 (D.C.1989); Dupree v. United States, 583 A.2d 1000, 1002 (D.C.1990).

1986It seems strange that the addict exception is available at sentencing when a convicted cocaine dealer proffers credible evidence that he or she distributed the drug to support a heroin habit, see Banks v. United States, 516 A.2d 524 (D.C.1986), but is not available when a convicted heroin dealer can prove that he or she sold the drug to support a cocaine habit.

1986It seems strange that the addict exception is available at sentencing when a convicted cocaine dealer proffers credible evidence that he or she distributed the drug to support a heroin habit, see Banks v. United States, 516 A.2d 524 (D.C.1986), but is not available when a convicted heroin dealer can prove that he or she sold the drug to support a cocaine habit.

2000The question as to whether the addict exception should be used in sentencing is committed to “the sound discretion of the trial judge.... ” Stroman v. United States, 606 A.2d 767, 770 (1992) (citing Grant v. United States, 509 A.2d 1147, 1154 (D.C.1986)).

1998We have held repeatedly that, “[t]his court will accept the trial court’s resolution of conflicting testimony, and will not disturb a factual finding underlying the trial court’s determination of eligibility for the addict exception unless the finding is plainly wrong or without evidence to support it.” Stroman v. United States, 606 A.2d 767, 769 (D.C.1992); see D.C.Code § 17-305(a) (1997).

1998We extend this deference because the trial court is entrusted with wide discretion, “in determining the kind and extent of punishment to be imposed within limits fixed by law_” Butler v. United States, 379 A.2d 948, 950 (D.C.1977) (quoting Williams v. New York, 337 U.S. 241, 246 , 69 S.Ct. 1079 , 93 L.Ed. 1337 (1949)).

1992Clearly, a trial judge possesses “wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed....” Butler v. United States, 379 A.2d 948, 950 (D.C.1977) (quoting Williams v. New York, 337 U.S. 241, 246 , 69 S.Ct. 1079, 1082 , 93 L.Ed. 1337 (1949)); Grant v. United States, 509 A.2d 1147, 1154 (D.C.1986).

1998See Mozelle v. United States, 612 A.2d 221, 223-24 (D.C.1992).

1997Mozelle v. United States, 612 A.2d 221, 223-24 (D.C.1992).

1992See Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981).

1992See Caldwell v. United States, 595 A.2d 961, 966 (D.C.1991); Johnson v. United States, 508 A.2d 910, 911 (D.C.1985); Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981); Super.Ct.Crim.R. 32. *224 Where, as here, a judge does not proceed with an addict exception hearing because he has determined from the presentence report that he will implement the mandatory minimum sentence, there is no abuse of discretion.

2011The addict exception permits a sentencing court to reduce the sentence below the mandatory minimum when the defendant makes the requisite showing ...; [it] neither authorizes nor requires the court to increase the sentence beyond what would otherwise be the lawful maximum (or minimum).” Id. at 735 . 6 .

1992Dupree v. United States, 583 A.2d 1000, 1002 (D.C.1990); Finney v. United States, 527 A.2d 733, 734 (D.C.1987). 7 . 18 U.S.C. § 4251 etseq., repealed by Pub.L. 98-473, 98 Stat. 2027, 2031 (1984).

1992See Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981).

1992See Caldwell v. United States, 595 A.2d 961, 966 (D.C.1991); Johnson v. United States, 508 A.2d 910, 911 (D.C.1985); Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981); Super.Ct.Crim.R. 32. *224 Where, as here, a judge does not proceed with an addict exception hearing because he has determined from the presentence report that he will implement the mandatory minimum sentence, there is no abuse of discretion.

1992See Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981).

1992See Caldwell v. United States, 595 A.2d 961, 966 (D.C.1991); Johnson v. United States, 508 A.2d 910, 911 (D.C.1985); Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981); Super.Ct.Crim.R. 32. *224 Where, as here, a judge does not proceed with an addict exception hearing because he has determined from the presentence report that he will implement the mandatory minimum sentence, there is no abuse of discretion.

1992See Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981).

1992See Caldwell v. United States, 595 A.2d 961, 966 (D.C.1991); Johnson v. United States, 508 A.2d 910, 911 (D.C.1985); Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981); Super.Ct.Crim.R. 32. *224 Where, as here, a judge does not proceed with an addict exception hearing because he has determined from the presentence report that he will implement the mandatory minimum sentence, there is no abuse of discretion.

1990We note, finally, that Dupree apparently failed to proffer evidence at the sentencing hearing that suggests a drug rehabilitation program which she is likely to complete successfully as an alternative to the mandatory-minimum sentence. 6 We held in Grant that a defendant seeking the addict exception should propose such a program in her proffer, but did not make the inclusion of such a proposal absolutely mandatory. 509 A.2d at 1154 ; see also Banks v. United States, 516 A.2d 524, 530-31 (D.C. 1986), cert. denied, 484 U.S. 975 , 108 S.Ct. 485 , 98 L.Ed.2d 483 (1987).

1990The prosecutor promptly corrected the mistake, see Brandon v. United States, 553 A.2d 640, 643 (D.C.1989); Banks v. United States, 516 A.2d 524 (D.C.1986), cert. denied, 484 U.S. 975 , 108 S.Ct. 485 , 98 L.Ed.2d 483 (1987), and defense counsel then argued that appellant’s prior conviction was not disqualifying.

1990We note, finally, that Dupree apparently failed to proffer evidence at the sentencing hearing that suggests a drug rehabilitation program which she is likely to complete successfully as an alternative to the mandatory-minimum sentence. 6 We held in Grant that a defendant seeking the addict exception should propose such a program in her proffer, but did not make the inclusion of such a proposal absolutely mandatory. 509 A.2d at 1154 ; see also Banks v. United States, 516 A.2d 524, 530-31 (D.C. 1986), cert. denied, 484 U.S. 975 , 108 S.Ct. 485 , 98 L.Ed.2d 483 (1987).

1990The prosecutor promptly corrected the mistake, see Brandon v. United States, 553 A.2d 640, 643 (D.C.1989); Banks v. United States, 516 A.2d 524 (D.C.1986), cert. denied, 484 U.S. 975 , 108 S.Ct. 485 , 98 L.Ed.2d 483 (1987), and defense counsel then argued that appellant’s prior conviction was not disqualifying.

1990We note, finally, that Dupree apparently failed to proffer evidence at the sentencing hearing that suggests a drug rehabilitation program which she is likely to complete successfully as an alternative to the mandatory-minimum sentence. 6 We held in Grant that a defendant seeking the addict exception should propose such a program in her proffer, but did not make the inclusion of such a proposal absolutely mandatory. 509 A.2d at 1154 ; see also Banks v. United States, 516 A.2d 524, 530-31 (D.C. 1986), cert. denied, 484 U.S. 975 , 108 S.Ct. 485 , 98 L.Ed.2d 483 (1987).

1990The prosecutor promptly corrected the mistake, see Brandon v. United States, 553 A.2d 640, 643 (D.C.1989); Banks v. United States, 516 A.2d 524 (D.C.1986), cert. denied, 484 U.S. 975 , 108 S.Ct. 485 , 98 L.Ed.2d 483 (1987), and defense counsel then argued that appellant’s prior conviction was not disqualifying.

1997See also Mack, supra, 570 A.2d at 786 (where case is remanded for hearing on issue of deficient performance, trial court should also make a determination as to prejudice).

1997See also Mack, supra, 570 A.2d at 786 (where case is remanded for hearing on issue of deficient performance, trial court should also make a determination as to prejudice).

1996See Shabazz v. United States, 606 A.2d 191 (D.C.1992) (affirming denial of addict exception because the defendant had an out-of-state conviction for distributing drugs).

1996See Shabazz v. United States, 606 A.2d 191 (D.C.1992) (affirming denial of addict exception because the defendant had an out-of-state conviction for distributing drugs).

1994Gibson v. United States, 602 A.2d 117, 119 (D.C.1992); see also Brandon v. United States, 553 A.2d 640 (D.C.1989).

1992Id.; accord United States v. Ahumada-Aratos, 875 F.2d 681, 683-84 (9th Cir.), cert. denied, 493 U.S. 837 , 110 S.Ct. 118 , 107 L.Ed.2d 79 (1989).

1992See Caldwell v. United States, 595 A.2d 961, 966 (D.C.1991); Johnson v. United States, 508 A.2d 910, 911 (D.C.1985); Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981); Super.Ct.Crim.R. 32. *224 Where, as here, a judge does not proceed with an addict exception hearing because he has determined from the presentence report that he will implement the mandatory minimum sentence, there is no abuse of discretion.

1992See Caldwell v. United States, 595 A.2d 961, 966 (D.C.1991); Johnson v. United States, 508 A.2d 910, 911 (D.C.1985); Williams v. United States, 427 A.2d 901, 904 (D.C.1980), cert. denied, 450 U.S. 1043 , 101 S.Ct. 1763 , 68 L.Ed.2d 241 (1981); Super.Ct.Crim.R. 32. *224 Where, as here, a judge does not proceed with an addict exception hearing because he has determined from the presentence report that he will implement the mandatory minimum sentence, there is no abuse of discretion.

1992Id.; accord United States v. Ahumada-Aratos, 875 F.2d 681, 683-84 (9th Cir.), cert. denied, 493 U.S. 837 , 110 S.Ct. 118 , 107 L.Ed.2d 79 (1989).

1992Id.; accord United States v. Ahumada-Aratos, 875 F.2d 681, 683-84 (9th Cir.), cert. denied, 493 U.S. 837 , 110 S.Ct. 118 , 107 L.Ed.2d 79 (1989).

1992Id.; accord United States v. Ahumada-Aratos, 875 F.2d 681, 683-84 (9th Cir.), cert. denied, 493 U.S. 837 , 110 S.Ct. 118 , 107 L.Ed.2d 79 (1989).

1990See Grant v. United States, 509 A.2d 1147, 1154 (D.C.1986) (defendant has burden to demonstrate her eligibility for the addict exception); see also Strickland, supra, 466 U.S. at 694 , 104 S.Ct. at 2068 .

1990See Grant v. United States, 509 A.2d 1147, 1154 (D.C.1986) (defendant has burden to demonstrate her eligibility for the addict exception); see also Strickland, supra, 466 U.S. at 694 , 104 S.Ct. at 2068 .

1989Banks’ trial was by the court without a jury, and the judge was the trier of fact. 5 .See also Muldrow v. United States, 525 A.2d 1031, 1032-33 (D.C.1987) (per curiam), following Grant and holding that Muldrow’s statement, apparently to the Pretrial Services Agency, that "I do not use drugs” did not obviate the need for an inquiry into his eligibility for the addict exception. 6 .