Crack Dealer Catches a Break on Sentence, Not on Conviction

Parnell Gulley's defense to crack-dealing charges were intoxication and ignorance of what was in the clear plastic baggie that he exchanged for $200. More surprising than the notion that someone would actually try that defense was the outcome: it almost worked.

Unfortunately for Gulley, after the first jury deadlocked, the second jury convicted him of the sole count of knowingly and intelligently distributing crack cocaine.

Gulley was sentenced at an odd time. The Fair Sentencing Act of 2010 (FSA) had just passed, but circuits disagreed on whether pre-FSA conduct subject to post-FSA sentencing was eligible for relief. The trial court, recognizing a circuit split, reluctantly applied the controlling Seventh Circuit's rule. He did, however, state, "And, very frankly, I hope the Supreme Court rules in your way. That will be their choice, and we'll see what happens."

The Conviction

Object early, often, and with specificity

Instead of objecting at trial, or explicitly opposing the introduction of possibly-criminal conduct not directly related to the actual charge on 404(b) propensity grounds, Gulley's attorney merely issued the following "terse" motion in limine:

"The Defendant asks that the Plaintiff be prohibited from introducing [evidence] which pertain to dates other than October 21, 2008. The Plaintiff has filed a single charge and it should not be allowed to attempt to show other bad conduct to prejudice the Defendant on the Indictment charge."

It sounds kinda like 404(b), or maybe even 403 relevance. The non-specific language, however, leaves Gulley with nothing but a plain error argument on appeal.

Plain Error Analysis

Truth be told, plain error or not, Gulley very well may have failed here.

The defense, which presented no testimony, argued against the "knowingly and intelligently" element. The government is entitled to rebut the defense, no matter how ridiculous or cursory it may be. They presented evidence that Gulley drove his boss to drug deals, as well as evidence seized in a search of his boss' stash house, which Gulley had access to.

Though the ecstasy and firearm seized from the stash house aren't directly relevant to a crack deal, access to drugs and tools-of-the-trade lend credence to the theory that Gulley knew what those little white rocks were in the bag he delivered.

Sentencing

The trial judge got his wish in Dorsey v. United States, when the Supreme Court ruled that pre-FSA conduct sentenced post-FSA should receive the benefit of the lower mandatory minimums.

However, Gulley may have already received the FSA's benefits. Even while stating that the Seventh Circuit's prior case was controlling, and that the FSA did not apply, the court departed downward to exactly what the FSA would've required. Was the court, while professing adherence, cleverly sidestepping the Seventh?

We're not mind readers, nor is the Seventh Circuit. Because the rationale for the downward departure was not explained by the court, the sentence was vacated and remanded for resentencing. It'd be funny, if after all of the appeals, Gulley ends up with the exact same sentence.

Related Resources:

• United States v. Parnell Gulley (Seventh Circuit Court of Appeals)
• Break Plea, Flee to Mexico, Get Below-Guidelines Sentence, Appeal (FindLaw's Seventh Circuit Blog)
• Worst Defense Ever: My 41 Other Arrests Don't Count (FindLaw's Seventh Circuit Blog)