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If Your Llama's on the Lam, Fight the Conviction

By Robyn Hagan Cain on June 28, 2012 | Last updated on March 21, 2019

The Seventh Circuit Court of Appeals appreciates exotic animals and irony more than most of its sister circuits. Lucky for you, the court touched on both of these topics in this safety valve sentencing appeal.

Once upon a time, Mark Burge’s llama escaped from its pen and wandered away. A llama on the loose counts as misdemeanor abandonment under the Illinois animal cruelty statute. Rather than hire a lawyer to defend against the charge, Burge chose to plead guilty and pay a $525 fine. Burge moved on with his life, (hopefully with the llama by his side).

Three years later, Burge again pled guilty to a crime -- this time a federal charge for possession of several hundred marijuana plants -- and the llama incident "returned with a vengeance." The marijuana conviction called for a mandatory minimum 10 years in prison because the llama conviction counted for a criminal history point on Burge's permanent record. That's right. Burge got a 10-year sentence. For marijuana.

But for the wayward llama, Burge could have avoided the mandatory minimum by qualifying for the statutory safety valve, and his Sentencing Guidelines range would have been 18 to 24 months in prison. Thanks to the llama conviction, Burge's pot garden was his second point, and the sentencing safety valve was no longer an option.

Or was it?

The Seventh Circuit Court of Appeals observed that no one involved in the case -- including the district judge, the prosecuting attorneys, defense counsel, or even the appellate court --thought Burge's sentence was appropriate under the circumstances, so the court vacated the 10-year sentence and remanded the matter for re-sentencing.

In subsection 4A1.2(c), the Sentencing Guidelines provides examples, rather than an exhaustive list, of prior offenses that should not count as criminal history points. This permits district courts to use their judgment in situations involving unusual offenses, such as negligent abandonment of a llama. The district court in this case, however, did not employ its discretion.

In vacating Burge's sentence, Seventh Circuit Judge David Hamilton, noted, "It would be manifestly unjust (and perhaps unbearably ironic) for Burge to serve eight or more additional years in a federal penitentiary because he once allowed his llama to escape from its pen. The district court plainly erred in failing to exclude Burge's llama abandonment conviction under subsection 4A1.2(c)."

There's no guarantee Burge meets the safety valve criteria, but at least now he can make an argument for why it should apply.

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