Winfred Ware Jr.
Winfred Earl Ware, Jr.
United States District Court
Eastern District of Texas
Lufkin Division
Case. No. 9:18-cr-43-1
First-time, nonviolent, low-level drug offender Winfred Ware Jr. is crushed with 15 years in federal prison, a system that does not offer parole, a product of the flawed methamphetamine (“actual”) U.S. Sentencing Guidelines.
Low-level, nonviolent, first-time offender Winfred Ware Jr. is the face of over-sentencing in federal court. His case is a prime example of how federal prison sentences can be inflated well beyond what is reasonable.
After a one-day trial, the jury convicted Winfred of conspiracy to possess with the intent to distribute more than 50 grams of methamphetamine.
Winfred was never caught with drugs, nor was he observed selling drugs. In fact, no physical evidence linked Winfred to the sale of methamphetamine—particularly noteworthy given the government executed a search warrant and seized all of Winfred’s electronics. Instead, in exchange for a significantly reduced prison sentence, the drug dealer who really sold the 99 grams of methamphetamine testified that he got the drugs from Winfred.
That was Winfred’s crime, selling 99 grams of methamphetamine.
To be fair, at sentencing, the judge held that in addition to the 99 grams proved at trial, Winfred was responsible for 112 grams, for a total of 211 grams of methamphetamine. There was no physical proof of the additional 112 grams, nor did Winfred get to face his accuser regarding the accusation. It’s what is commonly referred to as “ghost dope.” In particular, to support the additional nonexistent 112 grams in uncharged methamphetamine tacked on at the sentencing phase, the judge relied on uncorroborated, untested, out-of-court hearsay from the same drug dealer turned government witness who testified against Winfred at his trial.
Oddly enough, this additional amount was not mentioned during the trial.
There was also no money (i.e., profits) traced to the alleged drug sales, that is, no bank accounts or records of other financial transactions. It’s not as though Winfred was accused of being a big-time drug dealer who made substantial profits. He was in college, working, and even doing community outreach while living with his mother and acting as her caretaker.
Under the broken methamphetamine actual guidelines, Winfred's sentence was basically doubled
The issue is fairly straightforward. The U.S. Sentencing Guidelines use drug purity as a proxy for a defendant's culpability. The Guidelines say, in relevant part, “the fact that a defendant is in possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs.” U.S.S.G. § 2D1.1 cmt. n.27(C). As a result, the Guidelines make a distinction between “methamphetamine” and “actual methamphetamine.” Id. § 2D1.1(c). All else equal, defendants caught with actual methamphetamine get longer sentences than defendants caught with methamphetamine mixture. Id. “No other drug is punished more severely based on purity.” United States v. Hayes, 948 F.Supp.2d 1009, 1025 (N.D. Iowa 2013) (citation omitted).
The distinction is significant for Winfred.
Under the methamphetamine U.S. Sentencing Guidelines, Winfred’s sentencing range was 78 - 97 months in prison.
But instead of using the methamphetamine Guidelines, the judge used the methamphetamine actual Sentencing Guidelines, which are ten times harsher than the methamphetamine Guidelines.
The 211 grams of actual methamphetamine is equivalent to 2 kilograms of methamphetamine. Over the years, the 10:1 disparity has routinely resulted in unduly harsh and excessive prison sentences. This has resulted in much criticism from some of the country’s most highly regarded federal judges, who refused to impose the sentences recommended under the broken, outdated Guidelines.
In Winfred’s case, using the actual Guidelines caused the sentencing range yielded by the U.S. Sentencing Guidelines to almost double. It leaped from 78 to 97 months in prison up to 151 to 188 months in prison. As a result, Winfred received a 188-month sentence—15 years, without parole, in federal prison for a first-time, low-level, nonviolent drug crime. Put differently, instead of a 6 ½ to 8-year sentence under the methamphetamine Guidelines, Winfred received a 15-year sentence, about twice as long, which is no small thing given there is no parole in the federal system.
What’s striking here is for the methamphetamines to be counted under the actual methamphetamine Guideline, it must be at least 80 percent pure. But only some of the methamphetamine was tested. Remember, most of the methamphetamine pinned on Winfred was never recovered—it was “ghost dope.” Thus, the court just assumed that the “ghost methamphetamine” was also at least 80 percent pure, which is incredibly unfair given this speculation almost doubled Winfred’s prison term. This practice, too, has been denounced by many courts. One court held that sometimes it’s just a crap shoot depending on which seized drugs were tested, “a fact unrelated to any conduct or action by the defendant.”
The judiciaries’ vocal criticism against the brokenness of the methamphetamine actual guidelines signals that the outdated Guidelines will likely be discarded soon.
For over a decade, many federal judges have refused to impose the excessively harsh sentences produced under the methamphetamine actual Guidelines, taking the position that there is no empirical basis for the 10:1 disparity and that the Guideline is fundamentally flawed. There is no legal justification for enhanced punishment—it’s based on a faulty premise. For perspective, under the unduly harsh actual methamphetamine Guidelines, Winfred’s 211 grams of methamphetamine is equal to 50 KG of cocaine or 10 KG of heroin— 50kg of cocaine!
What’s more, U.S. Judges nationwide are increasingly calling the methamphetamine Guidelines “outdated” and “broken,” pointing out that the empirical data conclusively demonstrates that whether a defendant is a low-level addict or drug kingpin, the methamphetamine is at least 80 percent pure. This debunks the notion that purity is a proxy for culpability, which is the rationale behind the 10:1 disparity, an inherently unfair, broken Guideline that yields equally unfair and broken prison sentences. Regarding the methamphetamine actual guidelines, here are just a handful of excerpts from U.S. Judges:
“There is no empirical basis for the Sentencing Commission’s 10-to-1 weight disparity between actual methamphetamine and methamphetamine mixture.”
“I have tried to determine whether there is any empirical data from the Sentencing Commission or in the academic literature which would justify the ratio. I have found none.”
“Today, most methamphetamine seized at all distribution levels is remarkably pure, which means that higher purity is not a good indicator of a defendant’s place in the chain of distribution.”
“Since the Guidelines first took effect, unusually pure methamphetamine has become increasingly more common.”
“The Guidelines use drug purity as a proxy for culpability, but national experience suggests that it is no longer true for methamphetamine as DEA data show that most methamphetamine confiscated today is ‘pure’ regardless of whether the defendant is a kingpin or low-level addict.”
“Just as courts have criticized the link between drug quantity and the offender’s role, they have also debunked the Guidelines’ assumed connection between drug purity and criminal role.”
“This court joins other district courts in rejecting the methamphetamine guidelines’ 10-to-1 ratio because it is ‘based on a flawed assumption that methamphetamine purity is a proxy for role in the offense.”
“The court declares a policy disagreement with the methamphetamine Guidelines.”
“The Guidelines sentencing ranges—which are grounded in outdated assumptions about purity of methamphetamine and where results for any particular defendant can depend on the availability of testing—no longer align with the goals [of government sentencing].”
"The enhanced based offense level for actual methamphetamine does not reflect culpability, severity of offense, or proximity to the source, but today is often simply an indicator that lab testing was performed and received in time for sentencing."
Most noteworthy is the Chair of the U.S. Sentencing Commission/ U.S. Judge Reeve’s recent opinion, an indictment of the flawed methamphetamine actual Guidelines. Judge Reeves reiterates what the many courts before him have stressed: https://casetext.com/case/united-states-v-robinson-2534
As was explained, Congress created the 10:1 disparity based on the premise that when methamphetamine is at least 80 pure, the offender is at the very top of the distribution chain. But in practice, judges have observed that is not always the case. Thus, people like Winfred, who was not a leader/organizer of any kind or at the top of the drug world hierarchy but instead was just a guy in college serving as the live-in caretaker for his mother, who was accused of peddling small amounts, is punished under a harsh methamphetamine actual Guideline that wrongly assumes that he needs greatly enhanced punishment because the purity of his methamphetamine automatically means he’s a drug kingpin, resulting in an excessive prison term that is divorced from reality.
As Judge Reeves put it, "Given the on-the-ground reality in methamphetamine cases, the better way to determine culpability is to examine all of the circumstances of the defendant's case and life -seeing the defendant as a 'whole person,' as the Supreme Court just instructed in Concepcion. There are sentencing enhancements available for leaders, organizers, or managers of criminal enterprises. If the defendant's case warrants, those enhancements should be applied. In the context of methamphetamine, though, purity is no longer probative of the defendant's culpability."
The backlash has picked up steam, and it is likely that next year, the U.S. Sentencing Commission will finally rectify this inequity by eliminating the harsh methamphetamine actual guidelines under which Winfred was sentenced.
Winfred’s pre-prison life included college, steady employment, and community outreach designed to help buy young kids school supplies
Until now, Winfred had never been to prison. He’s a first-time offender. Before prison, Winfred was enrolled in Kilgore College and, after completing an electrical program there, entered the Eastman plant electrician apprenticeship. When he was laid off, he began selling food at the local Little League field complex.
He forged community roots and key relationships there that spurred him to create the Back to School Extravaganza. More specifically, he created the Balls & Dolls kickball tournament. During the tournament, he would sell all the food he made, with the proceeds going to buy school supplies for local children.
Winfred’s extensive post-conviction rehabilitative efforts
In prison, Winfred has invested his time in self-improvement and developing practical skills he will use when released. In particular, he completed the Department of Labor 8000-hour Electrician Apprenticeship Program. Upon walking out of the prison gates, all he must do is pass the state exam, and he will be a licensed electrician, ready to earn a substantive living. Additionally, Winfred obtained his GED. Moreover, he has completed a drug treatment program, adult continuing education classes, release preparation programs, and more.
He has also been a model inmate with exemplary behavior. Additionally, he works a full-time, demanding job as one of the electricians for the prison where he’s housed.
His PATTERN score is a minimum risk of recidivism. He has minimum security points, the lowest designation possible.
Low-level, nonviolent Winfred received a sentence on par with large-scale violent kingpins who rule over massive drug empires
In all, a picture emerges. Winfred is not a hardened criminal who must sit in a cage for 15 long years to pay for his crimes. For comparison’s sake, Tony Hernandez, a cartel drug kingpin of a massive methamphetamine conspiracy that the U.S. Attorney’s Office for the Northern District of Texas said distributed more than $100 million worth of 100 percent pure methamphetamine a year, received just 15 years in prison, the same sentence Winfred received: https://www.justice.gov/usao-ndtx/pr/prosecution-methamphetamine-dto-results-lengthy-federal-prison-sentences
Similarly, in the Northern District of Texas Dallas Division, Todd Walker was the kingpin of an 80-man methamphetamine conspiracy involving over 100 kilograms of methamphetamine—he was a high-ranking Aryan Brotherhood member. As part of the conspiracy, Todd kidnapped a woman who owed a drug debt and brutally beat her while his minions videoed the assault. Kingpin Todd received 188 months, the same sentence as Winfred: https://www.justice.gov/usao-ndtx/pr/dallas-man-sentenced-20-years-federal-prison-role-leader-methamphetamine-distribution
Winfred, a relatively young man of 33, has expended real effort to learn and acquire skills as an electrician and has taken a host of other programs that have equipped him with tangible and intangible skills to help him live a law-abiding life of substance.
If anyone is deserving of a second chance, it’s Winfred. In our opinion, a first-time, nonviolent, low-level offender such as Winfred would have been deterred by a term of probation, so 15 years is just too long. Winfred is not some throw-away criminal who needs to be incapacitated.