Many options in sentencing of Upland's Aaron Sandusky

November 16, 2012

Wes Woods II , Contra Costa Times

Aaron Sandusky's potential sentence of 10 years to life for growing, possessing and intending to sell marijuana may seem severe, but his is one of only a handful of similar cases to have made it to the courtroom.

Sandusky, president of a medical marijuana dispensary based in Upland, was convicted in October in federal court of eight drug charges.

Proponents of medical marijuana say Sandusky's case is one of only four in recent years where the defendant has fought prosecutors to trial.

According to Kris Hermes, spokesman for Oakland-based Americans for Safe Access, only three similar cases have been tried in recent years - Charles C. Lynch of Arroyo Grande, a former Morro Bay medical marijuana dispensary owner; Montana resident Christopher Williams; and Michigan father and son Gerald and Jeremy Duval.

"Very few cases go to trial," Hermes said.

That being the case, it's difficult to predict just how much time Sandusky might get.

Former U.S. District Court Judge Stephen Larson cited federal sentencing guidelines and suggested that in a case like Sandusky's the sentence will likely be closer to the minimum.

He noted, however, that federal judges have considerable latitude in meting out sentences.

"I'm not predicting what the federal judge is going to do," he said.

He also noted that unlike most crimes, which carry a maximum but no minimum sentence, drug offenses often carry mandatory minimum sentences.

"The particular charges for Mr. Sandusky, conspiracy to manufacture marijuana plants, possession with intent to distribute and other charges, those charges carry a mandatory minimum sentence of 10 years in prison," Larson said.

Lynch, the former Morro Bay medical marijuana dispensary owner, faced up to 20 years for selling more than $2.1 million in marijuana in one year at the Central Coast Compassionate Caregivers dispensary.

Drug Enforcement Administration agents raided Lynch's medical marijuana dispensary in March 2007 after he operated it for 11 months. He and his employees were also charged with selling marijuana to 281 minors during the same year.

U.S. District Judge George Wu sentenced him to a reduced term of a year and a day in prison in June 2009 after finding that Lynch merited an exception to a mandatory minimum five-year sentence as prescribed by the sentencing guidelines.

Wu added he was bound by law to give at least a one-year sentence.

The conviction on five marijuana-related offenses was one of the first in the nation to be challenged in federal court after U.S. Attorney General Eric Holder announced earlier that year that the federal government would only target medical marijuana dispensaries when it appeared they were using state law as cover for illegal narcotics operations.

During the case, Wu indicated that the Justice Department's clarification of its newly stated position on medical marijuana prosecutions would not change Lynch's conviction but could affect his sentence.

Additionally, Wu seemed to ponder whether Lynch could be sentenced for an activity that he believed to be legal under Morro Bay municipal codes.

Thom Mrozek, a spokesman for the U.S. Attorney's Office in Los Angeles, said both sides are appealing the Lynch verdict, with federal prosecutors appealing the sentence and the defense appealing the conviction.

As in Lynch's case, Larson said it's possible Sandusky's judge could disregard the statutes and guidelines and make his own sentence.

"Ultimately, a federal judge will impose the sentence they feel," he said. "If it's contrary to the statute, the government will appeal and go to the appellate court. But at the end of the day, federal judges are independent."

In Montana, where medical marijuana is also legal, federal prosecutors successfully charged Christopher Williams, who was convicted in September of eight counts of conspiring to grow and distribute marijuana, possession with intent to distribute and possession of a firearm during a drug-trafficking offense.

Williams faces a mandatory minimum sentence of more than 80 years in prison.

The U.S. Attorney's Office has offered to dismiss six of the eight counts, which would lower Williams' minimum sentence to 10 years, but has demanded in return that Williams waive his right to appeal the remaining convictions.

Williams has rejected the offer. His attorney, Michael Donahoe, a senior litigator for the Federal Defenders of Montana, declined to comment for this report.

In Michigan, father and son Gerald and Jeremy Duval were convicted of growing marijuana in greenhouses, and while they claimed it was for medicinal purposes, the judge at sentencing found their operation suggested otherwise.

"When you're in compliance with state law I believe they should leave you alone," Gerald Duval said of the federal government on Wednesday in a phone interview while waiting to be imprisoned.

Gerald Duval, 52, said he uses medical marijuana for diabetes, glaucoma and other health problems. He was sentenced to 10 years in prison.

His caregiver son, 30-year-old Jeremy, was sentenced to five years in prison.

"We were convicted because the jury was instructed to follow this violation of federal law," Gerald Duval said. "During jury selection, every juror was asked, `Can you find them guilty for violating federal law?' Even though there is licensed medical marijuana in Michigan. Manufacturing over 100 plants, that carries a mandatory five years. That's why Jeremy got five years. I got 10 years because I'm an ex-felon. I was convicted of cocaine charges in the mid '80s."

Hermes said the Duvals were complying with state law and were cultivators for a handful of patients when they were caught up in "what amounts to a series of federal attacks across the country on marijuana. Well over 200 raids have been conducted by the DEA since (President Barack) Obama took office and those raids have resulted in around 100 indictments."

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