ANDREW FAHIE'S CO-DEFENDANT SEEKS TO AVOID PRISON AS A ZERO-POINT OFFENDER; UNINTENDED CONSEQUENCES?

( From a summary of the USSG Amendments)

The New Adjustment for Zero-Point Offenders

The newly created U.S.S.G. § 4C1.1 provides a 2-point offense level reduction for certain zero-point offenders.  The defendant must meet all of the following criteria to qualify for the 2-level reduction:

1. the defendant has not received any criminal history points;
2. the defendant has not received an adjustment for terrorism (covered by § 3A1.4);
3. the defendant did not use violence or credible threats of violence in connection with the offense;
4. the offense did not result in death or serious bodily injury;
5. the offense of conviction is not a sex offense;
6. the defendant did not personally cause substantial financial hardship (to be determined independently of the application of § 2B1.1(b)(c));
7. the defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
8. the offense of conviction is not an offense involving individual rights (covered by § 2H1.1);
9. the defendant did not receive an adjustment under § 3A1.1 (hate crime motivation or vulnerable victim) or § 3A1.5 (serious human rights offense); and,
10. the defendant did not receive an adjustment under § 3B1.1 (aggravating role) and was not engaged in a continuing criminal enterprise.

Implications for Sentencing

Relatedly, the Sentencing Commission amended § 5C1.1 application note 4 to advise that a sentence other than imprisonment is “generally appropriate” if a person is in Zone A or B of the sentencing table and gets a § 4C1.1 reduction.  It also advises that a departure, including a sentence of non-imprisonment, may be appropriate for a person in any sentencing zone if the qualify for § 4C1.1 and the guidelines range overstates the gravity of the offense.

KADEEM MAYNARD, one of the co-defendants of former BVI Premier ANDREW FAHIE, and who was arrested in Fahie's high-profile SDFL money laundering and cocaine trafficking case, and who entered a guilty plea in the case, is seeking a non-custodial sentence, relying upon the new provision in the US Sentencing Guidelines that actually allows the Court to allow qualifying first offenders to avoid Federal Prison, even in serious cases. As you can see above, the new regulation USSG 4C1.1 not only provides for a reduction in the offense level, it allows a sentencing judge to impose a sentence of "non-imprisonment," meaning Home Confinement (house arrest), or even Probation. 

Here's where the Law of Unintended Consequences comes in. Maynard, a native British Virgin Islander who allegedly originated the criminal conspiracy that ensnared not only the disgraced former BVI leader Fahie, but his mother, the head of the local port authority. He is an alleged drug trafficker who owns a boat and "has access to a private aircraft." Whether he is a career criminal is not confirmed, but treating him as a Zero-Point offender, which was designed for law-abiding individuals who may have made a mistake in judgment, and run afoul of Federal criminal law, was certainly not the intention of the US Sentencing Commission, when it created 4C1.1 to aid first offenders. 

Give him  a custodial sentence, and the opportunity to later receive a Rule 35 Sentence Reduction after he testifies against Fahie, who as the leader of the British Virgin Islands, and who openly stated that he had been involved in narcotics matters previously, should receive a substantial sentence after conviction, to deter other Caribbean leaders who consider aiding narcotics traffickers.

Furthermore, it appears that this new amendment does not even take effect until November 1. Does he even qualify? Maynard could avoid not only the 10-year minimum mandatory and even life, sentence, but prison altogether. We hope that the sentencing judge will disregard this get-out-of-jail-card that the defendant seeks to play, when he is sentenced on August 21, 2023, and impose an appropriate sentence. After all, it was Maynard that initiated this case.