KANSAS CITY, KAN. — Sentencing was postponed Tuesday for a man facing life in prison with no parole for being caught with a large amount of crack cocaine on the Kansas University campus.
It's the harshest penalty short of execution and is on par with the sentence handed down this month to Sept. 11 conspirator Zacarias Moussaoui. A sentencing-reform advocate calls it "profoundly unjust," but prosecutors say it reflects Congress' desire for tough drug laws.
Theogen E. Garner, 42, of Leavenworth County, was scheduled to be sentenced Tuesday to a mandatory life sentence under a "three-strikes" drug law. But sentencing was delayed after Garner contested fingerprint records that prosecutors are trying to use to show he is the same person convicted for possession of cocaine and sale of marijuana in 1988 and 1991 cases in Leavenworth County.
U.S. District Judge Carlos Murguia rescheduled sentencing for June 23.
After his arrest in July 2005, Garner initially was facing a minimum sentence of 10 years in prison. But that increased to life when, shortly before his trial in February 2006, U.S. Atty. Eric Melgren's office decided to invoke the "three strikes" law based on his two prior alleged drug crimes.
It's something the prosecution didn't have to do, said Mary Price, general counsel for Washington, D.C.-based Families Against Mandatory Minimums.
"This is one of those cases where the prosecution exercised some discretion," she said. "Admittedly, this looks like a large amount of drugs right now ... but they're jumping this case from 10 years to life in prison based on two priors that are 15 years old. That seems profoundly unjust to me."
She said Garner could hijack a plane, kidnap someone or shoot an innocent person in a marijuana transaction, and he wouldn't be facing this much time.
Asked to explain why Garner's case was charged the way it was, Jim Cross, a spokesman for Melgren, issued this statement:
"Congress has passed laws that make selling drugs a serious crime and enhance the penalties as high as life imprisonment for repeat offenders. As prosecutors, we respect that," Cross said. "No one is glad to see Theogen Garner or anyone else go to jail for life. But Theogen Garner made the choices that put him where he is today, not Congress and not federal prosecutors."
KU police stopped Garner's pickup truck about 1:12 a.m. July 21, 2005, near 15th and Iowa Streets after seeing it weaving within its lane and driving at nearly half the speed limit.
The officer saw Garner's eyes were bloodshot and his hands were shaking, and a record check showed Garner was on parole. When another officer arrived and spotted what appeared to be a marijuana cigar behind Garner's ear, he admitted it was marijuana.
Police eventually found 82 grams of crack cocaine in the truck and 13 grams in his pocket. Garner told officers he had bought 3.25 ounces of crack cocaine in Lawrence and planned to sell it and double his money.
Prosecutors say police also found a blackjack and two knives in a plastic bag where much of the cocaine was found.
A Kansas Bureau of Investigation fingerprint examiner Tuesday testified that the fingerprints from Garner's 1988 and 1991 arrests matched his 2005 fingerprints. But during the hearing prosecutors said they mistakenly pulled an arrest card for Garner from a different 1991 arrest for a weapons violation, and Murguia gave them more time to produce the correct prints.
Garner's attorney, Jim George of Lawrence, declined comment on the case, as did Assistant U.S. Atty. Scott Rask and assistant Douglas County Dist. Atty. Brandon Jones, who is assigned to the case as a special Assistant U.S. Attorney.