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Friday, December 8, 2023 | Back issues
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Old Llama Crime Won’t Affect Drug Sentencing

CHICAGO (CN) - A misdemeanor animal-abandonment conviction over an escaped llama should not trigger a 10-year mandatory minimum prison sentence for a later pot conviction, the 7th Circuit ruled.

When Mark Burge's llama escaped from its pen and wandered off in 2007, Illinois prosecutors charged him with misdemeanor abandonment under the state's animal cruelty statute.

"Rather than hire a lawyer to defend against the charge, Burge chose to plead guilty and pay a $525 fine, likely expecting to put the matter behind him," Judge David Hamilton wrote for a three-judge appellate panel.

"Three years later, though, 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."

Burge, who had previously been convicted of possessing firearms without proper permit and possessing less than 30 grams of marijuana, earned a second criminal history point for the llama incident.

Federal guidelines require a 10-year minimum sentence for possession of 100 or more marijuana plants by a defendant with a prior felony conviction. If not for the llama, Burge would have qualified for a "safety valve" under federal law, facing a sentencing range that maxed out at two years.

Noting that U.S. District Judge Richard Mills ordered the 10-year sentence "reluctantly," the 7th Circuit reversed Wednesday.

Burge had argued that his llama conviction should not count because he did not have an attorney and was actually innocent of the crime.

Though the federal appeals court rejected Burge's attempt to relitigate his conviction during a subsequent sentencing process, it said he had "a much better argument."

"Subsection 4A1.2(c) of the guidelines directs courts not to count prior offenses as criminal history points if they are 'similar to' certain listed crimes that are themselves never counted," Hamilton wrote.

Burge's llama abandonment conviction bears the most similarity to state fish and game violations, which are not counted toward criminal history calculations, the court found.

"The calculations are fact-driven and formulaic, but the definitions regarding the counting of certain misdemeanor offenses are open-ended enough to require some judgment in their application," Hamilton wrote.

If Burge had poisoned his llama, the conduct would not have counted toward his criminal history under the guidelines, the decision states.

"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," Hamilton concluded (parentheses in original).

He said a two-year sentence would suffice.

"We recognize that the Illinois animal cruelty statute includes provisions that could reach truly disturbing conduct, including merciless beating and torture of animals," Hamilton wrote. "Our reasoning today does not address such crimes."

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