Gang membership and criminal sentencing

gavel2 1 The Trump Administration just recently announced that it was making a priority of prosecuting members of gangs that commit criminal acts, and in particular members of the gang known as MS-13. Maryland’s highest Court just last week addressed whether a sentencing Judge can consider evidence of the defendant’s membership in a gang, even where the underlying crime was not gang related. The case is called Oscar Cruz-Quintanilla v. State of Maryland.
Chief Judge Barbera wrote in the opinion that the defendant was indicted for various crimes related to a home robbery. A jury convicted him of reckless endangerment, wearing/carrying/transporting a handgun, and conspiracy to commit robbery.At sentencing, the prosecution offered for the first time evidence that the defendant had been a member of MS-13. The State called a police Sergeant who testified about and showed pictures of various tattoos on the defendant that showed he belonged to that gang.
The officer said the defendant was a documented gang member since at least 2004. He further testified that members of that gang have to demonstrate loyalty and a willingness to commit violent criminal acts, consistent with its motto translated as “kill, rape, control.”

The trial judge considered that evidence along with the defendant’s past convictions including burglary, in sentencing him to 3 years on the weapons charges and a consecutive 20 year sentence with all but 9 years suspended on the conspiracy conviction.
The defendant asserted on appeal that considering his gang membership, when the underlying crime was not gang related, violated his First Amendment right of freedom of association. The Court noted, as had the intermediate appellate Court, that a sentencing judge has virtually unlimited discretion in fashioning a sentence, so long as it was not unconstitu- tional or cruel and unusual punishment, did not violate statutory limits and was not based on ill will or prejudice.
The evidence here went beyond the abstract beliefs of the organization to which defendant belonged.
The Court of Appeals held that although the defendant had not been proven to have committed gang related violence, on the evidence membership in MS-13 meant that all gang members must be willing to commit such violent acts, and the trial judge could properly consider such membership in fashioning an appropriate sentence that fit the perpetrator as well as the crime.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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