EAST ST. LOUIS — The weight of two nickels was the difference between a five-year and 10-year prison sentence for the man accused of selling heroin to former St. Clair County Circuit Judge Michael Cook.
Sean D. McGilvery, 34, was sentenced to 10 years in federal prison in a hearing before U.S. District Judge Michael Reagan on Thursday. McGilvery, a longtime friend and former legal client of Cook's, pleaded guilty to conspiracy to distribute heroin in October.
McGilvery was found to be responsible for the distribution of 1.01 kilograms of heroin, an amount that made his mandatory minimum sentence 10 years. If it had been less than 1 kilogram, he would have been eligible for a five-year prison sentence.
"That's the difference in weight of about two nickels," Reagan said during the sentencing.
In federal cases, the facts triggering a mandatory minimum sentence must be proven to a jury or admitted by a defendant, said Frank O. Bowman III, a professor at the University of Missouri School of Law and a former member of the U.S. Sentencing Commission.
If the prosecutor, the defense attorney and the probation officer who prepares the pre-sentence investigation for the judge, agree on the "relevant conduct" or the amount of drugs sold by the defendant, then the defendant can admit that and the judge can sentence based on that, Bowman said.
But any one of the parties may object, Bowman said. If that happens, a jury must determine whether the evidence exists to trigger the mandatory minimum sentence.
McGilvery told federal agents that he sold heroin to Cook nearly every day, according to court records. Deborah Perkins, McGilvery's co-conspirator, told agents in 2008 that she and McGilvery began going to Chicago once a week to buy heroin. She told agents she made more than 20 trips there with McGilvery, buying up to 25 grams per trip. She described her relationship with McGilvery as "business partners" but told agents the two parted ways between September 2008 and April 2009.
McGilvery made two trips with Perkins to Chicago in 2009, according to Perkins. McGilvery and Perkins pooled their money, buying between 25 and 100 grams of heroin on these trips. McGilvery would give her between $2,500 and $5,000 every two weeks to buy heroin, according to Perkins. McGilvery was one of Perkins' and Oliver's primary distributors.
A judge can also take into account other factors when considering possible sentences.
"The judge is at liberty to take into account other facts to get the larger picture," Bowman said.
During McGilvery's sentence, Reagan outlined the sentences of McGilvery's co-conspirators, Perkins, who received a 27-year prison sentence, and her son, Douglas Oliver, who received a 30-year prison sentence.
Both sentences, Reagan noted, were on the low end of the sentencing guidelines. Reagan also stated Oliver's and Perkins' distribution of heroin resulted in the deaths of two women, Jessica Williams and Jennifer Herling.
Reagan asked Assistant U.S. Attorney Jim Porter whether the investigation revealed that McGilvery's distribution resulted in any deaths.
"There is no evidence that would enable me to conclude that there was any death connected with the distribution of a controlled substance by the defendant," Porter answered.
Rodney Holmes, McGilvery's lawyer, told the judge that McGilvery became addicted to OxyContin, a prescription pain killer, after a back injury and became addicted. Holmes told the judge that this happened in a number of high profile cases, such as Rush Limbaugh.
"None of them went on to sell heroin," Reagan responded.
"They had the resources to get treatment," Holmes said.
Holmes told the court that McGilvery only sold to friends, including Cook, so he could get enough heroin to feed his own addiction.
Holmes continued to say that though Cook "came from one of the richest families in St. Clair County," McGilvery never extorted the former judge for money or tried to rob him, evidencing his assertion that the two men were friends with a mutual addiction.
"I want to apologize for my conduct," McGilvery told Reagan. "Being an addict, I didn't realize the harm I was inflicting on the community, my family and myself."
Reagan noted that he received 15 letters of support from McGilvery's friends and family. About 20 people attended the hearing in support of McGilvery, including his mother Linda Gibson. She declined to comment.
"Heroin today is a much different than the heroin of a five years ago. It is much more powerful, much more toxic," Reagan said. "The poison you were peddling has the potential to cause death."
At the time of McGilvery's arrest on May 22, federal agents seized five guns and $10,000 in cash. Reagan noted that McGilvery had no visible means of income.
Cook was arrested outside the home on North 38th Street where McGilvery was staying on May 22. Cook was charged and pleaded guilty in November to heroin possession and weapons charges. Cook was released from custody after his arrest and sought treatment. He resigned from the bench and surrendered his law license.
As part of a plea agreement, Cook agreed to an 18-month sentence, but U.S. District Judge Joe Billy McDade earlier this month asked for an additional pre-sentence investigation. McDade said there were reasons for a stiffer sentence, including damage to the public's confidence in the judiciary.
Cook's sentencing is set for Feb. 26.
McGilvery must serve 85 percent of his sentence before he's eligible for release. Holmes also requested McGilvery be considered for a drug treatment program in the federal Bureau of Prisons.
Reagan said he would request the treatment, but McGilvery's participation in the program was a prison bureau decision.
"You have to earn your way into those programs, then earn your way out," Reagan said.
Contact reporter Beth Hundsdorfer at email@example.com or 618-239-2570.