Judge Rejects 10-Year Minimum Term for Drug Couriers : Courts: He says it is unconstitutional to deny leniency available to higher-level cocaine traffickers.

In a highly unusual move, a federal district court judge in Los Angeles has sentenced two Mexican women to six years in prison on cocaine charges, rejecting as unconstitutional a law calling for a mandatory minimum 10-year term.

U.S. District Judge Terry J. Hatter said it was unfair that the two women, low-level drug couriers known as “mules,” were unable to get their sentences reduced by assisting the government, whereas higher-level traffickers could.

“My position with regard to this particular case is that the government abused its discretion by not making a motion requesting a departure beneath the mandatory minimum sentence,” Hatter said in an interview Friday.

Under a federal law enacted in 1988, trafficking more than 11 pounds of cocaine carries a 10-year minimum sentence without the possibility of parole.

Patricia Delgado and Rosario Gonzales of Guadalajara, both of whom have no previous criminal record, were arrested two years ago at Los Angeles International Airport carrying 15.4 pounds of cocaine. They recently pleaded guilty and were sentenced Wednesday.

Under the law, the only way a judge can issue a sentence beneath the mandatory minimum is if a prosecutor requests a more lenient term because the defendant provided “substantial assistance” in the investigation of another person.

Judge Hatter said in an interview, however, that low-level workers in a drug enterprise normally don’t know enough to provide what is considered “substantial evidence” and thus are ineligible for leniency.

“Usually . . . the people in the middle and upper ranges, the ones who should spend the most time in prison, get the breaks,” Hatter said.

The judge said he had delayed acting on several government requests for reduced sentences of middle- and upper-level narcotics traffickers “because I am not sure justice is really served by my letting someone go below the mandatory minimum because that person has used his connections to the drug world” to bargain with the government.

He said the factors under consideration for lowering a sentence violated the Constitution’s due process and equal protection provisions.

In this case, Hatter asked federal prosecutors to review their dealings with the defendants with an eye toward proposing a reduced sentence.

But Assistant U.S. Atty. John L. Carlton told Hatter that the initial information provided by Delgado, 33, and Gonzalez, 26, was untruthful and information they provided later was useless. He said that he saw no reason to ask for a reduced sentence.

Nonetheless, Hatter said he felt 10 years was just too much under the circumstances. Hatter, an appointee of President Jimmy Carter and a former federal prosecutor himself, is one of numerous federal judges who have frequently been critical of recently enacted sentencing laws that have restricted the authority and flexibility of judges.

Defense lawyer Don Randolph, who represented Gonzalez, said he thought Hatter’s action “reflects a growing concern among district court judges that their ability to use their skills and discretion in sentencing people fairly has been undermined in recent years.”

Thus far, federal appeals courts have upheld the right of Congress to enact mandatory minimum sentencing laws.

In arguing for a sentence beneath the mandatory minimum, defense lawyers relied on a recent federal appeals court decision which said a cooperating defendant should get a reduced sentence under certain circumstances, regardless of the government’s recommendations.

Carlton said the level of assistance provided by Delgado and Gonzalez was insufficient to qualify for leniency, under the standard described in the appeals court decision.

Carlton said he did not know yet if the government would appeal Hatter’s decision. He said the ruling automatically would be sent to the Justice Department’s appeals unit in Washington for review and that a decision would have to be made within 30 days.