Court Sustains Barry Drug Conviction but Orders Resentencing

The U.S. Court of Appeals on Friday ordered the resentencing of former District of Columbia Mayor Marion Barry for cocaine possession because the trial judge failed to follow guidelines in giving him a six-month prison term.

The decision sustains Barry’s drug conviction of Aug. 10, 1990, but leaves him without a sentence until U.S. District Judge Thomas Penfield Jackson acts again.

U.S. Atty. Jay Stephens, who prosecuted Barry, said it is likely that the former mayor will be behind bars by the end of the year.

“This decision provides ample support for the trial judge to reimpose the same six-month sentence,” he said. “Today’s decision . . . firmly and squarely confirms Mr. Barry’s guilt of illegal cocaine possession.”

However, Barry said he was relieved. “I’m pleased and encouraged by this ruling. Obviously, the ruling does not end the long personal, political and legal ordeal for me, my family, friends and this community. But it does afford the judicial system an opportunity to . . . take a fresh look and hopefully make a just decision in this case.”

Barry’s lawyer, R. Kenneth Mundy, saw the sentence reversal as a victory. When asked whether Barry might go to jail, he said, “Anything is possible.”

Stephens predicted that Jackson will announce his findings within 90 days. Barry has been free since the two-month trial at which an FBI videotape showed him smoking crack cocaine during a sting operation at a hotel. He chose not to seek reelection last fall to a fourth term.

He has admitted to alcoholism and drug abuse and has been in a recovery program.

In issuing its order, the three-judge panel said, “We remand for resentencing because the district court failed to specify the applicable (sentencing) guidelines range.”

Since 1988, the guidelines that cover sentencing require that federal judges rate defendants’ crimes at various levels of severity.

Barry contended that the judge “enhanced” the drug possession sentence by two levels on the ground that he obstructed justice.

The appeals court said it did not believe that to be true. But it said it was ordering the resentencing because Jackson failed to explain how he was applying the sentencing guidelines.