Judge indicates he will accept 5 year sentence proposal for Fogarty; Reagan notes new 'but for' precedent

U.S. District Judge Michael Reagan has indicated that former St. Clair County probation officer James Fogarty will receive a recommended 60-month prison sentence on cocaine distribution and weapons charges at a hearing next week.

Fogarty pleaded guilty in November to supplying cocaine to the late St. Clair County associate judge Joe Christ on March 8 – two days before Christ died of cocaine intoxification at a Pike County hunting lodge while in the company of former circuit judge Michael Cook. The lodge is owned by Bruce Cook, father of Michael Cook.

Fogarty’s guilty plea agreement reached in November calls for five years on charges that carried a range of 57 to 71 months in prison, without extra years that federal prosecutors could have recommended if they had proved his crime resulted in death.

Reagan wrote in a Feb. 14 order that Fogarty’s proposed sentence is not “disparate” compared to defendants in related cases – drug dealers Sean McGilvery and Augustus Stacker – who received sentences at the low end of the applicable guideline range.

McGilvery was sentenced to 10 years in prison Jan. 23 over his role in a drug ring that involved Cook as a drug buyer.

Stacker, who supplied cocaine to Fogarty, was sentenced to eight months in prison on Jan. 31

Cook, who according to court documents was an almost daily buyer of heroin from McGilvery, is set to be sentenced Feb. 26 before U.S. District Judge Joe Billy McDade.

Reagan wrote that he will impose a “newly minted” question at Fogarty’s sentencing on Feb. 27 that will guide him in accepting or rejecting the proposed sentence.

He indicated that under a Jan. 27 U.S. Supreme Court decision (Burrage v. United States), a defendant such as Fogarty cannot be liable for a penalty enhancement unless the use of a distributed drug is a “but for” cause of death or injury.

Reagan wrote that he will ask prosecutors, “Is there credible evidence that ‘but for’ the drug distribution by defendant Fogarty there would not have been the death of any person, including but not limited to Judge Joseph Christ?”

“An affirmative answer to this newly minted question will result in a rejection of the plea agreement because the agreed upon sentence would be insufficient to meet the goals and purposes” of the guiding statute,” he wrote.

Reagan indicated that prior to the Burrage decision he had intended on asking: “Is there credible evidence that any drug distribution by the defendant resulted in the death of any person, including but not limited to Judge Joseph Christ.”

He wrote that “absent an unusual change of course in this case before sentencing or evidence of ‘but for’ causation in the death of anyone to whom the defendant provided drugs,” the government’s sentencing proposal is not “inappropriate.”

“Although a sentence of 60 months may not be the sentence the undersigned would impose absent the binding plea agreement, is it reasonable considering the totality of the circumstances and is not ‘inappropriate,’” he wrote.