MEMPHIS — A federal judge is challenging the federal prosecutor's office here, saying the government is bringing harsher charges against African-American defendants than white defendants for similar crimes.

U.S. District Judge John T. Fowlkes Jr. raised questions of racial discrimination in at least three different cases in recent weeks. Representatives of the prosecutor's office say they do not discriminate based on race.

One of the cases that drew a complaint from Fowlkes involves two drug dealers, one white, one black. Last year, these two men traveled together to a Wendy's parking lot to sell a man 100 ecstasy pills for $800, according to records. The white man reportedly got into the buyer's vehicle to sell the drugs while the black man stayed in a vehicle with a gun between his legs.

But the buyer really was an undercover Memphis police officer. He gave a signal, and other officers arrested the two dealers and a woman traveling with them.

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All three later entered guilty pleas.

The black man, 38-year-old Mario Silas, faced drug charges and other counts, including a gun crime that brings an automatic five-year sentence. Because of prior felony convictions, the automatic five-year gun sentence and another federal gun case, Silas got a long prison term: 15 years, which Fowlkes imposed Nov. 28.

The black woman in the vehicle, Tiffany Tekle, faced a drug case, but not the five-year-minimum gun charge. On Dec. 7, Fowlkes sentenced her to 20 months in prison.

Like Silas, she had a prior record.

The white man, 34-year-old Jared Weatherly, faced a drug case but no gun charge. Because of his limited criminal record, the prosecution asked for a one-year sentence.

Fowlkes asked why prosecutors didn't charge the white man with a gun crime, too, since he had worked with the armed black man to complete the drug deal.

"This is another situation where a white defendant appears to have been treated differently than African-Americans, and I'm concerned about how we're proceeding in this case," the judge said during a Nov. 19 hearing, according to a transcript.

The prosecutor handling the case, J. William Crow, said he didn't think he could prove the five-year-minimum gun charge against the other people in the car.

"I apologize to the court if you've ever thought that I or anyone in our office is taking race into account in what we charge because that's just not the truth," he said, according to the transcript.

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Through an assistant, the judge declined an interview request.

The federal prosecutor's office in Memphis also didn't make anyone available for an interview but released a statement from U.S. Attorney D. Michael Dunavant.

“Every case this office brings is unique," he wrote. "We make charging decisions based on the rule of law, the facts of the case and department policy.

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"We make sentencing recommendations to the court based upon the federal sentencing guidelines, which take into account, among other things, each defendant’s past history.

"It is ultimately up to the court to determine the appropriate sentence for each individual defendant. Any suggestion that race plays a role in these decisions – either overtly or implicitly – is wrong.”

Unconscious bias

Advocates have long argued that the American criminal justice system treats black people more harshly than white people, in part because of unconscious bias.

Between 2012 and 2016, black men received federal sentences on average 19 percent longer than white men who committed similar crimes, the U.S. Sentencing Commission concluded

That's roughly the difference between four years and five years.

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Violence in an offender’s criminal history didn't appear to account for the difference, according to the commission. Rather, a big difference was because of federal judges' discretion.

"There is a tendency in our society to see African-Americans as more threatening than whites," said Nazgol Ghandnoosh, a senior research analyst with The Sentencing Project in Washington.

Unless an organization works to guard against implicit bias, then the bias likely will affect sentencing decisions, she said. The Sentencing Project also points to research of federal prosecutors disproportionately using mandatory minimum sentencing laws against black defendants.

At the national level, both Democrats and Republicans – including President Donald Trump – have backed a bill that among other things loosens some federal mandatory minimum sentencing laws.

The bill passed both houses this week with bipartisan support and is headed to Trump for his signature.

Fowlkes is one of a small number of black federal judges; out of 1,333 federal judges today, about 138, or 10 percent, are African-American,according to the Federal Judicial Center, a government research agency.

Fowlkes is a former state and federal prosecutor and also had served as a Shelby County public defender and state Criminal Court judge. President Barack Obama nominated him to a federal judgeship, and the U.S. Senate confirmed him in 2012.

His varied background gives him credibility, said Arthur Quinn, a longtime defense lawyer.

"If he's recognized a problem, it's certainly worth looking into," Quinn said.

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As a defense lawyer, Quinn said he frequently talks with federal prosecutors, and they don't appear to base decisions on race.

"That does not mean policies and practices they have could not have a discriminatory impact," he said.

For instance, the prosecutor's office focuses most of its efforts on drug and gun crimes. In Memphis, those cases are far more likely to involve black defendants than white-collar federal crimes such as Medicare fraud, Quinn said.

During the November sentencing hearing for Weatherly, defense lawyer Lee Gerald said the other man, Silas, had the gun, not his client, and that it ended up being thrown into the back seat with the woman, Tekle.

Officers found a .38-caliber revolver in the back seat. A .32-caliber revolver was found in a backpack, according to a police affidavit. Prosecutors later accused Silas of owning that gun, too.

Weatherly's lawyer and family said Weatherly is a longtime drug addict who has mental-health problems. The lawyer asked the judge to let Weatherly serve at least some of his sentence in a long-term drug treatment program.

But the prosecutor cited an incident in which Weatherly tried to cheat on a court-mandated drug test using a pouch full of urine.

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"That shows an attempt to deceive," the prosecutor said. He asked for 12 months.

After raising the concern about racial discrimination in November, the judge reset Weatherly's hearing to Tuesday. He rejected a drug treatment sentence, saying Weatherly had failed prior drug treatment programs and sentenced Weatherly to 18 months in prison – the top end of the federal guidelines for someone with his low-level criminal history.

Upon release, Weatherly must take part in drug treatment and mental health treatment.

Other cases of discrimination?

During the November hearing for Weatherly, the judge said he had raised similar questions of racial discrimination with a prosecutor in the past week or two.

Then later in November, the judge raised discrimination issues in the case of James Zanders, according to Zanders' lawyer.

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Zanders is a black man who was indicted in a cocaine case. He had a prior criminal record that led the government to classify him as career offender, said the lawyer, Stephen Sauer.

The career offender status boosted his probable sentence to at least 12½ years, his lawyer said. On Nov. 29, the lawyer asked Fowlkes for a reduced sentence of five to six years.

"And at that point, Judge Fowlkes basically said that he feels that he has seen evidence of racial bias against young African-American defendants and he wanted to have a conversation with the U.S. attorney's office about what he was seeing before he sentenced this man," Sauer said.

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The judge reset Zanders' hearing to Jan. 11.

Meanwhile, Silas, the black man who was sentenced to 15 years after the Wendy's drug deal, is appealing the judgment.

Follow Daniel Connolly on Twitter: @danielconnolly

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