A federal judge won't send Denver mushroom dealer Kole Milner to prison, instead sentencing the 29-year-old to three years of probation and a $5,500 fine.
"I don’t think putting this guy in prison for six months is going to accomplish much in terms of deterrence, or that it will benefit the community in terms of safety, or that it will provide any kind of benefit for the defendant," Judge R. Brooke Jackson of the U.S. District Court of Colorado said at the February 1 sentencing hearing for Milner. "I don’t see this guy being in prison."
Federal prosecutors had asked that Milner, who pleaded guilty in September 2020 to one count of possession with intent to distribute psilocybin, the active ingredient in psychedelic mushrooms, be sentenced to six months in prison.
In arguing for the imposition of a prison sentence, Conor Flanigan, who prosecuted the case for the U.S. Attorney's Office for the District of Colorado, noted that Milner "bragged" about his mushroom dealing to local and national media outlets.
In fact, Milner's interviews with reporters and the articles that resulted, in outlets such as Westword and the Denver Post, created a trail of breadcrumbs for Drug Enforcement Administration agents, who were able to identify Milner through the pieces. In September 2019, DEA agents raided Milner's south Denver apartment and walked out with 906 live psychedelic mushrooms and 291.6 grams of dried psychedelic mushrooms.
The raid took place four months after a slim majority of Denver voters approved decriminalizing the personal possession, use and growth of psychedelic mushrooms. The ballot measure did not decriminalize dealing mushrooms, nor did it bind federal law enforcement authorities in any way.
Milner was something of a small-time dealer, with around twenty clients. Still, Flanigan argued that a prison sentence would send a message that "simply because [mushrooms] are decriminalized in Denver or simply because you may feel they have benefits, you can’t engage in this conduct."
But Judge Jackson ended up granting Milner's request that he be sentenced to probation, citing Milner's lack of criminal history and the fourteen letters the judge had received from various friends and family members testifying to Milner's good character. Additionally, since his arrest, Milner has moved in with his family in Kansas City and has gotten involved in the car business with his father, Jackson said.
Even with probation, though, Milner will now have a felony on his record that "will never go away," Jackson noted.
Milner admitted during the sentencing hearing that he had been "extremely naive" to accept all the media interviews and to start growing and selling mushrooms.
"I was just dumb about it. I completely threw myself under the bus. My ego had betrayed me during that time. I didn’t see the consequences that I’m in now. My head was in the clouds. I shouldn’t have done any of it," Milner said. "I never want to be in this position again, and I know I can live the rest of my life following the law."
"Mr. Milner, stay out of trouble, sir," Jackson advised after sentencing.
"Thank you, your honor. I will," Milner responded.
The federal government views mushrooms as a Schedule I substance, which the feds categorize as a substance with "no currently accepted medical use and a high potential for abuse." Mushroom advocates have long publicized the mental health and spiritual benefits of mushrooms, and tend to find this categorization of psychedelic mushrooms to be comically inaccurate.
At the sentencing hearing, Jackson noted that the crime to which Milner pleaded guilty "somewhat incredibly" had a sentencing range of up to twenty years in prison and $1 million in fines.
"It goes to show that sometimes these statutory ranges are way out of touch with the reality of a particular case," the judge said.
In response to the sentencing, U.S. Attorney Jason Dunn offered this: “While we are disappointed that the sentence did not include prison time, we are pleased that his drug operation is shut down, that he will now have a federal felony conviction on his record, and perhaps most importantly, that the public sees we take drug trafficking of any kind seriously and will prosecute such cases fully.”
Like the feds, Denver law enforcement has continued to go after mushroom dealers since decriminalization took effect in May 2019. In one case, a man busted after dealing mushrooms to an undercover Denver police officer ended up pleading guilty to one felony charge. The office of District Attorney Beth McCann and the man, who previously spoke to Westword on condition of anonymity, came to an agreement that the felony charge would get wiped off his record as long as he avoided trouble during eighteen months of probation. The dealer in that case also avoided prison time.
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