UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Denny L. GOFF, Defendant-Appellee, Cross-Appellant.
Nos. 91-4031, 91-4097
United States Court of Appeals, Sixth Circuit.
Argued Nov. 12, 1992. Decided Sept. 20, 1993.
6 F.3d 363
Additionally,
In addition to its various remedies under the Georgia Act, plaintiff may also pursue common law claims for fraud. See Thompson v. Huckabee Auto Co., 190 Ga.App. 540, 379 S.E.2d 411, 413 (1989). It is not sufficient for plaintiff to simply assert that Michigan law should apply “merely because a different result would be reached under” Georgia law. Tele-Save, 814 F.2d at 1123. See also Moses, 929 F.2d at 1139. Unlike the fundamental policy of Illinois against indemnification agreements for injuries to workers in the Chrysler case, or the fundamental policy of Maine requiring good cause for the termination of a distribution contract in Solman Distributors, plaintiff has failed to demonstrate how application of Georgia law would violate a specific fundamental policy of Michigan. The choice of law provision in the parties’ agreement provides that Georgia law is to be applied. The application of Georgia law in this context would not be violative of a public policy of Michigan and therefore should be enforced. We therefore will enforce the agreement of the parties embodied in the choice of law provision.
Finally, because the choice of law provision in the contract is valid and enforceable, we must determine its scope. Plaintiff contends that Georgia law should only govern contract claims, while defendant argues that all claims arising out of the parties franchise dealings should be governed under Georgia law. This court faced a similar question in Moses where the choice of law provision read: “This Franchise and License Agreement and the construction thereof shall be governed by the laws of the state of Michigan.” 929 F.2d at 1139. We held that the clause clearly referred to more than just the construction of the agreement and extended to plaintiff‘s claims of fraud and misrepresentation. In the present case, the contract provides “[t]his Agreement was made and entered into in the State [of] Georgia and all rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of Georgia.” As in Moses, we find that the choice of law provision is sufficiently broad so as to cover plaintiff‘s claims of fraud and misrepresentation. Had these claims only been tangentially related to the franchise relationship, we would be much more inclined to find the choice of law provision not applicable. The claims of fraud and misrepresentation that plaintiff has asserted here are directly related to the franchise agreement.
The order of the district court is AFFIRMED.
David A. Sierleja, Office of the U.S. Atty. (argued and briefed), Cleveland, OH, for plaintiff-appellant, cross-appellee.
Mary Jane Stephens (argued and briefed), Youngstown, OH, Richard F. Schwartz, Warren, OH, for defendant-appellee, cross-appellant in No. 91-4031.
Mary Jane Stephens (argued and briefed), Sam Amendolora, Youngstown, OH, Richard F. Schwartz, Warren, OH, for defendant-appellee, cross-appellant in No. 91-4097.
Denny L. Goff (briefed), Springfield, MO.
Before: JONES and RYAN, Circuit Judges; and PECK, Senior Circuit Judge.*
The government appeals Denny Goff‘s sentence after a conviction for drug trafficking and illegal possession of firearms. Goff cross-appeals the district court‘s denial of his motion to suppress evidence. We shall affirm Goff‘s conviction, but vacate his sentence.
I.
Goff, along with a codefendant, was charged in a thirteen-count indictment with six counts of distributing cocaine and lysergic acid diethylamide (LSD), in violation of
The charges were brought after a lengthy undercover investigation of drug dealing in Trumbull County, Ohio. The indictment was based on information provided by confidential informants and undercover Trumbull County police officers who had made controlled purchases of nearly 400 “hits” of LSD, three quantities of cocaine, and a .25 caliber semi-automatic pistol at Goff‘s residence.
Based on an affidavit drafted by Detective Paul Monroe of the Trumbull County Drug Task Force, an Ohio magistrate issued a search warrant for Goff‘s home. The search produced additional evidence against Goff and his girlfriend, including drugs, cash, drug transaction records, and numerous loaded and unloaded firearms. Goff was later arrested.
In the district court, Goff filed a motion to suppress all evidence seized as a result of the warrant-authorized search. At the suppression hearing, Goff argued that the warrant had issued without a showing of probable cause. He challenged the supporting affidavit filed by Detective Monroe, charging there was no showing that the confidential informant‘s information was reliable. Goff also contended that Detective Monroe lacked sufficient experience to make a probable cause determination. Finally, Goff pointed out that the supporting affidavit incorrectly described his criminal record. At the suppression hearing, Detective Monroe conceded that his affidavit misstated Goff‘s criminal record, but maintained that the mistake was inadvertent. The district court denied Goff‘s suppression motion. At the conclusion of a jury trial, Goff was found guilty on all but one of the counts with which he was charged.
At the sentencing hearing, Goff was determined to be subject to a statutory minimum sentence of ten years’ imprisonment, under
Rejecting the government‘s argument, the district court concluded that Goff did suffer from an extraordinary physical impairment under
II.
A.
Goff argues in this appeal that the district court erred by denying his suppression motion. He contends that the Trumbull County Task Force‘s confidential informant was unreliable, that Detective Monroe was inexperienced, and that these alleged defects—coupled with the misstatement of Goff‘s criminal record in the supporting affidavit—caused the warrant to be issued without a showing of probable cause. Goff argues that the district court should have granted his motion to suppress the evidence seized from the search of his home. The government, in contrast, maintains that the Ohio issuing magistrate was presented with ample evidence from which probable cause for the issuance of the warrant could be found.
B.
We review a district court‘s decision on a motion to suppress evidence under two standards. First, the district court‘s findings of fact are upheld unless clearly erroneous. United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993). The district
A review of the record in this case convinces us that both the issuing magistrate and district court were correct in finding probable cause to support issuance of the search warrant. Acknowledging the factual inaccuracies in the affidavit, the evidence presented to the issuing magistrate of Goff‘s drug and firearms dealing was overwhelming. Numerous drug transactions were conducted by Goff, both with confidential informants monitored by law enforcement officials, and with undercover police officers themselves. A firearms purchase was likewise consummated. Several of these transactions were recorded using “body wires.” Indeed, Detective Monroe‘s own involvement in the transactions, standing alone, would be enough for a finding of probable cause for the issuance of the warrant. The misstatement of Goff‘s criminal record appears to have been inadvertent and was, in any case, immaterial. We agree with the district judge‘s conclusion that he had “rarely seen an affidavit that more oozes with probable cause than this one.”
We turn now to the sentencing issue raised by the government‘s appeal.
III.
A.
The government contends that the district court erred in refusing to sentence Goff to the statutory minimum of ten years imprisonment, but instead, applying sentencing guidelines
B.
As a repeat offender convicted of possessing and distributing a significant amount of illegal drugs, Goff is subject to
... such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment....
(Emphasis added.)
Against the backdrop of this statutorily mandated minimum term of ten years imprisonment are various sentencing guidelines provisions. One of these,
Physical condition is not ordinarily relevant in determining whether a sentence should be outside the guidelines or where within the guidelines a sentence should fall. However, an extraordinary physical impairment may be a reason to impose a sentence other than imprisonment.
The district court agreed with Goff‘s contention that
While the district court‘s attempt to fashion an equitable sentence for a disabled man is understandable, it was without authority to do so either under
First, Goff is subject to a statutorily mandated minimum term of ten years imprisonment for his offenses. A statutorily mandated minimum sentence cannot be reduced by a guidelines policy statement. See Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). The only other federal court to have addressed the precise issue raised by Goff has concluded, as we do, that in situations like the one presented here “a term of imprisonment less than [the statutory minimum] is not permissible.” United States v. Velasquez, 762 F.Supp. 39, 40 (E.D.N.Y.1991). As the guidelines themselves recognize, where a statutory mandatory minimum sentence and the guidelines conflict, the guidelines must yield, and the statu-
Second, even if one assumes that the guidelines’ provisions are applicable, the district court‘s sentencing approach was still impermissible. The guidelines plainly provide that home detention, established in
IV.
For these reasons, the district court‘s denial of Goff‘s motion to suppress evidence is AFFIRMED. The district court‘s sentence, however, is VACATED and this case is REMANDED for resentencing consistent with this opinion.
NATHANIEL R. JONES, Circuit Judge, concurring.
I concur in the result reached in this case. The law leaves me no choice. In doing so, I am nonetheless constrained to note that this case is but the latest instance of mandatory minimum sentencing requirements intruding upon an Article III judge‘s ability to do justice. Common sense is removed from the sentencing process when a judge is barred from fashioning a punishment that fits the unique circumstances presented by a defendant in a particular case.
U.S. District Judge Vincent Broderick of the Southern District of New York, the retiring chairman of the Committee on Criminal Law of the Judicial Conference of the United States, voiced the frustration and outrage of the collective Bench when he recently testified before a House Judiciary Subcommittee. He called upon Congress “to repeal all current mandatory minimum sentencing provisions.”
Judge Broderick, a former police commissioner of the City of New York and former federal prosecutor, declared that the “mandatory minimums are the major obstacle to the development of a fair, rational, honest and proportional federal criminal justice sentencing system.” He added that “Congress has made it in many cases impossible for the judge, today, fairly and honestly to perform his or her role.”
I submit that by concurring in this court‘s majority opinion, which the law requires me to do, I am joining in a result that is neither rational nor honest. In doing so, I am, as are all judges, compelled to close my eyes and my mind to a reality of the sentencing decision that recognizes, as Judge Broderick reminded the Congressional committee: that “the criminal as an individual human being stands in the well of the court, and there are a myriad of different considerations which should go into the judge‘s sentencing decision.”
It may yet dawn on makers of public policy, that an unacceptable social price is being paid for this folly.