UNITED STATES of America, Appellee, v. Derrick RICHARDSON, Defendant-Appellant.
No. 184, Docket 90-1272
United States Court of Appeals, Second Circuit.
Argued Sept. 18, 1990. Decided Jan. 4, 1991.
Buie also argues thаt there was probable cause to arrest Canady earlier than June, and that, even if there was not, the prosecutor should have waited to arrest him until Buie‘s trial was over, a mere two weeks. We cannot, however, second guess law enforcement‘s belief as to when probable cause first existed, so long as it is clear, as it is here, that probable cause did exist at the time of the arrest. Once probable cause exists, of course, law enforcement is legitimately empowered, but not required, to arrest the suspect. More importantly, “[p]rosecutors do not dеviate from ‘fundamental conceptions of justice’ when they defer seeking indictments until they have probable cause to believe an accused is guilty.” United States v. Lovasco, 431 U.S. 783, 790-91, 97 S.Ct. 2044, 2049-50, 52 L.Ed.2d 752 (1977). An investigative delay caused by a prosecutor‘s hesitancy to seek an indictment until he is persuaded he can successfully proseсute the suspect is reasonable and does not offend due process. Id. at 795, 97 S.Ct. at 2051. Thus, the timing of Canady‘s arrest is not sufficient to establish either bad faith or a violation of Buie‘s sixth amendment rights. See Valenzuela, 458 U.S. at 873, 102 S.Ct. at 3449 (deportation of alien witnesses alone not sufficient to find a violation).
Finally, even if Buie could show that the timing оf Canady‘s arrest was improper, there still would be no basis for reversal because such an error did not “infect” the fundamental fairness of his trial. See Id. at 872, 102 S.Ct. at 3449. At Buie‘s trial, three eyewitnesses identified him as one of the perpetrators; another witness testified that she saw Buie with the stolen walkie-talkies and hеard him joking about the robbery; Buie‘s defense was based on misidentification by the eyewitnesses and on an alibi provided by a woman who said he was with her the afternoon of the robbery, in an apartment which proved to be within a one-minute walk from the Model Cities office; and the substance of Canady‘s exculpatory evidence was presented through Officer Smith for the jury‘s consideration. This evidence overwhelmingly supports Buie‘s guilt and provides no reason for concluding that testimony by an alleged accomplice, reiterating that given by Officer Smith, would have affected the judgment of the jury. Sеe Id. at 874, 102 S.Ct. at 3450.
Affirmed.
Richard E. Signorelli, Asst. U.S. Atty., S.D.N.Y., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Daniel C. Richman, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for appellee.
Before OAKES, Chief Judge, MESKILL, Circuit Judge, and RESTANI,* Judge.
* Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by designation.
MESKILL, Circuit Judge:
This is an appeal from a judgment of sentencing entered by the United States District Court for the Southern District of New York, Conboy, J., committing defendant-appellant Derrick Richardson to 168 months in custody, as computed under the career offender provision of the United States Sentencing Guidelines (Guidelines). The issue on appeal is whether the district court erred in holding that it lacked the authority to depart downward from the Guidelines on the basis of the small amount of cocaine involved in Richardson‘s offense.
We dismiss the appeal.
BACKGROUND
Richardson was arrested on September 29, 1989 by a Unitеd States Park Police officer for the sale of one-half gram of cocaine, a felony. Richardson pleaded guilty to the charges of distributing cocaine in violation of
Under section 4B1.1 the sentence range for Richardson was 168-210 months. The district court refused Richardson‘s request for a downward departure based on the small amount of cocaine involved and the length оf time that had elapsed since the earlier felony convictions. Commenting on the small amount of time served by Richardson for his prior felony convictions and the small amount of cocaine involved in the instant offense, the court sentenced Richardson to 168 months, the lowest term
On remand, the district court resеntenced Richardson to 168 months. In doing so, the court again rejected downward departure based on the modest amount of cocaine involved. The court felt compelled by the relevant Guidelines provision to resist a downward departure and concluded that Richardson had not provided any valid or adequate basis for such a departure. On appeal, the issue is whether the district court erred in believing that the small amount of cocaine involved could not provide a basis for a downward departure from the Guidelines.
DISCUSSION
Section 4B1.1 is the career offender section of the Guidelines. It states, in pertinent part:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender‘s criminal history category in every case shall be Category VI.
United States Sentencing Commission, Guidelines Manual § 4B1.1 (Nov. 1989). Section 4B1.1 dramatically increases the base offense level for sentence computation and mandates use of a сriminal history category of VI. As a result, the career offender provision produces sentences far longer than those resulting from computation under the regular Guidelines provisions. This is in keeping with the congressional mandate that career offenders be sentenced at or near thе maximum sentence permitted under the statute.
Departure from the Guidelines is permitted when the court finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.”
There is no question about the applicability to Richardson of the career offender provision. The authority of the court to depart and the propriety of such a departure, however, are at issue. The district court, in resentencing Richardsоn, stated that “[u]nder the circumstances we feel we are constrained by the guidelines that control here to resist a downward departure in this case.” Richardson‘s contention, that the district court mistakenly believed it did not have the authority to depart based on quantity and that the Sentencing Commission did not intend such harsh treatment for street dealers, requires us to determine whether quantity was considered in the career offender regulation and, if so, whether it was adequately considered. See
Thе structure of section 4B1.1 is consistent with the legislative discussions advocating harsh treatment for all recidivists. The rule focuses on the recurrence of offenses rather than on the specifics of the most recent offense. As a result, section 4B1.1 does not expressly consider the quantity of a controlled substance involved in an offense. Section 4B1.1, however, does implicitly consider quantity. The career offender base offense level is derived from the statutory maximum penalty for the underlying offense; the statutory maximum sentence, in turn, is based on the quantity of drugs involved. The consideration оf controlled substance quantity, therefore, is inherent in every career offender sentence.
To determine whether quantity was “adequately considered” when section 4B1.1 was created so as to preclude using quantity as a basis for departure, the purpose of and need for departure must be examined. In drafting the Guidelines, the Sentencing Commission set out its goals in the following manner:
The Commission intends the sentencing courts to treat each guideline as carving out a “heartland,” a set of typical cases embodying the conduct that each guideline describes. When a court finds аn atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
United States Sentencing Commission, Guidelines Manual at 1.6 (Nov. 1989). The Sentencing Commission went on to set forth the criteria for departure, that is, when a court finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.”
The use of quantity as a basis for downward departure under the career offender provision is an issue of first impression in this Court. We must determine as a matter of law whether the quantity involved is a factor not adequately considered by the Sentencing Commission so as to warrant a downward departure. United States v. Barone, 913 F.2d 46, 50 (2d Cir.1990). An examination of the relevant statute, the Guidelines and the policy statements and official commentary of the Sentencing Commission,
Richardson also contends that the length of time that elapsed since his prior felony convictions also provides a basis for departure. We disagree. The Sentencing Commission sufficiently considered time when it determined that all felony convictions within the past fifteen years should be considered. That Richardson‘s felony convictions took place ten and twelve years ago affects where in the Guidelines range his sentence should fall, not whether or not departure is proper.
The district court, therefore, properly held that the small quantity of drugs involved in Richardson‘s instant offense and the length of time elapsed since Richardson‘s prior felony convictions did not provide a basis for a downward departure.
Because Richardson was sentenced within the Guidelines and the Guidelines’ provision was properly applied, the district court‘s decision not to depart downward is not appealable. Therefore, we dismiss the appeal.
RESTANI, Judge:
I concur in both the result and the reasoning of the majority. No opinion is offered as to whether the trial judge, in the absence of the Federal Sentencing Guidelines, would have or should have imposed a more lenient sentence in this particular case. I would observe, however, that application of the career offender provision of the Guidelines in certain cases may be overly harsh and the lack of discretion allowed the trial judge is disturbing. Nonetheless, curtailment of judicial discretion is what Congress intended by approval of the career offender provision in particular, and the Guidelines in general. Any remedy lies with Congress.