United States v. Jane Doe

Moreover, pipe- the AU reasoned that effort to further bloat the proceedings. lines would be more concerned with the Compare FERC, Pennzoil Co. v. price gas than

average 44; with the risk of at 1145 n. see 23-B, also Order No. ¶ purchases. some above-market See Initial 30,065 Regs. 30,453-55 FERC Stats. & Decision, 65,158. point The FERC is (anticipating pipeline-by-pipeline review of quite pipelines, operat- correct: interstate protests, with initial submission of evidence ing average-cost price regulations, under only by pipelines).

do not “lose” the difference between the Finding substantial support evidence in selling price gas cost and of a unit of orders, of the Commission’s deny (bought selling price), for more than the as petitions for review. firm; unregulated would an the above-av- So ordered. erage average, i.e., unit is “rolled” into the gives pipeline legal

it authority

charge higher price. Further, See id.3 analysis

the Commission’s of the effect of any

area rate clauses leaves untouched

price-reduction any claims and defenses to

non-performance pipeline might that a as-

sert under other clauses of the contracts (such clauses) gen- as market-out or under America, UNITED STATES of (such impractica- eral contract doctrines as Appellant, bility). Finally, petitioners have framed argument general ap- one that DOE, Appellee. Jane pears dispute premises the basic of Or- der No. 23—the sort that we have ruled out No. 90-3027. as a collateral attack on Order No. 23. Appeals, United States Court of FERC, Associated Gas Distributors v. District of Columbia Circuit. (D.C.Cir.1987). petitioners’

The last of Argued claims that Dec. 1990. marginally worthy of discussion is their May 24, Decided 1991. suggestion produc- that Northern and the ers did not meet their burden for the nu-

merous contracts as to which producer no (what petitioners

witness testified call the

problem “non-appearing producers”

“NAPs”). petitioners’ appears idea

be that there is a failure of evidence as to

such contracts. testimony But the encompassed

Northern witnesses all the

contracts, performance as did the course of producer

evidence. The 56 witnesses con- (as picture

firmed Northern’s towas

expected in producers’ view of the interest prices).

in escalated In the absence of

some hint that matters were different for

any producer, other there was no reason

for the acquiesce petitioners’ AU to And, regulation pipeline’s firm, if rate unregulated has held reduction in sales. An relatively portion rates to a contrast, inelastic of its de- presumably charge profit-max- would curve, materially mand below the level that imizing anyway, any purchase rates at a profits would maximize its in an uncontrolled price simply above that rate would cost it mon- market, pipeline charge will be able to ey- higher only lawful offsetting rate with a limited Fisher, requesting Atty., Asst. U.S. the court R.

John sentencing guidelines Atty., downward Jay Stephens, B. Thomas whom upon Doe’s Zeno, Rosenfield, U.S. based assistance. See and Ann L. Asst. U.S.S.G. E. (“Upon brief, government 5K1.1 motion of the Washington, Attys., § were on the stating provided the D.C., defendant appellant. for investigation substantial assistance in the the (appointed by Wayne B. Charles prosecution person of another who has Court) D.C., Washington, appellee. for offense, may court committed the de- part guidelines.”). from the Judge, MIKYA, Before Chief GINSBURG, and EDWARDS D.H. The district court held that section 5K1.1 Judges. Circuit process violates a defendant’s due by “precluding contesting from the her] by filed Opinion for the Court Chief prosecution refusal of the acknowledge to Judge MIKVA. cooperation with law en- [her] Roberts, forcement authorities.” See by filed Concurring opinion Circuit (“It F.Supp. at is difficult to Judge D.H. GINSBURG. parallel a conceive of situation in the law MIKVA, Judge: Chief where substantial interests and con- statutory appeal and constitu- This raises sequences provided by for statute are be- challenges to substantial assist- tional the yond by power inquiry anyone.”). the of provision of the United States Sen- ance appeared finding prin- The court to base its tencing Guidelines. Sen- See States cipally on “substantive” due no- (“U.S.S.G.”) tencing Guidelines § namely, right the to be sentenced on tions— the court The district concluded information, true and basis of accurate 5K1.1, permits to section which a court right and the to contest facts relied on guidelines recognize from to by question proceed- and to court cooperation with authorities ings. object- id. at 1374-75. The court upon government, only motion of the vio- particularly “Departure ed to the Commit- process. due lates States by Attorney tee” used the U.S. for this Roberts, (D.D.C. F.Supp. determine to for district to when move 1989). Although find the issues calling body departures, it a “secret” “com- presented significant and challenging, to be posed individuals other than counsel of we reverse the district court’s decision. prosecuting “operating the case” un- and procedures and to der standards unknown and to the I. the Court defendants.” Id. 1375-76. charges Doe was on of Jane indicted

possessing twenty-two kilograms remedy per- 5Kl.l’s of mari- As a section infirmities, juana with intent to the district distribute. See ceived constitutional 841(a), 841(b)(1)(D)(1988). government’s to proposed U.S.C. She court review the §§ subsequently pled guilty depar- to the to move for a indictment decision not downward and, although capricious” agreement “arbitrary no was exe- ture under an and ever cuted, cooperated prosecutor evidentiary and and scheduled an with standard explore hopes hearing law enforcement authorities in the of Doe’s assistance. See obtaining hearing, At lower sentence. On several id. at occasions, Doe provided drug Doe D.C. district determined that had interdic- court names, addresses, provided officers tele- to au- tion fact substantial assistance numbers, phone govern- other and information thorities and concluded that identifying drug capriciously in alleged arbitrarily traffickers in sev- ment acted cities. The file a motion. Based refusing eral D.C. authorities contacted assistance, cities, primarily finding local officials in its those otherwise guide- departed applicable showed little interest Doe’s court information. (which Attorney’s prescribed The U.S. Office between 21 range never filed line Due Process Concerns and a fine A. Substantive incarceration 27 months $50,000)by imposing a $5,000 and between decision to district court based its The incarceration, two four months sentence 5Kl.l’s mo- override $1,000 release, and a supervised years of principally on substantive tion appeal followed. government’s fine. applicable to the process concerns due sentencing process. As the dis- criminal II. noted, correctly es- court well trict “[i]t this to hear jurisdiction We have eases that an ac- tablished the decided 3742(b) 18 U.S.C. under appeal right process during has a cused appeal an other (permitting Roberts, F.Supp. sentencing stage.” 726 “imposed in that was final sentence wise Indeed, previously em- we have at a result of “imposed as law” or of violation pro- Fifth Amendment’s phasized that the sentencing of the application an incorrect liberty with- against deprivation of tections Chotas, v. United States guidelines”). See process suspended “are not out due Cir.1990) (11th (holding 897, 899 913 F.2d guilt, continue to pronouncement of but the district claim that “government’s that sentencing process.” in operate Unit- depart under authority to court lacked Lemon, 922, 933 723 F.2d ed States v. governmental of a in the absence 5K1.1 § Florida, (D.C.Cir.1983). v. See Gardner ap on cognizable claim presents a motion 349, 358, 1197, 1204-05, 97 S.Ct. 430 U.S. 3742(b)(2) misapplication as a peal under § (1977) (holding that 51 L.Ed.2d 393 guidelines”), cert. de sentencing of the satisfy the re- sentencing process “must 1421, 111 S.Ct. 113 nied, quirements of the Due Process Clause” States v. 473 L.Ed.2d Cf. legitimate defendant “has a that a criminal (1st 1010, LaGuardia, F.2d 1012 Cir. procedure interest in the character defen 1990) (finding jurisdiction to hear sentence”). imposition of leads to the which challenge to substan constitutional dant’s tenets, iden- by these courts have Guided provision under U.S.C. tial assistance in the rights so fundamental tified certain 3742(a)(1), permits defendants which § compelled by sentencing to be context as “imposed in violation of appeal sentences See, e.g., Townsend v. process. due Kuntz, law”); States v. 1252, 736, 740-41, Burke, 68 S.Ct. 334 U.S. Cir.1990). (10th 655, Our standard 656-57 (1948)(finding 1255, sentence 92 L.Ed. 1690 the district of is de novo because review assumptions “materially untrue” based on possessed it court’s decision Gardner, process”); “inconsistent with due from section 5K1.1 even absent (due at 1206-07 97 S.Ct. ques 430 U.S. presents pure government capital Chotas, process requires that defendant at 900. tion of law. See explain deny proceeding allowed to be applied its Although district court sentence); underlying information Lockett 3553(e) (1988), the holding to 18 U.S.C. § 586, 604, Ohio, 438 U.S. 98 S.Ct. departures provision governing statutory (plurality opin- sentences, minimum mandatory below ion) (sentencer capital proceeding may 5K1.1, only the latter well as to U.S.S.G. § not, process, pre- with due consistent appeal. in this is at issue mitigating cir- considering any cluded from con- Doe was indicted statute under which proffered by de- information cumstances or 21 U.S.C. tains no minimum sentence. See fendant). penalty, the nature of the Given Roberts, 841(b)(1)(D). § surprising most of the may not be it 3553(e) (discussing F.Supp. at 1360-61 in- identified have rights thus fundamental Stephaney defendant Rob- connection with sentencing proceedings. capital volved erts, of indicted for distribution who was sentencing is not cocaine base and whose recently appeal, re- companion In we court). before this suggestion that court’s jected the district defendants to criminal aside, process mer- due entitles Preliminaries turn to the individualized, judicially-crafted sen- its. Mills, 925 In finding guidelines’ tence. See United States v. addition to that the (D.C.Cir.1991). judicial curtailment sentencing F.2d We relied of discretion process, violates due holding Supreme repeated on the Court’s district court iden- specific tified process several scope sentencing judicial that the discre- it believed section infringed: policy tion is a matter within the control of example, a right to be sen- Congress. See, e.g., Mistretta v. United tenced on the basis of accurate and true States, information and to contest the facts (1989) (noting L.Ed.2d presented upon during or relied sentencing. scope judicial “the discretion with re- Roberts, F.Supp. at 1374. See also spect subject congres- to a sentence Burke, Townsend v. control”); Lockett, sional (1948)(violation 92 L.Ed. 1690 of due (noting 98 S.Ct. at 2965 that “the estab- prisoner where sentenced on the practice lished of individualized sentences assumptions basis of false about his crimi- commands, rests not on constitutional nal record that he never had an opportunity public policy statutes”). enacted into correct); Curran, similarly reject sug We the related (1st Cir.1991) (discussing defen- gestion government that section 5Kl.l’s right inspect dant’s challenge to infor- process by motion offends due mation by sentencing court). relied on To preventing a criminal defendant from the extent that the district court and Doe presenting mitigating (e.g., evidence her rely on rights these challenge asserted to assistance) cooperation or sentencing. inability the of the court to consider infor- Although Supreme the Court has held that mation about assistance as a basis for de- present parting a defendant guidelines, must be allowed to from the we have al- potentially mitigating ready rejected in capital arguments evidence those above. Lockett, See, Roberts, sentencing proceeding, e.g., F.Supp. (stat- 726 see 438 at 1374 604, 2964, ing right U.S. at 98 a defendant has rendered “[w]hen never been extended to the assistance to law non-capital con enforcement government but the req- text. See refuses to file the Levy, United States v. 904 F.2d motion, (6th Cir.1990) uisite the sentence the (finding 1035 Court is that de required impose under law to will not be sought fendant who court have consider information”). based on true and accurate cooperation his absent a mo tion right present had no “constitutional specific process These due are rel- mitigating evidence of prior circumstances level, on evant another however. A court — denied, sentencing”), to his cert. U.S. may always consider a defendant’s assist- -, 111 S.Ct. 112 L.Ed.2d 1060 selecting ance in a sentence from within (1991). Moreover, several other circuits guideline range, may the even if it not have observed that the fact that depart guidelines from the on that basis. could have entirely made assistance irrele (1988) (court may 18 U.S.C. 3661 vant to sentencing leaves defendants with any “concerning consider information little room to complain that the character, background, and conduct” of de- of section 5K1.1 will sentencing); fendant at 1B1.4 U.S.S.G. § prevent sometimes a court from consider (1990)(“In determining im- the sentence to ing See, cooperation. their e.g., LaGuar- pose guideline ..., range within the dia, 1015; 902 F.2d at United States v. consider, limitation, may any court without Lewis, (7th Cir.1990); 896 F.2d 249 concerning information” the defendant’s Francois, United States v. 889 F.2d character, conduct). background, Cf. — (4th Cir.1989), denied, cert. U.S. Huerta, United States v. -, 110 S.Ct. (2d Cir.1989) (noting authority that this (1990); Musser, insubstantial,” “not as the “maximum end 1484, 1487(11th Cir.1988), denied, cert. range imprisonment may for be as twenty-five percent greater much as than (1989). minimum,” and the time difference den routine review defendants’ may high eighty- as range

within a denied, pose. months), would claims of assistance one cert. government’s strong 107 L.Ed.2d interest institutional 5K1.1, speaks ex which Nothing in section fu- ensuring the continued assistance of clusively to a court’s protection against ture defendants affords infringes on those due guidelines, parsimony applying prosecutorial safeguard accuracy process rights that LaGuardia, See, e.g., F.2d at 5K1.1. by properly relied of information 1016; Moreover, Lewis, F.2d at 249. establishing a sentence court district below, III as discussed in section review Indeed, range. as oth guideline within the remains available in cases district court noted, judges pos district er have courts refusal government’s where the move to ensure that all rele power” “ample sess for a violates terms of a facts, defen including the extent of a vant cooperation agreement, pun- is intended to assistance, presented to them are dant's exercising ish the her consti- defendant “nothing in the sentencing, and prior to unjusti- based on rights, tutional or is some from call guidelines prevents accused fiable standard or classification such as and extent his assistance ing nature race. LaGuardia, 902 attention.” to the court’s join We thus those other circuits that (concluding that section 5K1.1 F.2d at 1016 rejected have substantive chal sentencing “materially impede the does not lenges provi to the substantial assistance facts”). to relevant court’s access guidelines. See, sentencing e.g., sion of the 2;n. F.2d at 1035 Levy, 904 Fed.R.CRIM.P. (1st Circuit); LaGuardia, 902 F.2d at report 32(c)(2)(F) shall contain (presentence Rexach, States re may be information “such other — (2d Cir.1990), denied, cert. 712-13 U.S. court”). case, In Doe quired by the this -, 433, (1990); 111 at the the issue assistance herself raised (4th Circuit); Francois, F.2d at 1344 889 hearing, demonstrating original sentencing Harrison, 30, 918 F.2d 33 United v. States sentencing can relevant how information curiam); (5th Cir.1990) (per Levy, 904 F.2d court a brought the even absent before Circuit); Lewis, (6th F.2d at at 1035 896 government motion. (7th Circuit); Ayarza, 874 F.2d at 653 249 level, general note that the On more a (10th (9th Circuit); Kuntz, F.2d 908 at 657 government provision motion of section Circuit); Musser, (11th F.2d at 856 1487 predicated on the reasonable as 5K1.1 is 3553(e)). Circuit) (addressing 18 U.S.C. § government posi is best sumption that Gutierrez, 908 see v. But United States “ ‘supply the court an accu tioned to Cir.1990), vacated, (8th F.2d F.2d 917 349 and report rate of the extent effectiveness banc) (8th Cir.1990)(en (mem.) (affirm 379 ” assistance.’ the defendant’s LaGuar ing by equally divided vote district dia, (quoting at 1015 902 F.2d guidelines ab court’s from White, (5th F.2d 869 829 States v. motion). doing, a In so government sent denied, Cir.1989), 490 cert. 109 intimations own prior we adhere to in our (1989)). 104 Ortez, precedent. v. See United States 249; Francois, Lewis, at F.2d 896 F.2d (D.C.Cir.1990). F.2d 1344; Ayarza, 874 F.2d States — m(n) Cir.1989), denied, (9th cert. B. 28 U.S.C. § 107 L.Ed.2d Doe two alternative rationales presents (1990). light, in govern this Viewed urges uphold upon which she this court to requirement is not a sinister ment motion sponte departure the district court’s sua impediment to defendant’s of her a exercise guidelines. predicated from Both are process rights, rather substantive 994(n), in Congress on 28 which U.S.C. § practical govern a that device allows the that: directed appropriate in give weight ment to to its activities, The shall that Commission assure vestigative and enforcement general appropri- guidelines reflect the courts of the relieves administrative bur- Cortez, (9th Cir.1991) sentence imposing a lower ateness of curiam) imposed, (per includ- (applying “sufficiently than would otherwise be reason- is lower than that ing Sentencing a sentence that able” standard to review Com- Lee, a minimum sen- guidelines); statute as mission established tence, (8th Cir.1989) (same). into account a defendant’s to take investiga- in the substantial assistance We can find no fault with the Commis- person prosecution of another tion or delegated authority sion’s exercise of its an offense. who has committed this instance. fact that itself First, 994(n) (1988). Doe con- 28 U.S.C. § drafted substantial assistance government provi- motion tends that containing government require- motion 5K1.1 is inconsistent with sion of section located, happens, as it so immediate- ment — 994(n), invalid. Sec- section and therefore 994(n) ly prior to original section in the ond, 994(n) argues that section confers Doe legislation precludes any doubts as liberty upon defendants a interest hav- reasonableness of the Commission’s inclu- during ing their assistance considered sen- sion of such a in section 5K1.- tencing, and that section violates 1. See 18 U.S.C. 3553(e) (permitting de- § require- procedural minimum constitutional partures mandatory below minimum sen- effectuating interest. ments upon government motion); tences Anti- Inconsistency Drug Abuse Statutory Act of Pub.L. No. 99- 1007(a) (amending 18 U.S.C. § § 5K1.1, argues Doe section by adding (e)), 1008(1) (amend- subsection § requires which before ing by adding 28 U.S.C. subsection § may a court consider a defendant’s assist (n)), 100 Stat. 3207-7 See also Fed. ance, 994(n), conflicts with section in which 35(b) (permitting court to correct R.Crim.P. Congress expressed no intention to so limit upon sentence motion of the According consideration of assistance. assistance), reflect defendant’s amended in argument, Sentencing this Commission Act, supra, part by Anti-Drug Abuse 994(n)’s ignored general instruction 1009; Lewis, (observing guidelines “take into account a “[sjince Congress conditioned the assistance” power courts’ to lower sentences to reflect procedural erected a hurdle envi never government’s substantial assistance on the by Congress. sioned motion, it not was unreasonable for the Commission, Sentencing The to which Sentencing Commission to conclude that Congress expressly delegated rulemaking for it intended to include authority regarding sentencing poli- federal any in cy, see 28 U.S.C. 994, (1988), 995 has §§ wrote”). guideline it independent agency been described as “an Mistretta, reject statutory We thus Doe’s inconsist every in relevant sense.” 488 393, argument overriding for ency as a basis U.S. at 109 S.Ct. at 665. Section 994(n)’s government'motion require Sentencing broad instruction to section 5Kl.l’s the same. respect Commission with to the ment. Other courts have done See, Lewis, (7th e.g., guideline merely example assistance 248 is one 896 F.2d at Cir Grant, cuit); express statutory delegation. of this 886 F.2d 1513, (8th Cir.1989); Ayarza, discharge delegated Commission’s of its au- 1514 874 F.2d deference; (9th Circuit); States v. thority is entitled to we can ask at 653 n. 2 White, (5th Cir.1989), only whether section 5K1.1 is a reasonable 869 F.2d denied, cert. permissible construction of section 490 U.S. 109 S.Ct. Ortez, 994(n). (1989). See Inc. v. Chevron U.S.A. Natu- 104 L.Ed.2d 1033 Council, ral Resources (casting 467 64 doubt on similar U.S. at Defense 837, 842-45, 2778, 2781-83, But see United challenge). statutory 104 S.Ct. (1984); Lewis, Chotas, (11th States v. L.Ed.2d 694 896 F.2d at Cir.1990) (Clark, J., (applying concurring part in deferential standard of review to 5K1.1); United States v. Martinez- dissenting part) (finding section in section 5K1.1 (holding “Congress 994(n), as

contrary to section explicitly manda repeated “the use of with statute draft a [a knew how requiring in with tory language connection it when restriction government motion] — predicates demands a specific substantive denied, so”), cert. to do wanted has created a the State conclusion 113 L.Ed.2d -, 111 S.Ct. interest”); Tarpeh-Doe v. liberty protected (1991). (D.C.Cir. States, 1990) (“Whether given statutory scheme Liberty Interest Statutory depends protected interest gives rise to a may arise liberty interests Protected promulgating the on whether or from itself Process Clause Due regulation placed substan statute or regulations. See or enactments legislative discretion.”), de official cert. tive limits on Thomp- Kentucky Dep’t Corrections — nied, 460-61, son, (1989). We have 1908-09, 104 L.Ed.2d sugges- court’s district already rejected the 994(n) contains Although section in- violates section 5K1.1 tion that (i.e., language mandatory some isolated Doe Clause. Process in the Due herent assure”), the over “the Commission shall Congress created a however, that argues, highly permis all tenor of the 994(n)— through section interest liberty sive, guideline re requiring only that the interest a criminal specifically, “general appropriateness” of con flect the by the considered having her assistance sentencing. More sidering assistance at sentencing. we Were court at district over, or “limits” we can find no substantive 994(n) such in fact creates find that section “predicates” that cabin the Commission’s interest, then would liberty protected Thomp any way. Compare discretion contends, whether, as Doe need to examine son, 109 S.Ct. at 1910 490 U.S. at minimum constitu- violates section provided (finding prison regulations denying by requirements procedural tional guide officials’ predicates to substantive heard opportunity defendants visitors); Helms, exclusion Thomp- relevant decisionmakers. (finding 471-72, that state 103 S.Ct. at 871 (“We 460,109 son, 490 U.S. at permitted administrative prison regulations questions procedural due examine “specified segregation only upon substan there first asks whether steps: two control,’ ‘the need predicates viz., tive interest which property exists a ”). disturbance’ of a serious or ‘the threat State; by the interfered has been language of precatory generally Given procedures whether second examines 994(n), defendant could a criminal deprivation were con- upon attendant expecta objective “reasonably form an not stitutionally (citations omit- sufficient.” con would be tion” that her assistance ted)). sentencing. Thompson, sidered 465, 109 S.Ct. at 1911. U.S. at task, then, is to determine first Our general is too that the statute Our view protected created a lib whether liberty interest 994(n). give protected rise to a to it enacted section interest when erty that report supported by a 1984 Senate that a explained Supreme Court of in similar subsections addressed protected legislature “creates (n). See prior to subsection 994 enacted limitations on substantive by placing terest S.Rep. Cong., 1st Sess. 174 98th is, discretion”; by “establish that official No. Cong. (1984), reprinted in 1984 U.S.Code offi govern to predicates’ ing ‘substantive & that (explaining further, and, by man decisionmaking cial Admin.News 994(e)-(m) only “general contain upon a sections to be reached dating the outcome direction for legislative of statements criteria have been finding the relevant that promulgating follow 109 Commission Thompson, met.” Indeed, holding above our guidelines”). (citations omitted). Hew at 1909 994(n) delegates to the Com- that section Helms, itt v. guide- degree promise agreement cant on a deciding how the of mission the task of prosecutor, defendant’s assist- so that it can lines reflect a be said to be should finding effectively prevents part consideration, us from of the inducement or ance fulfilled”). so constrains promise that the same such must be here drafting as to discretion the Commission’s principles We deem these limited of re- liberty interest. protected create a equally applicable govern- view to the threshold claim Having rejected Doe’s ment's exercise of its discretion under sec- liberty inter- concerning of a the existence departures. tion 5K1.1 to for move Other est, no cause to test section 5K1.1 we have courts similar have reached conclusions. against procedural minima. See, Rexach, e.g., (not- 896 F.2d at 713-14 ing that “the decision to make or withhold

III. departure a motion for downward must be given high the same level of deference as from no Because section 5K1.1 suffers prosecutorial decisions,” recog- other statutory infirmity, constitutional or nizing govern- prosecutor’s that a ignoring “determination district court erred reviewing dissatisfaction” with the defendant’s as- ment motion sistance invidiously “cannot be made or in government’s decision not to move faith”); Bayles, capri- bad departure arbitrary and under an (7th Cir.1991) (suggesting fol- that review. It does not cious standard of prosecutor’s low, however, review of decision not to de- prosecu- all review of a part would principles be available under departure not to move for tor’s decision decisions); Bather, applicable prosecutorial to other precluded. we believe should Mena, un- United States limited review would be available (9th Cir.1991) (acknowledging possibility of currently employed der the same standards induces review where defen- by district courts to review other matters upon cooperation promise dant’s “based prosecutorial discretion. committed departure,” of a motion for or otherwise Despite the broad latitude tradition faith”). acts in “bad ally prosecutors regarding accorded to mat unique competence, ters within their such us, we find On the record before no see Borden charges, selection suggesting evidence 357, 364, Hayes, kircher v. refusing exceeded its discretion in broad (1978), courts for a on move the district court prosecutor attempts will intervene where a Rather, Attorney’s Doe’s behalf. penalize exercising a defendant for his province acted within the of authori Office Mills, legally protected rights, see, e.g., through Sentencing ty Congress, United States v. Commission, (citing F.2d at 461-62 upon it. It is not bestowed Meyer, (D.C.Cir.1987)), superimpose preferences our for us to prosecutor or where the his decision bases those bodies. “upon unjustifiable standard such as race, religion, arbitrary or other classifica IV. Hayes, 434 U.S. at tion,” 98 S.Ct. at (citation omitted). Wayte We conclude that section 5K1.1 suffers States, v. 598, 607-08, United statutory no constitutional or infirmi- from 1524, 1530-31, ty justify 84 L.Ed.2d 547 to the district court’s sufficient sponte sua reviewing prosecutor’s In from the addition to a ac decision to applicable guidelines. govern- tions for or Nor did the vindictiveness invidious selec tivity, courts also will ensure that the ment’s failure to move for a substantial honors commit in this case exceed the contractual assistance Santobello v. bounds of traditional prosecutorial discre- ments with defendants. York, New 404 U.S. tion. therefore reverse the decision of We 498-99, (1971) departed (holding 30 L.Ed.2d 427 that the district court insofar as it [guilty] plea signifi- guidelines the any applicable “when rests in basis assistance, require Congress the to take account of of the defendant’s ignorant of sentencing proceed- whether convict was the law further and remand violated, unlikely it that he seems the Con- ings. constitutionally condition gress could a re- objects to the dis upon prosecutor’s in sentence the duction during sen apparent reliance trict court’s judgment on that unreviewable issue. as background factors such the tencing on Rather, I is believe that 5K1.1 constitu- history, her of criminal lack defendant’s tional, is, (1) very if it it involves because pregnancy, and responsibilities and family delegation “sentencing” narrow of authori- it is true history. While employment her prosecutor, concerning a ty to the matter on such emphasis placing undue that (2) personal experience; his he has a within see, guidelines, violate the could factors strong incentive not to abuse that authori- (providing that 5H1.6 e.g., U.S.S.G. § ty; likely he or would unable responsibilities ... are “[fjamily ties and authority unwilling to use at all if his the determining ordinarily relevant not ordinarily subject decisions were to either outside the should be a sentence whether process judicial protec- review or to the due (providing 5H1.5 guidelines”); U.S.S.G. § applicable proceedings. tions to court ordinarily is not “[ejmployment record that States, Wayte v. 607- a sentence determining whether relevant 1524, 1530-32, 105 S.Ct. guidelines the or where outside should be (1985) (court examine will not decision sentence should guidelines a within the prosecute except whether to for intentional fall”); Pozzy, v. States basis, race, such discrimination on a Cir.1990) “totality (1st (rejecting a religion, or the exercise of a approach to sentenc of the circumstances” right, statutory that constitutional de background factors included ing, where equal protection would violate the norm denied, pregnancy), cert. fendant’s in the Clause the implicit Due Process of L.Ed.2d 111 S.Ct. Amendment). Fifth (1990), pretermit the will not district Second, particular even in these circum- Rather, the inquiry on remand. court’s stances, proper resolution consti- to resentence Doe district court entitled In issue is clear. tutional far from addition on a clean slate. concerning to the cases due in sen- It is so ordered. cites, tencing, Morrissey which the court Brewer, GINSBURG, Judge, D.H. Circuit (1972),suggests granting concurring: prosecutor authority to unreviewable opinion generally in the court’s I concur judgment make a that could decrease the separately emphasize to two write may deny pro- him convict’s sentence due First, impli- points. agree I do not with the any Noting “[wjhether proce- cess. Congress that because the could cation protections depends on the dural are entirely irrele- a convict’s assistance make to which individual will be con- extent receives, once vant to the sentence he loss,” grievous to suffer the Court demned (or Commission) Sentencing deprives parole revocation found is to be a factor has decided that assistance constitutionally protected aof liber- convict in sentencing, the Due Process Clause of subject ty interest and to vari- is therefore nothing say the Fifth Amendment procedural protections. Id. at ous used procedures (internal that must be about the quotation marks and S.Ct. at specifically, Moreover, decision. More implement deleted). in the citation course process limits requirement of due reasoning panoply full of that “the delegate to Congress’s pros- due a defendant [a criminal] prosecutor finding the facts job parole apply ecution not revoca- [do] legislature tions,” making judgment “[p]arole the Court noted that arises prosecution, sentencing. relevant to For exam- the end of the criminal deems after sentence,” ple, though including imposition even does id. Constitution not at 2600. See Greenholtz S.Ct. Inmates, Penal v. Nebraska (1979) distinction between

(recognizing “crucial has, of a one

being deprived being denied a conditional liber-

parole, and desires”); 9-10,

ty one id. (recognizing distinction between

at 2105 “in-

“retrospective question” factual and ]”); prediction[ and Mistretta v.

formed States, 391 n. 664 n. 102 L.Ed.2d rulemaking

(vesting in Executive Branch regarding sentencing raise would difficulties).

constitutional sentencing of the au-

The narrowness by

thority delegated prosecutor to the unanimity virtual of the 5K1.1 and the

§ constitutional, upholding it as

circuits

however, together join me the court lead holding judg- the district court’s Nonetheless, the

ment must be reversed. issue, magnitude of the

difficulty of the

stakes, superficiality analy- and underlying

sis several of the circuits’ deci- give hope Supreme reason to that the

sions point will at some evaluate

Court teachings light prior

in the shed its requirements of due in the

sentencing context. SIMMONS, Petitioner,

Patrick W. COMMERCE COMMIS-

INTERSTATE States of

SION

America, Respondents.

No. 90-1365. Appeals,

United States Court of

District of Columbia Circuit.

Argued April 1991. May

Decided 1991.

Rehearing Rehearing En Banc Denied

Aug.

Case Details

Case Name: United States v. Jane Doe

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 24, 1991

Citation: 934 F.2d 353

Docket Number: 90-3027

Court Abbreviation: D.C. Cir.