United States v. John Buckendahl

lawyer’s letter as the accepting able by stop payment order of a a letter from the client. equivalent of to the drawee. issuer notice de- means writing” 4. “Notice that he in fact argues also plaintiff inmail registered certified posited as attempted dogs. to return the These had mail and addressed States the United present (assuming, as we must for events appears it on at his address as the issuer they occurred accordance purposes, that or to his or draft check the dishonored already testimony) had plaintiffs with the shall The notice known address. last was sent. More before the letter occurred make that failure to contain a statement prosecutor had the defendant importantly, days within ten check or draft good the events, any such nor knowledge no of subject the receipt of the notice they that had occurred. suspect reason prosecution. to criminal issuer .4. § & 570.125.3 Mo.Rev.Stat. III. prima facie There was evidence At 570.125. of Mo.Rev.Stat. a violation reasons, that we hold foregoing For the filed the signed and Mr. Broz the time qualified immuni- Mr. Broz entitled was the fol reasonably believed complaint he did not err and the Court ty District (1) and had issued that Mr. McGee lowing: summary judgment. granting $1,650 Hardin to Ms. a check for delivered is affirmed. judgment (2) that Mr. payment puppies; for six as stopped puppies and received McGee (3) check; Ms. Har that on the

payment mail, sent, by certified attorney had

din’s or the payment either demanding

letter (4) Mr. that dogs;

return of nothing but did the letter received

McGee Thus, could Mr. Broz to it. answer probable reasonably believed that

cause existed. that Hardin argues McGee Ms. Mr. America, STATES UNITED notice comply with the statute’s did not Appellee, contends Mr. McGee requirements. v. Ms. payee, requires the statute letter, Hardin, not her the demand send BUCKENDAHL, John Herman Wallace, disagree. See attorney. We Appellant. Enochs, Austin, Saunders, & Char Brown (Mo. Rahm, 963 S.W.2d tered v. America, Appellee, United States Weinstein, v. 411 S.W.2d App.1998); State (an acts attorney’s (Mo.App.1967) regarded client[ ] of his “are those Ringis, Appellant. Joseph John on, binding by, done having been as ]”). exists in reported No case client[ America, Appellee, interpreted court has a Missouri which sent excluding notice conclude, there lawyer, and we someone’s Johnson, Appellant. Joseph

fore, reason- John the defendant here was America, Appellee, United States of Valdivia-Cardona,

Juan Carlos also Garcia,

known as Paul Steven also Garcia, Appellant.

known as Stevan America, Appellant,

United States of

Jeffrey Clark, Appellee. Alan 00-1001, 00-1057,

Nos. 00-

1151 and 00-1266. Appeals,

United States Court of

Eighth Circuit.

Submitted: Nov. 2000. May

Filed:

district court may depart downward from Sentencing United States Guidelines (Guidelines) based on interdistrict sen- tencing disparity arising practice from the Attorney United States for the Northern rarely District of Iowa to agree grant use immunity under section 1B1.8 of the Guidelines. We hold that the court possess does not such authority. Accord- ingly, part we affirm in and reverse in part.

I. BACKGROUND The defendant in each criminal case pleaded guilty to at least some of the charges against him. Joseph Ringis, John Juan Carlos Valdivia-Cardona and Joseph John all pleas Johnson entered without cooperating with government. They each made the decision to cooperate, at Burns, B. John Assistant Federal Public part, in least they were not of- Defender, Moines, IA, appellants Des for fered section immunity. 1B1.8 use With- Buckendahl, Ringis and Valdivia-Cardona. protection, out this information they Rhinehart, IA, R. City, Scott Sioux for gave to the authorities about the activities appellant Johnson. others, which was also self-incrimina- Jr., Deegan, Peter E. Atty., Asst. ting, U.S. against could be used in them calcu- IA, City, appellant Sioux for in (and U.S. Case lating their offense levels thus No. 00-1392. sentences) determining their under Guidelines. Johnson and Valdivia-Cardo- Williams, C.J. Atty., Asst. U.S. Cedar na offered to cooperate with govern- Rapids, IA, for appellee No. 00-1057. in exchange for section IB protec- Jr., Peter Deegan, E. Atty., Asst. U.S. tion, offered, but when no was appellees for in Nos. 00-1157 and 00-1266. they pleaded without cooperating. John Fletcher, Kevin C. Asst. Atty., U.S. for Herman Buckendahl cooperated with the appellee in No. 00-1001. government by providing information on the criminal activities of coop- others. The Burns,

B. John Assistant Federal Public eration agreement contained a “limited use Defender, appellee in No. 00-1392.

immunity” provision prohibited BEAM, HEANEY, BYE, Before and from bringing further drug Judges. Circuit charges against Buckendahl based on the provided, information he but allowed the BEAM, Judge. Circuit information to be used calculating his This opinion appeals addresses sentence. In the from five course of his debriefing, separate criminal cases he Northern furnished information that tended to District of Iowa. At issue is whether a increase his sentence under the Guide- Clark, prejudice actual this to be lines.1 departed downward. held a consolidated district pur- limited eases for the in these hearing II. ANALYSIS ability to the court’s addressing pose of A. of Review Standard due the Guidelines depart downward practice of policy or purported to this deference to giveWe substantial Dis- in the Northern prosecutors federal whether court’s decision as to the district court determined of Iowa. The trict in an indi from the Guidelines policy such office had prosecutor’s States, 518 case. Koon v. United vidual significant in a resulting practice 81, 98, 135 L.Ed.2d U.S. Dis- Northern Southern between (1996). However, a factor “whether availability of section in the of Iowa tricts departure under basis for permissible fact, court re- In immunity. law, question is a any circumstances only testimony ceived need not defer to appeals the court of country in the other districts or four three point.” resolution district court’s practice. a similar followed 100, 116 Id. at S.Ct. the possessed that it The court found Approach B. Heartland based on depart authority to downward prosecutors. “fed- practices perception of the that disparate response In to the the However, in the cases depart unjustifiably an wide judges it declined mete out eral and Johnson offenders with simi- Ringis, range Valdivia-Cardona of sentences crimes, the because, cooperate histories, with refusing to of similar by lar convicted circumstances,” no addi- they had revealed under similar government, committed their sen- that increased States Sen- information created the United Congress tional (Commission) preju- no actual for and thus suffered the tencing tences Commission policy. comprehensive the The court a as a result of purpose promulgating dice 92,116 Buckendahl’s case at guidelines. Id. sentencing refused also set omitted). (citation because, information although provided he Guide- S.Ct. have increased debriefing sentencing that “specify in his would lines sentence, that the persons the court concluded convicted class of range his for each infor- possessed this related to the already various government based on factors (citation independent sources. Id. through the offender.” offense and mation omitted). a Thus, prejudice impose no as must a suffered A district court he also by specified practice. range within the result of sentence Id. guideline. applicable before case came Jeffrey Alan Clark’s that a Congress recognized He entered a later court at a date. some mea- retain sentencing court must with the cooperated guilty plea the individ- respond to flexibility debriefing sure submitting to a by defendant. given a ual circumstances of a testifying before federal session end, a court district he To serve information jury. As a result of grand range guideline applicable depart from cooperation, Clark’s through this provided exists an there if “‘the court finds in- Guidelines level under offense circumstance of mitigating or aggravating court found from 28 to 36. creased Ringis, States v. opinion. United each trict situation of details about the 1. More 1999). (N.D.Iowa F.Supp.2d 905 dis- in the defendant contained individual whole," kind, degree, adequately and the Guidelines taken as a or to a by Sentencing decide whether it is sufficient to take the taken into consideration formulating guidelines case out of the Guideline's heartland. Commission in that should result in a sentence different Koon, 95-96, 518 U.S. at 116 S.Ct. 2035 (quoting (citations omitted). from that described.'" Id. The Commission ex- 3553(b)); U.S.C. see also U.S. Sentenc- pected departures based on factors ing [hereinafter Guidelines Manual not mentioned in the Guidelines would be (1999). Sentencing U.S.S.G.] § 51<2.0 "highly infrequent." U.S.S.G. Ch. Pt. guideline A(4)(b). cautioned, however, courts should "treat each We are carving `heartland,' typical out a a set of against creating broad rules about what embodying cases the conduct that each may proper departure not be a basis for guideline "Congress grant describes." U.S.S.G. Ch. Pt. did not federal A(4)(b). determining When whether a authority courts to decide what sorts of typical atypical (whether case is or there sentencing inappropri- considerations are mitigating adequately exists a factor not every Koon, ate in circumstance." Commission), taken into account U.S. at 116 S.Ct. 2035. only "the court shall consider the sentenc- Disparity availability in the of section ing guidelines, policy statements, and offi- specifically is a factor not commentary [Commission]." cial 18 mentioned in the Guidelines. It is certain 3553(b). U.S.C. ly explicitly not in the forbidden factors employ use it as a basis for den departure, ^[1] special factor, After If the following identifying factor is an special rules: factor is a forbid- departure. encouraged potential court cannot court should factor ^[2] fac- If warrant fore, ture and factor. See U.S.S.G. mine whether it is sufficient to take this case out of the Guideline's heartland and nor is it an we will departure.2 theory proceed encouraged of the Guidelines to deter to consider the struc §~ 5H & 5K. There discouraged factor is a take it into account. tor, applicable guideline the court is authorized to discouraged factor, ^[3] does not If the depart already special or an if C. Structure tines 1. Disparity and in Practices Theory of Guide- encouraged already justified disparity legitimate factor taken into ac- A applicable guideline, prosecutorial practices, disparity count or even a depart only resulting court should if the factor is in sentences from present exceptional degree practices, proper to an or in is almost never a basis way departure. some other makes the case different for See United States v. Gnz ordinary man-Landeros, 1034, (8th from the case where the factor 207 F.3d 1035 present. ^[4] If a factor is unmen- Cir.2000) (per curiam) (rejecting the defen guidelines, must, argument tioned in the the court dant's that he would have been considering eligible departure after the "structure and the- "for a downward based ory guidelines sentencing disparity of both relevant individual on the which arises 969, (9th Cir.2000)(en banc). argued 974 Whilewe It could also be that the "heartland agree analysis analysis" only applies that the heartland seems most to offender characteris- evaluating appropriately ap- suited to offender characteristics tics or conduct and is not plied conduct, parts we declineto craft a rule at this to other of the Guidelines. See limiting Banitelos-Rodriguez. time it to such a context. United States v. 215 F.3d

759 disparity downward based on depart not plea-bar- prosecution differing from sentences). districts”). Addi codefendant between federal among practices gaining disparity between the tionally, a statistical a sentenc- instance, we have held For drug trafficking for median sentence dispari- based on depart ing circuit and the national me particular one codefendants in the sentences ties inappropriate found to be an dian has been plea which coeonspirators arise v. departure. United States ground pros- charging practices bargaining (1st Cir.2000). Martin, 52, 221 F.3d 57 127 Wong, v. See United State ecutors. (8th Cir.1997); 725, United States 728 F.3d promoting are correct Defendants (8th Cir.1995); Polanco, 893, 897 53 F.3d v. in criminal sentences is greater uniformity 659, Foote, 666 898 F.2d v. United States purposes. main one of the Guidelines’ See Cir.1990). (8th Decora, 676, 177 v. F.3d 678 United States (8th Cir.1999). However, above reached similar courts Other clear, based on departures cases make results, authority depart finding no disparity in individual perceived cases that result sentencing disparities on based likely serve to undermine the would more plea- interdistrict differences ed from uniformity rather than overall fur goal Ar v. policies, United States bargaining Polanco, See, F.3d at e.g., it. 53 898 ther 1257(10th 1255, menta-Castro, 227 F.3d (“Consideration a codefendant’s sen Cir.2000); Banuelos-Rod United States v. alleviate, ‘create, than rather tence would Cir.2000) (en (9th 969, F.3d 978 riguez, 215 imposed na disparity among the sentences Bonnet-Grullon, banc); States v. United defendants convicted tionwide federal (2d Cir.), 692, cert de 709-10 ”) (quoting crimes.’ of similar - nied, 261, -, 121 148 S.Ct. U.S. (4th Hall, n. 4 F.2d (2000) deci or a prosecutor’s L.Ed.2d Cir.1992)). drug attributing differing about sions courts to Allowing sentencing on whether to codefendants based amounts availability of upon the based trial, plea or Unit they went entered protection between districts Rodriguez, F.3d ed States the same result as the potentially leads to denied, (1st Cir.1998), 526 U.S. cert. undermining actually cited cases— (1999). 1044 143 L.Ed.2d However, uniformity. un- goal of overall disparities proposition that Generally, the of this case proper analysis, resolution der resulting among codefendants sentences depar- upon whether the depend does not prosecutorial of a routine exercise from or hinder na- in fact promote ture would departure, is are unsuitable discretion “a review of uniformity tional v. States question. See beyond United dispar- that the history suggests legislative Cir.1996) (7th Meza, 127 F.3d did sought to eliminate ity Congress that disparity resulting (finding codefendant prosecutorial the exercise not stem from of the Guidelines “proper application” from Banuelos-Rodriguez, discretion.” United departure); a basis for was not at 976. F.3d (6th 571, 584 Epley, 52 F.3d States be drawn Cir.1995) conclusion to where cocon- (denying departure “justified” that panoply cases with the au this good “made a spirator deal prop sentence); resulting from disparities a lower and received thorities” —’those to each of the Guidelines Ellis, application er F.2d appropriate not an ba Cir.1992) individual case—are (4th prose- (holding that absent Meza, at 549. departure. sis for district cutorial misconduct “[wjhile that, unjustified disparities may war- generally courts endorse this departure.3 rant a Id. at 550. byproduct [Guidelines], anomalous to the extent that government’s behav- Authority 2. Prosecutorial to Enter directly prejudice ior results in to a defen- Agreements IB Section 1.8 dant, significant which is enough to take Determining whether the interdis the case out of the heartland of the Sen- prosecutorial trict practices Guidelines, tencing district courts have the justified upon these cases is turns prosecu grant discretion to down- authority. Only prosecutors torial if the departure.” ward Id. examining When possess authority rarely do not (or agreements section 1B1.8 non-agree- agree protection IB would ments), a prejudice defendant sig- suffers practice improper applica result an nificant enough to take the case out of the Guidelines, tion of the in an resulting un prosecution heartland if the engages justified disparity that could be corrected misconduct, discretion, some abuses its through departure power.4 In other this, otherwise acts improperly. Short of words, disparate unique practice prosecutorial conduct concerning section the Northern District of Iowa can only be agreements cannot be a basis for departure basis for a under section departure. 5K2.0 if the have exceeded authority their or otherwise “im acted Thus, separating after the wheat from properly” under the Guidelines. The case, the chaff in this we are left with the scope prosecutorial discretion is defined following question: is a general policy or by practices reference to the of other practice of rarely granting section 1B1.8 districts, federal but the Guidelines and government’s within the proper governing law. exercise of discretion? We heavily district court relied on begin with the language of the Guidelines. Jones, (8th United States v. 160 F.3d 473 lB1.8(a) provides: Section Cir.1998). provides That case indepen no Where a agrees defendant cooperate dent departure basis for in these cases. with the government by providing infor- In Jones we considered a sentencing mation concerning unlawful activities of authority court’s based others, and part cooperation disparity in sentences among coconspira agreement agrees that particular tors. Of concern was the fact self-incriminating provided information principals in the conspiracy get could pursuant agreement to the substantially will not be lower sentences than lesser against defendant, used members of the conspiracy then such because of the interaction of plea-bargaining practices information shall not be used in deter- and the Guidelines. Id. at 483. mining We noted applicable guideline range, instances, fled, 3. In at least two the Commission or disparities acceptable whether particular guidelines has amended to re- and the Commission will intervene to correct spond, part, Therefore, disparities only in to in sentences that those that are not. it ulti- prosecutorial practices. mately resulted from help interpretation does not us in our C, I, app. See U.S.S.G. of the vol. Guidelines. amend. 365 & amend. 506. it is unclear whether this is evidence that the Commission believes If the have exceeded their au- disparities arising varying from exercises of thority', then the court could even if prosecutorial generally discretion are unjusti- resulting disparity there were no of sentences. (or pursue not to ing charges agreeing in the provided the extent except to if the court determines potential charges) agreement. reflect the ser remaining charges that the lB1.8(b) specifies that further Section conduct and of the defendant’s iousness in several situa- apply not does restriction not undermine the agreement does rely on may court notably, the Most tions. 6B1.2 commentary The Guidelines. it deter- when information protected requirement does “[t]his states that extent, whether, a down- toor what mines intrude judges authorize under section departure is warranted ward prosecutor.” charging discretion lB1.8(b)(5). In con- § U.S.S.G. 5K1.1. 6B1.2, Also, may a § cmt. court U.S.S.G. information trast, may not use a court manipulation any “inappropriate” control agreement in a section IB protected the use power through of the indictment guide- applicable from the depart upward departure power. U.S.S.G. Ch. of its 1B1.8, n.l. § cmt. range. line U.S.S.G. A(4)(a). lan implication of this Pt. under this government’s discretion its that the not use guage is only extremely broad. The provision power to interfere with the departure 1B1.8 to enter a section ability on the limit use of its indict prosecutor’s legitimate provided that the information agreement is provisions indicate authority. These others. The of be about the activities the ef “the considered Commission when, about gives no indication guideline prosecutorial dis that the exercise of fects often, under circumstances or what how uniformity has on the sentences. cretion make such an should courts to allow The Guidelines Case, the In In Re Sealed agreement. in narrow cir limited take certain actions that the noted District of Columbia Circuit inap prosecutor’s cumstances address government” motion of “upon clause discretion.” Banue propriate exercise of part “congression of a 5K1.1 is U.S.S.G. at 975. los-Rodriguez, 215 F.3d provisos placing similar al tradition Therefore, any disparities arising from prosecuto- implicate issues statutes (or practices prosecutorial judgment.” discretion rial (D.C.Cir.) (en practices) banc), resulting those 128, 132, cert. sentences justified under the Guidelines. The denied, 145 are 528 U.S. that such dis- (1999). knew obviously Commission find the broad L.Ed.2d We dissimilarity cretion could result in follows language contained in different Thus, policies followed practices the most in that same tradition. Thus, resulting from disparities districts. 1B1.8 is that the reading of section natural by pros- discretion proper exercises about en intended decision Commission to be “unusual” cannot be said left to the ecutors agreements to be tering into departure warrant enough to “atypical” prosecutor’s discretion. 5K2.0. under section The Guidelines address cases in 5K1.1 and Examining section places. other several discretion prose- towards implications 6B1.2, terpreting its governs the ac which U.S.S.G. supports this discretion further that a cutorial agreements, states plea ceptance “Upon provides: result.5 Section 5K1.1 dismiss “may” accept agreement case law is substantial guide because al there recognize that 5K1.1 and section 5. We section interpreted the concerning how courts language and in very 1.8 are different IB prosecuto- with of the Guidelines interaction placement in the Guidelines. their gener- rial discretion. helpful as a examining is section 5K1.1 762 tion, government stating

motion of the that the at in part, least on an evaluation of provided defendant has substantial assis the help. defendant’s substantial prosecution tance in investigation the noted, As earlier section 1B1.8 and person another who has committed an of its accompanying commentary contain no fense, may depart the court from the language that prosecutor’s would limit the guidelines.” We have held that under sec discretion concerning when or how often 5K1.1, exceptions, tion with limited the agreements enter into to extend section court cannot from the Guidelines protection. 1B1.8 It simply provides based on the substantial assistance of a (1) defendant without a where a gov agrees cooperate; motion from the defendant (2) Wilkerson, ernment. government See United States v. the agrees to not use 1083, (8th Cir.1999); 179 F.3d 1085 see self-incriminating arising information out Case, 130; also In Re Sealed 181 F.3d at cooperation defendant; against the Abuhouran, 206, United (3) States then such information cannot be used (3d Cir.1998), denied, cert. 526 U.S. to determine the applicable guideline 1077, 1479, 119 S.Ct. 143 L.Ed.2d 562 range. This gives government the (1999). power, but not duty, into enter agreement. such Wade v. United This court only has thus far found one Cf. States, 181, 185, 504 U.S. 112 S.Ct. limitation on government’s discretion (1992) 118 L.Ed.2d 524 (stating section arising from the Guidelines the section gives 5K1.1 government power, In but not 5K1.1 context. v. Anza lone, (8th duty, to make Cir.1998), substantial F.3d 940 assistance mo we held tion). government that the cannot base its deci sion to withhold a substantial assistance possess Prosecutors do not solely motion on factors unrelated to the completely unfettered discretion. For ex quality of a defendant’s assistance. Id. at ample, power to file a 941. “Because sentencing is ‘primarily a motion, section 5K1.1 prosecutor’s like a

judicial prosecutor’s function’ the virtually decisions, other subject to constitution unfettered discretion under 5K1.1 [to file al Id. pre constraints. These constraints a motion for departure] downward is limit vent government from using race or ed to the substantial assistance issue.” Id. religion or a rationally reason not related (quoting States, Mistretta v. United to a legitimate government end as the 361, 390, U.S. 102 L.Ed.2d basis for (1989)).6 deciding whether or not to file a In short because section 1840; motion. Id. at states, 5K1.1 S.Ct. Wilk “upon motion of the govern erson, 179 F.3d at Additionally, just 1085. stating that the defendant pro has as a assistance,” vided defendant expect substantial commentary if to that he agree section notes that violates the ment, government government shall inform similarly the court bound its evaluation of assistance, by any agreement defendant’s entered into. Unit Cf. government must Johnson, (8th base the decision ed States v. 241 F.3d 1049 about whether to Cir.2001) file a section 5K1.1 mo- (stating that an agreement be- 6. We clarified in Wilkerson that the to make a Anzalone substantial assistance motion was largely decision was based on the entirely based on a factor unrelated to Anza- conceding (1) key points: two that Anzalone Wilkerson, lone’s assistance. 179 F.3d at could make a showing substantial of substan- assistance; (2) tial that the decision not

763 competent are to under- ysis that in the courts and a defendant prosecutor a tween 7 to enter take.” Id. induces the defendant any way government plea creates duties Maldona The Guidelines were not meant to satisfy); States v. United

must (10th 1182, do-Acosta, 1183 Cir. the usual discretion of the infringe 210 F.3d 2000) branch, Deitz, (stating that a district United States v. executive (8th discretionary Cir.1993), government’s 443, examine F.2d 448 and con 5K1.1 substantial refusal to file section judicial review of templating an if that refusal violates motion assistance section 1B1.8 extending decisions about government between the agreement in us that protection these cases convinces defendant). However, con these apply. this same rationale should As we not prosecutor originate straints on the noted, say nothing the Guidelines Guidelines, rather from con but immunity how often section 1B1.8 about In Re principles. or contract stitutional disparity Faced with a granted. should be Case, at 142. limita 181 F.3d Such Sealed prosecutorial policy between the North apply equally conduct tions on Iowa, ern Districts of courts and Southern Allegations context. in the section 1B1.8 prosecutor’s which way knowing have no subject grounds these are of violations on reaching agreement proper office is showing to the same substantial threshold begins grant of times. If a court number 5K1.1 required be the section as would upon an interdistrict ing departures based Wade, 186, 112 504 U.S. at context under practices concerning allegation No such or evidence S.Ct. 1840. it protection, IB how will it know when in this case. produced has been corrected the mistake? Must has begin District the Northern D. Prosecutorial Discretion at the to section 1B1.8 agreeing Supreme “[i]n Court has noted Or, rate as the Southern District? same justice system, Govern- our criminal na according it to some should be done “broad discretion” as retains could com average tional that the court Wayte v. United prosecute.” whom to protec to section 1B1.8 pute? agreeing Is 598, 607, 1524, States, 105 S.Ct. 470 U.S. percent of twenty thirty tion in ten or (1985) (quoting United L.Ed.2d 547 enough? the cases 380, 11, Goodwin, 368, n. 457 U.S. permutations the various Considering (1982)). 73 L.Ed.2d these departures on possibilities on the “rec- partially rests This discretion effort to grounds persuades us prosecute ognition that the decision improperly infringe police this area would judicial ill-suited to review.” particularly prosecutor’s of- upon the discretion of the strength of the factors as the Id. “Such priorities, enforcement fice to determine case, deterrence prosecution’s general allocations, decisions and other resource pri- value, enforcement the Government’s institutionally unsuitable are which courts orities, relationship to the the case’s overriding goal of uniformi- to make. The plan are overall enforcement Government’s the Guide- through the use of ty sought anal- susceptible to the kind of readily not bring about whom to cutor's decisions applying principles courts have these In court, prosecutor's charges against decisions about in federal United States concluded that a 1998), (1st proceed federal court or Dis whether to Snyder, Cir. 136 F.3d Clark, court, States v. trict of Columbia grounds departure. (D.C.Cir.1993), prose and a adjustment acceptance give sentencing a downward lines cannot courts carte responsibility. authority See 8th Cir. R. 47B. blanche to intrude prosecutors in this instance. III. CONCLUSION

E. Other Claims opinion, In accordance with this we over- portions

1. Clark rule those of the district court's opinion finding authority depart it had to government appeals the dis disparity from the Guidelines based on the compel trict court decision to an 18 U.S.C. practices regarding pro- section tBl.8 3553(e) depart § motion to below the stat tection in the Northern and Southern Dis- utory mandatory minimum sentence in tricts of Iowa. We affirm the sentences of Subject excep Clark's case. to limited Ringis, Buckendahl, Valdivia-Cardona, and tions, sentencing depart Johnson. mandatory below the minimum sentence improperly departed by government; The district court absent motion howev downward from a base offense level of 36 er, give this does not determining general power length to 28 in Clark's sentence. We to control the reverse and remand Clark's case for re- Stockdall, sentences. United States v. opinion. (8th Cir.1995); in accordance with this F.3d 1260-61 see also Anzalone, (reaffirming 148 F.3d at 941 HEANEY, Judge, dissenting. Circuit extending Stockdall and its rationale to agree 5K1.1). I that the sentences for Bucken- U.S.S.G. dahl, Ringis, Johnson, and Valdivia-Cardo- This issue arose at Clark's sen na should be affirmed for the reasons stat- tencing as a result of the district court's majority's opinion. disagree ed in the I perceived authority downward majority, however, regard with the with disparate availability based on the of sec Clark, respectfully and for that reason I protection. tion lB 1.8 Because the district dissent. The Northern District of Iowa's possess authority court did not to de denial of 1BL8 to Clark re- part on the basis of 1B1.8 differences and sulted in an increase in his base offense remanding sentencing, we are for a new 36, yielding significant level from 28 to concerning the factual circumstances a prejudice Accordingly, to him. I would mandatory minimum sentence are altered departure granted affirm the downward considerably. Therefore, unnecessary it is Clark the district court. appeal. to further address the issue in this goal of the Guidelines was to elimi- sentencing. nate Then-Chief 2. Johnson Judge Breyer explained that the Commis- Johnson asserts that the false state- sentencing disparity sion's research in suppression hearing ments he made at his region showed that "the in which the de- qualify should not for a two-level obstruc- likely change fendant is convicted is length they tion enhancement because were not approximately of time served from argues "material." He also that he should six months more if one is sentenced in the adjustment have received a downward for South to twelve months less if one is sen- acceptance responsibility. Stephen tenced in Central California." thoroughly reviewing Breyer, Sentencing After the briefs The Federal Guide- record, Key Compromises upon and the we affirm the district lines and the imposition They Rest, court's of the enhancement for Which 17 Hofstra L.Rev. there is as much re- n justice grant (1988). Regrettably, obstruction of and refusal to leniency eligible defendants who are sentencing in now disparity gional sentencing. in and enact- the creation prior was to there and Sentencing Commission of the fulfill prosecutors It that is essential disparity, that origin The of Guidelines. in a manner which best fur- their duties to however, judiciary the shifted from has government’s interests. Con- thers the prosecutors. Clark’s appointed politically that 1B1.8 explicitly has stated gress example of perfect a circumstances endeavor; protection such is facilitates this phenomenon. this justice. It promotion to the of requisite prosecutor that a can goes saying without of Iowa has District The Northern he or in an individual case that she decide grant eligible refusing of to policy blanket depar- request downward going is not while its protection, § 1B1.8 defendants prosecutor nor neither the ture. pro- routinely district to the south sister right under a the court has the district majority do the protection, as vides such uniformly sentencing guidelines regime to na- ninety-four federal districts of the apply refuse to a section Guidelines forcing has the effect of policy This tion. impor- has deemed the Commission mini- mandatory to serve defendants tant. sentence, increasing the sentences mum themselves who incriminate

of defendants that results disparity sentencing with infor- providing when District of Iowa’s blan- from the Northern oth- unlawful conduct of mation about the every ket denial in the Similarly situated defendants ers. judicial as the discretion bit as offensive of Iowa Districts Northern and Southern vehemently rejected Congress so prosecuto- differently due are sentenced If we it created the Guidelines. when rial discretion. and their live with the Guidelines must insist policy objectives, we must Congress majority asserts that was them. I would application of even-handed sentencing with unconcerned court’s down- therefore affirm the district from the exercise of arising departure. ward otherwise, Judge I believe discretion. supports my conclu- Wilkins

William W. sys- that the Guidelines

sion. He writes against pos- provides “protections

tem prosecutors’ undue influence

sibility of plea prac- charging and other

through Heaney, Judge America, Response tices.” UNITED STATES (1992). Fur- L.Rev. Am.Crim. Appellee, thermore, implies discretion he prosecutors may have sentencing that Ricky DAVIS, Appellant. implementation gained with No. 00-3439. the courts’ abdica- results from Guidelines authority to control tion of its own Appeals, United States Court of, of, availability perhaps the fairness Eighth Circuit. Judge Id. at 805. True to plea bargains. April Submitted: admonition, majority has sab- Wilkins’s 31, 2001. May Filed: fair duty to ensure judiciary’s otaged by authorizing Northern District the time served uniformly increase Iowa

Case Details

Case Name: United States v. John Buckendahl

Court Name: Court of Appeals for the Eighth Circuit

Date Published: May 31, 2001

Citation: 251 F.3d 753

Docket Number: 00-1001, 00-1057, 00-1151 and 00-1266

Court Abbreviation: 8th Cir.