*1
1041
Murрhy’s
is that
rigged
defense
he had no
on the project,
bids
later inform-
ing Murphy that
knowledge prior
“an
to the
accommodation”
submission
had
been reached on the bid. Certainly there
illegal
bids that an
arrangement
been
had
was an agreement to
an
commit
unlawful
reached. Yet
conspiracy
Count II is a
act, Murphy
conspiratorial
shared in that
count,
long
and as
Murphy agreed
with
objective, and other members of the con-
Trepte’s plan
rig
meeting
to
the bid at his
spiracy committed overt acts in furtherance
Kale,
with
Murphy is liable even under the
of the agreement.
Hooks,
See
771 F.2d at
pre-1986 version of the False Claims Act
944. These facts are sufficient
to find
applicable to this ease. He need not have Murphy liable on the conspiracy count
aas
every
known
arrangement,
detail of the
nor matter of law.
participated in the
meeting
actual
to be
“One of the principal purposes of the
liable
conspirator.
as a
summary judgment rule is to isolate and
dispose
factually
unsupported
Although
claims or
the essence of conspiracy is
defenses, and we think it should be inter-
agreement, an express agreement
is not
preted
way
accomplish
allows it to
necessary
prove
a civil conspiracy. Hob
purpose.”
Corp.
Catrett,
Celotex
v.
Wilson,
1,
(D.C.Cir.1984);
son v.
787 F.2d
51
317, 323-24,
477
2548,
2553,
106 S.Ct.
874,
ard
v. Argento, 699 F.2d
Len
(1986)
91
(footnote
L.Ed.2d
omitted).
(7th Cir.1983).
Tacit understanding,
Murphy’s
inability
current
to recall the sub-
time,
created and executed over
is enough
stance of
Trepte
conversations with
agreement
constitute
even absent Mahoney fails to convince me that he was
personal communication. Direct Sales Co.
conspiracy
Trepte
States,
703, 714,
v. United
319 U.S.
63 and Kale described in
legal proceed-
earlier
1265, 1271,
S.Ct.
the defendant did not personally commit
the acts. States, v. United Poliafico 97, (6th Cir.1956). majori As the
ty’s opinion indicates, conspirator “[e]ach America, UNITED STATES of need not have all known of the details of Plaintiff-Appellee, illegal рlan all participants Hooks, involved”. 935, Hooks v. 771 F.2d DAVERN, P. John (6th Cir.1985). Defendant-Appellant. I genuine find no issues of fact material No. 90-3681. remaining question on the conspir- States Court Appeals, United acy’s existence Murphy’s actual knowl- Sixth Circuit. edge of agreement its existence Argued Feb. 1991. participants. its That he tried to insulate Decided June 1991. liability by himself from delegating respon- sibility to his subordinate Rehearing Granted; does not make En Banc any culpable. Judgment him Decision and less He Vacated Trepte told Sept. (Murphy) he “help would with Common- (the wealth” competitor) Trepte any had
problems with the bid. After this conver-
sation, Trepte went Chattanooga *2 (ar- Bobula, Atty.
Marilyn A. Asst. Ohio, Cleveland, plaintiff-appel- for gued), lee. (argued) Office Rosenkranz
E. Joshua City, Defender, York New Appellate defendant-appellant. for MERRITT, Judge, and Before Chief JONES, Judges. Circuit KENNEDY and MERRITT, Judge. Chief in this before us The issues pled guilty in which the defendant appeal (1) are as follows: possession of cocaine steps sequence whether Sentencing by prescribed case, followed in this for use gov- Court, consistent District (2) sentencing, and erning statute on “taken into has the Commission whether increased and mandated consideration” penalties “aggravating powdered plaster two circum- paris, which the stances,” (a) namely larger agent undercover possessing apparently passed off to him According as cocaine. powder parties, to the surrounding volume white quantity major selected makes a (b) differ question, attempting cocaine un- *3 ence in imposed the sentence under the buy successfully to more cocaine than Guidelines—the difference between a mini actually possessed. amount We reverse mum year sentence of 1 and 3 months for sequence because the Commission’s of sen- grams 85 4 years and 3 months for tencing steps comport does not with the 1,070 either 500 or grams. The District governing statute and because the two diligently Court separate conducted three “aggravating presented by circumstances” hearings on the matter reluctantly fol government have not been “taken into lowed the probation recommendation of the by consideration” the Commission in man- give office to the defendant the maximum dating penalties in drug posses- increased probation sentence. The officers have sion cases. been by trained Sentencing U.S. Com An undercover FBI enforcement mission and apparently trying were to fol agent agreed to transfer to the defendant low Commission’s directions.1 grams $10,500, of cocaine for but agent undercover in fact transferred to the I. Statutory Framework and the (3 oz.) only grams defendant of cocaine Sentencing Sequence plastic bag placed small mix- inside a All participants in this exercise in grams powdered ture of plaster prosecutor, the defense —the paris. weight The total of the package was counsel, probation office, the District grams. appear to have assumed that the Court— series charged sentencing steps The defendant was of nine prescribed with and by the pled guilty only Sentencing “possession Commission in 1B1.1 with intent yields only one correct to distribute” of sentence for the unspecified quantity defendant, right one answer that the Dis 841(a)(1) cocaine in violation 21of U.S.C. § trict must Court find in this (1988) (“it every shall be unlawful ... to ... other case.2 parties We asked the to brief possess with intent ... to distribute” co- question ap the correctness of this caine). question put by par- us proach, and we now conclude that ap this ties is whether the defendant should be proach by advocated Sentencing Com sentenced under the Sentencing Guide- mission is enabling inconsistent with the only lines grams for the 85 actually pos- governing guideline statute sentencing. sessed, insists, or, as the defendant as the insists, government grams for the First, he statute, governing 18 U.S.C. 1,070 buy grams, tried to and the including 3553(a), Sentencing enacted as the Re- 1. Chief Koenning Probation Officer acceptance responsibility, bringing Keith A. him to a Regno and Probation Officer William E. Del guideline range level and a of 15 to 21 presentence report stated opinion in the their months.” level, carrying that the base offense a minimum months, “26, years sentence 4of and 3 was sequence 2. The steps pre- of nine pursuant 1.1(c) Sentencing 2D§ [of (1) "applica- scribed the Commission are find drug quantity Guidelines] table for an amount section,” (2) guideline ble offense find the "base grams kilograms," of cocaine between 500 and 2 level,” (3) adjust level for char- grams. rather than level 16 for less than 100 defendant, (4) acteristics of victim and role of They presentence report noted at the end of the counts, adjust by grouping offense level includ- disputed that "the amount of revolves ing uncharged or unconvicted "relevant con- attempted milligram around the issue of the duct,” (5) adjust “acceptance offense level for defendant, purchase by resulting pre- in (6) responsibility,” adjust history for criminal sentation to the defendant undercover FBI defendant, (7) apply sentencing grid impris- agent for package containing grams of a 984.96 onment, (8) fines, apply sentencing plaster paris rules on and 83.51 of cocaine. If restitution, (9) probation parole, argument adjust the defendant's upon only re- for calculation based "departures." sequence, the actual sult for amount of cocaine includ- this package ed in this binding, was found to be Court has little discretion of substance until it place would points him at a level less 2 step. for reaches the last has omitted mandatory provides form ofAct for instructions steps. The these Dis in the first language qualitative mention these sentencing do not the facts and consider Court should trict concerning punishment considerations necessary than greater “not fix a sentence importance gave primary Congress which “purposes” group of comply” statute. framing the will (a) “just punishment”
factors:
offense,” (b)
of the
seriousness
“reflect the
has considered
Second,
the Court
after
con
criminal
“deterrence of
need
light
of these nonmechanical
the facts
public
protect the
duct,” (c)
(b)
need to
Congress in subsection
principles,
defendant,” (d)
presump-
crimes
from “further
then creates
rebuttable
statute
*4
the defendant
Sentenсing
to rehabilitate
Guide-
proposed
the need
the
tion that
other correc
and
in
“just punishment”
...
a
through “educational
such
lines create
(e)
availability of
treatment,”
cases,
the
“not
punishment
that is
sentencing
tional
a
of sentences.
statute
necessary.”
forms
the
alternative
than
But
greater
various
according to
In
presumption significantly.
the facts
duty
consider
qualifies
This
to
(b),
“just punish
the
impose a
of subsection
steps and to
the first sentence
these
than neces
court is
greater
“not
statute states
ment” which
is in
the sen
there
duty required
by
guidelines
the
first
not bound
sary” is the
mitigating cir-
guide
aggravating
by
statute.
the case “an
tencing
the
court
kind,
degree, not
a
a
or to a
in
statute as
the
cumstance
mentioned
lines
not
by the
adequately
in
into consideration
until later
subsec
taken
sentencing imperative
formulating
the
Sentencing
sentencing court has
Commission
(a)(4) after the
tion
specifically
the statute
And
light
guidelines.”
of these
the facts in
first considered
scope
the Commission
the
of what
confines
principles.3
first
qualitative
994(a)(2)
(b)
on the date
3553(a)
that is in effect
U.S.C.
is as follows:
3. The full text
sentenced;
the defendant
imposing
(a)
to be considered
Factors
(6)
sentence
to avoid unwarranted
the need
sentence.—
among
with similar
disparities
defendants
sufficient,
impose a sentence
shall
The court
guilty
found
of similar
records who have been
necessary,
comply
greater
to
than
but not
conduct; and
(2)
paragraph
purposes
set forth in
with the
any
(7)
provide restitution to
the need to
court,
determining the
the subsection.
offense.
victims
the
imposed, shall con-
particular
to be
sentence
imposing
(b)
guidelines
Application
sider—
a sentence.—
(1)
of the of-
nature and circumstances
the
kind,
impose
the
a sentence of
The court shall
history
characteristics of
the
fense and
range,
to in subsec-
the
referred
and within
defendant;
the
(a)(4)
that there
the court
tion
finds
unless
(2)
imposed—
for the sentence
need
the
mitigating circum-
aggravating exists an
offense,
(A)
of the
to reflect the seriousness
kind,
degree,
adequate-
or to a
stance of
law,
provide
respect
and to
promote
for the
to
Sentencing
by
ly
consideration
the
taken into
just punishment
the
offense.
formulating
guidelines
Commission
(B)
adequate
crimi-
to afford
deterrence
different from
in sentence
that should result
conduct;
nal
determining whether a cir-
that described.
(C)
protect
public
further
from
adequately
into consid-
taken
cumstance wаs
eration,
defendant;
crimes of
only the sen-
the court shall consider
(D)
provide
with needed
the defendant
statements,
policy
tencing guidelines,
and offi-
training, medical
or vocational
educational
care,
Sentencing
commentary
Commis-
cial
treatment
in the
other correctional
applicable
of an
sentenc-
sion. In
absence
manner;
most effective
ap-
impose
ing guideline,
an
the court shall
available;
(3)
kinds of sentences
sentence, having
regard
propriate
due
for the
(4)
and the sentenc-
kinds of sentence
(a)(2). In the
purposes set forth in subsection
applicable
ing range
cate-
established for the
sentencing guideline
applicable
absence of an
by
gory
applicable
committed
of offense
petty
than a
case of an offense other
in the
category
as set forth in the
of defendant
offense,
regard
also
due
the court shall
have
Sentencing
by
that are issued
imposed
relationship
994(a)(1)
for the
sentence
pursuant
to 28 U.S.C.
Commission
by guidelines applica-
prescribed
sentences
date
defen-
are in effect on
and that
offenders, and to
sentenced;
ble to
offenses
similar
dant is
Sen-
applicable policy
(5)
by
statements
pertinent policy
any
issued
statement
tencing
Sentencing
pursuant
to 28
Commission.
having
can be
“taken
viewed
into consid- of human
potentially
conduct
relevant to a
by limiting
eration”
to the “circum-
sentencing decision.” If the District Court
stances” stated in the
them- determines at the outset that the facts and
policy
selves
statements and offi-
circumstances
the case should render
commentary
cial
of the Commission.
If
inapplicable,
the Guidelines
the Court
any
there is
case
“circumstance of a
“shall impose an appropriate sentence hav-
kind,
degree
adequately
or to a
taken
ing
regard
... due
for the
relationship
into
consideration
Com-
imposed
pre-
sentences
mission,” the statute instructs the District
by guidelines
scribed
applicable to similar
Court to return to the first principles out- offenses.”
compare
The Court should
(a)
lined in subsection
as follows:
proposed
Commission’s
offense level for
In the
applicable
absence of an
sentenc-
the crime to the first principles
outlined
ing guideline, the
court shall
Congress and determine at
the outset
sentence, having
appropriate
regard
due
whether the
proposed
Commission’s
level
purposes
for the
set
forth
subsection
for the
adequately
crime
takes into account
(a)(2)
four considerations or factors
[the
the circumstances of
light
the case in
enumerated
the text
In the
above].
need for a “just punishment
greater
applicable
of an
absence
*5
than necessary.”
guideline in the case of an offense other
offense,
petty
than a
the court shall also
The sentencing court
keep firmly
should
regard
have
relationship
due
for the
in mind that
the
proposed
Commission’s
the
imposed
pre-
to sentences
offense level for the crime is simply a
by guidelines applicable
scribed
to sim- proposal to the courts
weighed during
to be
offenders,
ilar offenses and
to the
and
qualitative
the initial
steps in the sentenc-
applicable policy statements of the Sen-
ing sequence.
tencing Commission.
In its “Application
ap-
Instructions” for
Thus, the statute itself establishes the
plying the
1B1.1,
Guidelines contained
§
sentencing sequence
way
and the
a district
the Commission does not call attention to
go
court
applying
shall
about
the Sentenc-
statutory requirement
3553(a)
the
inor
§
ing Guidelines. The Commission does not
3553(b)
the first sentence of
that
the
§
the congressional
follow
scheme. Two able
District
Court determine
a circumstance
scholars, the editors of the Federal Sen-
exists that
inap-
would make the Guidelines
tencing Reporter, Professor
Freed
Daniel
plicable.
Applicable
Instructions coun-
of Yale and Professor Marc Miller of Emo-
sel the court to consider such a circum-
ry,
recently explained
have
that the Com-
stance,
all, only
possible
if at
as a
“depar-
mission
“seemingly
has
reversed the sen-
step
process
ture”
9 at the end of the
tencing sequence
by Congress.”
intended
already
after the
has
court
found that an
Fed.Sent.R. 237
Under the stat-
ute,
“applicable
the District Court
guideline
should first consider
section” ex-
light
qualitative
facts
standards
intervening
ists and
other
“steps”
seven
designed
punishment
to insure
greater
“not
completed
have been
that assume the exist-
necessary”
than
instead
waiting
until
ence of an applicable section and offense
end of the
very
nine-step sentencing
level.
the statute itself
in-
Because
states
process
“departure”
to determine if a
is
stead
“applicable sentencing
that
if an
permissible,
Sentencing
as the
Commission guideline” does not
exist
court is not
Rather,
directs
IB 1.1.
the court
§
guidelines,
bound
logically
this de-
should dеtermine at the outset of the sen-
termination should be made at the outset
tencing process
presents
whether the case
and
accepted
the court has
after
adequately
“not
circumstances
into
taken
proposed
guideline
“applicable offense
sec-
by the
pro-
consideration”
tion” and “offense level” and has complet-
posing
crime, keep-
its offense level for the
eight
steps
assumption
ed
other
ing in mind the Commission’s own admoni-
guideline
applicable.
is
tion on
1.6 of
page
its Introduction that “it
3553(b)
prescribe
legislative history
single
difficult
set of
states
guidelines that encompasses range
unambiguously
vast
the District Court
sentencing,
section
purposes of
there
whether
consider
first
should
court
require the
3553(a)
seem to
would
which make
facts
circumstances
lenient sentence.
in-
a more
sentencing level
proposed
Commission’s
history estab-
might
be ar-
legislative
interpretation,
appropriate.
Such
considering
nature
Sentencing
“the
an order
gued,
lishes
is inconsistent
offense,” includ-
judicial
limit
and circumstances
intention to
Act’s
Reform
mitigating
aggravating or
argument,
ing
pertinent
sentencing.
“a
That
discretion
Court shall
The District
however,
convincing.
circumstance.”
The Sentenc-
is not
decide
first
then
perform
limited,
function
but did
ing
Act of
Reform
sentence outside
“impose a
whether
eliminate,
sentencing discre-
judicial
suggests
Report
Senate
guidelines.”
3553(a)
give the
does
tion. Section
Referring
sequence.
proper
sentencing,
court unlimited discretion
ex-
(b),
Report
3553(a)
the Senate
depart
the court to
rather authorizes
but
plains:
only if the court
guidelines
from
impos-
judge, before
requires the
The bill
called for
that the sentence
finds
history and
sentence,
to consider
ing
necessary to
greater
than
offender, the na-
of the
characteristics
sentencing.
purposes
serve
offense,
ture
circumstances
31,947 (1987). The Sentenc-
Cong.Rec.
He is
sentencing.
purposes
to follow this
has declined
ing Commission
determine
then to
The view
language.
apply to
policy statements
Commission,
the remarks
as reflected in
may decide that the
he
the case. Either
floor, contradicts
on the Senate
senators
appropriately
recommendation
Representatives
of the House
the view
charac-
and offender
the offense
reflects
33,106-10
Cong.Rec.
on this matter.
*6
according
impose sentence
teristics and
or he
guideline recommendation
tо the
guideline application
nonqualitative
The
fail to
guidelines
that
conclude
Sentencing Com
by the
process advocated
pertinent aggravat-
adequately a
reflect
mission,
steps out
the initial
which omits
and im-
circumstance
ing mitigating
indi
designed to insure
Congress
by
lined
guidelines.
outside
pose sentence
nec
“not
than
greater
vidualized sentences
added.)
(Emphasis
4
by
deference
essary,”
insures maximum
Sess.,
98-225,
Cong.2d
re-
98th
S.Rep. No.
complex code
judges to
Commission’s
Cong. Admin.
printed in
U.S.Code
&
1984
out
that
to mete
interlocking rules
seek
of
3182,
News
3235.
crimes.
for different
exact punishments
section-by-section analysis of
The
complex
of a
application
mechanical
a
Such
Sentencing Re-
to the
1987 Amendments
more sen
delegating
the effect of
code has
Repre-
by the House of
form Act of 1984
sentencing bu
responsibility to
tencing
a
view
the cor-
that
sentatives reinforces
probation officers who
reaucracy—to
steps must
sequence
rect
of
to
by
trained
the Commission
turn are now
3553(a):
take into account
first
§
Instruc
steps
Applicable
apply the
by
3553(a) as enacted
the Sen-
Section
responsibility
It reduces the
tions.
requires
tencing
Act of
Reform
result,
empha
and does not
judge for
factors,
(1) consider several
the court
3553(a):
duty under
size
court’s first
sentencing, and
including
purposes
punishment” which is
“just
sufficient,
(2)
but not
“impose sentence
necessary
comply”
greater
than
“not
necessary, to
with”
greater
comply
than
objectives established
with the
Thus,
sentencing.
if the
purposes
by Congress.5
the sentence called
court finds that
statutory
interpret
courts
sentencing guidelines is
Unless
by
applicable
in the more
guideline application process
necessary
comply
greater than
devising
Congress
punishment
for the
Report
5.
the levels of
4.
Senate
also states that
imposed
guidelines
guidelines,
“does
that it "ana-
not intend that
the Commission states
fashion,”
10,000
nor
[pre-guidelines]
mechanistic
"eliminate
lyzed
drawn from
data
thoughtful
imposition of individualized sen-
"departed
pre-sentence investigations” but
from
Id. at
tences."
3553(a)
suggested in
flexible manner
and of
the two aggravating circumstances
history,
legislative
government
Justice Scalia's which the
asserts should raise
(1)
forecast
dissent Mistretta v. United
namely:
offense level to
the fact
States,
647, 675,
grams
488 U.S.
S.Ct.
that the 85
of cocaine was surround-
(1989),
L.Ed.2d 714
will have come true.
by
grams
powdered
(2)
ed
plaster,
Although they
“given
the modest name
the fact that the
negotiated
defеndant
‘guidelines’ they
have the force and purchase, although
possessed,
never
[will]
laws,”
effect of
id. 109 S.Ct. at
and grams.
government asserts,
and the
responsibility
judges by
vested in
Con- District Court and
probation
its
officers
gress
“just punishment”
agreed,
to insure a
will
that both of
aggravating
these
cir-
judiciary
have been removed from the
by
cumstances are covered Guideline 2D1.-
delegated
body
1(c)(9),
“completely
to a
divorced
specifies
an offense level of
any responsibility
from
for execution of the
possession
2,500
26 for
grams
500 to
adjudication
private rights
law or
under
government
cocaine. The
argues
the law.”
at 679.
aggravating
Id.
these
circumstances mean that
the case is not
covered
offense level 16
legal
effect of the more flexible of the Guideline for
grams,
less than 100
approach
to the
outlined here is
2Dl.l(c)(14).
Guideline §
mandatory
to transform
rules into the
”
‘guidelines’
more “modest name
in those
A. The Plaster of Paris
proposed
cases which the Commission’s
government
first submits that
“greater
sentence is
than neces
the defendant should be sentenced for the
sary”
parties present
or in which the
weight
plaster
paris.
It is not
legitimate “aggravating
mitigating
cir
clear what the Guidelines intend in this
kind,
degree,
cumstаnce of a
or to a
case or whether the Commission considered
adequately
taken into consideration.”
respect
posses
circumstance. With
presented,
When such a circumstance is
plaster
sion
as an
inapplicable
become
as mandato
circumstance,
aggravating
the Guidelines
ry rules
to be followed
the District
say only that
weight
“the
of a controlled
regard
judgment.
Court without
to its own
substance
set forth
the table refers to
*7
Instead,
guidelines
the
gener
become more
weight
any
the entire
mixture or sub
principles
al
to be used in
containing
stance
a detectable amount of
light
principles
out
the controlled substance.”6 There is no
3553(a).
lined
§
evidence that the Commission considered a
case in
the
separately
cocaine is
Aggravating
II. The Two
Circumstances wrapped
plastic bag
in a
inside a mixture
manner,
If
apply
we
the statute in
plaster
alloyed
this
and not adulterated or
question
the
guidelines
then is whether the
If
plaster.
grains
with the
the
of cocaine
specify
applicable
an
grains
sec-
mixed
plaster,
were
with the
the
range
tion or
that takes
government
into account either
ground
would be on firmer
points
impor-
consequence
the data at
prison-
different
for various
As a
the number of federal
Sentencing
tant
reasons." U.S.
increasing
approximately
Commission
ers is
at the rate of
Manual,
pp.
year.
Guidelines
Introduction
1.3-1.4
15% a
Id. at Table XVII. See also Ober-
(Nov.
1990).
lies,
The
have resulted in
Reviewing
Sentencing
the
Comm'n’s 1989
greater
imprisonment
(Nov.-Dee.
much
reliance on
and on
Report,
Annual
3 Fed.SentR. 152
longer
formerly
sentences than was
the case.
1990) (“Though
analy-
the
no
Commission offers
example,
sis,
For
and
before the
these
numbers seem to confirm tremen-
effect,
guidelines came into
50% of federal crim-
projected growth
prison popula-
dous
in Federal
imprison-
inal defendants were sentenced to
key
tion—one of the
unexamined issues of
probationary
ment and
received
50%
fines and
guideline sentencing”).
or other alternative sentences.
In 1989 under
Indeed,
the
sharply
87% of defendants were sen-
the Seventh Circuit divided
on
imprisonment.
question involving
weight
tenced to terms of
a related
the
of LSD
Commission,
Report
sentencing purposes,
Supreme
1989 Annual
42-
for
and the
Court
43, 52,
V,
(1990) (Tables VI,
VIII).
Fig.
granted
question.
X and
has
certiorari
to resolve the
language
clear from
Guidelines
considered
Commission
arguing that
Commentary
and
Commission
whether the
District Court
and
this circumstance.
concluding
erred
intends in such a case that
defendant
probation
officer
sentencing sequence under
that
sentenced or intends that
defendant
be
me-
sentencing guidelines
unindicted,
and the
statute
not be sentenced for
other
of 26
an offense level
chanically requires
We conclude that the
unconvicted offense.
for
reason.
ambiguous,
position is
Commission’s
has
been
aggravating
circumstance
not
Intent to
B. The Defendant’s
fully
into account.
taken
Buy 500 Grams
is
clear that the
con
It
guidelines are more convoluted
buy
to
more
defendant’s intent
sidered a
We
aggravating circumstance.
the second
aggravating
an
circumstance for
cocaine as
was
keep in mind that the defendant
must
simple
in a
which he can be sentenced
pled guilty only
pos-
to
with and
charged
Obviously the
possession case.
defendant
attempt.
session,
conspiracy or
and not
possess
did
ever
not in fact
what he
did
the inchoate
The Guidelines treat
him
get, and to sentence
for that unconvict-
“conspiracy”
“attempt” and
crimes of
only way
legal
crime is a
fiction. The
ed
section,
2D1.4,
separate
one
§
con
the Commission could be said
have
section,
separаte
possession
crime of
templated sentencing the
defendant for
question
2D1.1. The
is whether
§
unpossessed
uncharged
additional
clarity how it
stated with
Commission has
an aggravating
amount as
circumstance
is
proposes to
with a defendant who
deal
find
intent
be to
that
defendant's
would
only
posses
charged with and convicted
buy
more
“relevant conduct” under
who
quantity
sion
a small
but
lB1.3(a)(2), which
cross-references
§
conspiracy
other
also
have committed
problem
3D1.2(d).7
analyze
We will
example,
attempt crimes. For
commentary
in terms of
Commission’s
attempts to
transaction a defendant
conduct.
on relevant
buy
possess
kilos
cocaine
fact
but
government’s theory
the de-
es,
pleads guilty
pos
is indicted for
not,
been,
fendant could have
but was
ounce, has the
only
session of
Commis
charged
"attempt”
or convicted of an
sion made it clear either in the Guidelines
“conspiring”
another to
possess, or
Commentary
the defendant
Therefore,
possess
grams.
the addi-
under
2D1.4 for
must also be sentenced
tional 415
over and above
purchase
“attempt”
“conspiracy”
actually possessed must be
amount
used
pos
to the one small
kilos
addition
de-
aggravating
circumstance
he is
session offense for which
convicted?
cir-
fendant must
sentenced
these
Commentary
Guidelines
possession
*8
part
cumstances as a
of
question
clear on the
of the treatment
aggravating
this
circumstance.
It is not
offense.
Marshall,
(2) solely
respect
to offenses of a char-
See United States v.
7. The sections not Groups Closely-Related Counts § 3D1.2. They say: follow. involving substantially All the same counts (Factors De- § Conduct that 1B1.3. Relevant single grouped together be into a harm shall Range) termine Guideline substantially Group. Counts involve the same Conduct) (a) Chapters (Offense Two meaning this harm within the rule.... speci- (Adjustments). Unless otherwise Three (d) When the level is determined offense fied, (i) level the base offense where largely total amount of basis of the guideline specifies less, of- more than one base quantity a harm or substance level, involved, (ii) specific aggregate offense characteristics fense measure of some other Two, (iii) harm, Chapter ongoing or if the behavior is and (iv) cross references Three, guide- adjustments Chapter be and the offense shall continuous nature following ... line written cover such behavior. determined on the basis of the is Commentary It is not clear to us that the Commission goes say on to that “in an case, intended in each case—and the Commission embezzlement example, embez- zled anywhere clearly say may specified not it in- funds that not does that be in any count of conviction are punishment by tends—to raise the includ- nonetheless includ- determining ed in the offense ing mandatory aggravating they a level as circum- part were of the same course of conduct or uncharged stance conduct that amounts to part of the plan same scheme or as the conceptually a different offense from the count of conviction.” But: Attempts conspir- offense of conviction. hand, On the other in robbery are
acies inchoate crimes not of the same case in banks, which the defendant robbed two pos- character as the substantive offense of money amount of taken session, in one rob- they not covered bery would not be taken into account in guideline same section. determining range for the general theory, sentencing As under robbery, other even if both robberies the Guidelines limited to is the “offense of part were of a single course of conduct lB1.2(a). conviction.” But 1B1.3 on § § (This or the same plan. scheme or is limited, permits “relevant conduct” true whether the defendant is convicted uncertain, though charge deviation from robberies.) of one or both sentencing. “Commentary” Note 1B1.3, 1.17, pp. 1.19. The Guidelines and § the “Background” following comment Commentary do say what sentencing attempt explain 1B1.3 the Commis § principle leads the Commission to treat theory, reasoning ambiguo sion’s but the robbery bank leniently more drug than us.8 sales and purposes embezzlement for “Commentary” “Background” “relevant conduct.” do not indicate conceptually that distinct true, It is dissenting as our colleague They only crimes should be conflated. indi- maintains, that the relevant conduct provi- may cate that the same crimes sometimes Application sions in Note 12 to say 2D1.1 conflated, be conceptu- but even here some “quantities specified ally (e.g. identical crimes robbery) bank in the count of may conviction con- be may not be conflated. No principle stated determining sidered in the base offense distinguishes conceptually those identical level,” say they but it does not “may” that may crimes which be conflated from those be if the considered additional in- amounts may that not. The relevant commentary offense, volve a conceptually drug distinct cases, says that in let alone they “must” be considered. engaged where the defendant in three true, maintains, It is also as the dissent 10, 15, drug sales of and 20 says 1B1.3 that “all acts and omis- cocaine, part of the same course of sions that were of the same course of conduct or plan, common scheme or sub- conduct or common plan scheme or as the (a)(2)provides quan- section that the total considered, offense of conviction” tity (45 grams) of cocaine involved is to again language ambiguous but be used to determine the offense level necessarily does require conflating con- even if the defendant is convicted of a ceptually distinct unconvicted offenses. single charging only count light commentary quoted above, one of the sales, necessarily require do not even *9 conflating offenses of the same character. it say but does not that unconvicted con- spiracy or distribution offenses should be ambiguity We believe that characterizes possession conflated with a many aspects offense. The provi- of the relevant conduct Judge Breyer 8. former Key Compromises Guidelines and the —and Commissioner— attempted explain "compromise” Rest, Upon They has the be- Which 17 HOFSTRA L.REV. "charge sys- tween “real offense” and Judge Breyer's general point offense” 12 Since undergird offense, tems lines, applied of which specific the Guide- must be to each we are can, course, but he unwilling simply admits that “[o]ne of to characterize Davern's con- having criticize compro- the Commission for duct purposes as “relevant” for enhancement wrong point.” Breyer, mised at the The Federal without further examination.
1050 the charged with least been had at the dant said for can be The most that sions. sen to the increased giving rise offense the is Com- respect that this Guidelines sen the of the cases tence, in most and intended probably and permits mission of an additional for increased was uncharged tence additional that instances most the offense as character same fense of the aggravating as an be used should conduct example, United For convictions. of addition- the the nature circumstance of if Cir.), (6th Perez, F.2d 45 cert. 871 v. States as the the same is al of offense offense 3227, 106 910, 109 S.Ct. denied, 492 of amounts Additional conviction. the jury convicted (1989), the is the L.Ed.2d 576 possession used be can possessed posses as well as conspiracy expressed of clearly defendant no offense, there is but in correctly Court sion, District purposes the for to conflate intent conspiracy level for pos- in the offense of offenses cluded uneonvicted separate the subject the distribution, were that cocaine grams of conspiracy, 10 session, attempt, In United oth- transaction. incomplete of host an or a of enterprise, RICO criminal (6th Cir. Smith, F.2d 104 of the Com- meaning v. States drug crimes. er pos unclear, convicted was 1989), but is the defendant matter mentary this sentenced did of cocaine and the 4 ounces sessing Commission suggests that certainly pos cir- he also which amounts aggravating type additional for focus on a imposed for which was in this case No sentence presented sessed. cumstance is not covered same attempt offense offense nature of different Similarly, in both of conviction. Unit the offense section. as same (6th Ykema, 887 F.2d v. States ed Application argument that dissent’s Sailes, v. Stаtes Cir.1989), in United a sentence mandates 2D1.1 12 to Note § Cir.1989), (6th defendant F.2d conspiracies attempts and unconvicted for his sen possession convicted was unpersuasive. is also case possession in a acts for additional increased was tence says that 2D1.1 12 to Note fact that Moreover, authority of possession. negotiation involved offense “[i]f dissent, case cited Circuit Fifth substance, Appli see controlled traffic Garcia, States United Commentary to 1 of the Note cation light Cir.1989), questionable (5th now Conspiracies”] [“Attempts 2D1.4” Martin, 893 F.2d States v. of United convicted defendant that a mean does not its “con Cir.1990), expresses be sentenced should possession only an for applying about cern distrib conspiracy to aof though convicted had defendant which the for merely It attempt purchase. or an ute hold”) (“we now states convicted” been involving in the section cross-references a improper on a sentence such “ne that in which incomplete crimes choate enters defendant plea unless guilty may be elements to traffic” gotiation dif establishes stipulation that formal this means that Presumably offense. offense. ferent attempt con also convicted defendаnt the sec sentenced under spiracy should It made. should be point additional One the section and not crimes tion for these enabling statutory under the clear is not the most think that We possession. for authority has the the Commission that act position is dissent’s for the can be said or “incremental” an additional this ambiguous Commentary is conduct criminal uncharged penalty respect.9 than the character a different act allows enabling misinterprets conviction. the dissent believe We drafting Guide- to consider each of point. cases on imposing appropriateness “the dissent, lines the defen- by upon relied cases presuming con- “logic” Circuit’s resort Indeed, the distinc- Eighth noted Circuit —i.e. on the offenses conspir- the different attempt or between nection strength possession between and could tion acy, *10 reading” suggests "logical only appeal to a cross-reference— concep- connecting apply ambiguous the two in Da- Commentary in the Guidelines is too Foley, tually offenses distinct case. vern’s Cir.1990). Eighth penalty incremental for each tencing by enunciated Congress “just punishment in which a no greater case defendant is convicted than neces- sary.” multiple ... offenses committed in the conduct,” same course of 28 U.S.C. III. Conclusion 994(l) added), (emphasis enabling but the Thus we conclude that act district expressly does not authorize courts must follow process which impose an “incremental” penalty for established Congress 3553(a) conduct outside the offense of conviction. (b), as outlined above. process pro This By using “convicted,” the word Congress vides for a mandatory guidelines sentence may prevent well have intended to particular at a if, if, level but only speci Commission from ordering judges to sen fying the offense level to applied tence for unconvicted crimes for took Commission into account all of the defendant has not received notice aggravating and mitigating circumstances indictment and an opportunity defend in the case. If there is such a circumstance way. traditional It well be that account, not taken into then there is not this is one reason the Commission left the right one answer under the Guidelines. In problem open and clearly did not focus on such a case District Court “shall im “aggravating circumstances” of other pose an appropriate having due unconvicted crimes.10 regard” for the Guidelines. For the rea stated, sons we do not bеlieve that given reason the Commission for Commission has “taken into account” the rejecting system its initial of real offense circumstances in this case. The District sentencing and returning system to a Court should resentence the defendant un charge is that “the der the procedure more flexible and the practical found way no to com- qualitative standards set out in the last two bine large ... number of diverse harms 3553(b). sentences of 18 U.S.C. § arising circumstances,” in different nor a Accordingly, judgment of the District way satisfy “the need for a fair adjudi- Court is reversed and the case remanded catory procedure” “poten- because of the resentencing. tial adjudicated existence of hosts of ‘real in many typical harm’ facts cases.” Guide- KENNEDY, Circuit Judge, concurring p. Any lines 1.5. effort to take into ac- dissenting. count “hosts” of “real harm facts” that agree I with the majority plaster may constitute other uncharged, unconvict- of bag Paris in which the of cocaine was ed conspiracy offenses such as attempt concealed should not be included in the court, would counsel a like the Commission weight of the controlled in deter- substance itself, to retreat from mandatory sentenc- mining the Guideline sentence in this case. ing rules concerning such facts. Such However, the District imposed Court also facts should constitute cir- “aggravating the sentence it did because under the cumstances” weighed to be in the individu- weight Guidelines controlled sub- al case context part made a of a stance which defendant bargained for is mandatory sentencing grid. The Sentenc- of the relevant conduct to be con- ing Commission sidered in convincingly fixing itself has the offense level. Unlike majority, I stated the find no reasons for not error the District treating such computation Court’s of the base offense mandatory facts as relevant conduct which level of 26. leave the District Court no choice but to increase the It sentence. would also be I am agree unable to the majority inconsistent with first principle of sen- sentencing judge has the discre- Judge Breyer, former evant Conduct: The Cornerstone the Federal —and Commissioner — Judge Chairman of the Guidelines, Commission—Wil- Sentencing —and 41 S.C.L.REV. 495 kins, and Nagel Professor—and (1990); Nagel, Structuring Sentencing Commissioner— Discre- particular provision have not discussed this Guidelines, tion: The New Federal enabling regard act with con- "relevant J.CRIM.L. & CRIMINOLOGY883 Breyer, Steer, duct.” See supra; Wilkins & Rel- *11 a the use of example, if For account. only into considering impose a sentence to tion is the hostage taking of a or the gun, in 18 U.S.C. mentioned factors
the clear- circumstance, judge the aggravating direction the disregard 3553(a) may and taken has been that whether ly must know (b) that: setting the Guideline. in account into the a sentence impose court shall to to be range, really referred seems majority the kind, within the What finds following court the (a)(4) the Guidelines unless is arguing that subsection greater miti- than or far aggravating in a sentence an result exists there that for kind, purpose to a or the comply with necessary to circumstance gating set imposed as consid- into is to be taken adequately not degree, which Many would (a)(2). in in subsection forth by the eration the Guidelines application that should that agree the formulating are too that in sentences that from result to appears different in a sentence result that Guideline added.) lenient or too severe (Emphasis described. sentencing permit the not do that directives (a)(4) provides: Subsection historically taken factors to consider judge sentencing the kinds of sentence family as sentencing, such at into account cate- applicable established range of edu- lack responsibilities, history and appli- by the committed of offеnse gory etc., serious create opportunity, or cation forth as set category of defendant cable However, Congress determined disparity. by the issued that are in the from withdrawn should be that discretion to pursuant Sentencing Commission Sentencing Guidelines and that judges are effect 994(a)(1) that U.S.C. § mandatory largely terms are by their is sentenced. defendant date the on the instead. be used should (a) this Thus, although under subsection for, attempt negotiation Defendant’s factors only one is is “rele cocaine grams of purchase, to (b) consider, this factor under is to court setting to contributes conduct” which vant it where factors the other all overrides sec Guideline level under base offense to read sub- seeks majority applies. The taken into Hence, it is since 1B1.3. tion pre- “rebuttable (b) creating a as section level, it offense fixing the base account it how explain but does sumption,” not tak factor” “aggravating anbe cannot the man- view that conclusion reaches guilty to pled Defendant into account. en exception only datory word “shall.” distrib intent to cocaine possession of Guide- statutory directive applicable the most 2D1.1 is Section ute. “aggravating is is if there line sentencе 12 to Note Application section. Guideline kind, or circumstance mitigating specific that makes clear 2D1.1 section by the into account degree” not taken indict drugs mentioned quantity Here, aggra- is no such there Guidelines. states controlling.1 That note is ment mitigating circumstance. vating drugs not quantities “[tjypes that are to be majority states which the factors may be of conviction count specified are instead factors aggravating treated level. determining the offense considered base used determine factors Conduct) If ... (Relevant lB1.3(a)(2) See § level. to traffic negotiation involved substance, Application see argues that in a controlled majority If Commentary to 2D1.4.” there 1 of the consider Note whether court should first find Note we Application then to mitigating circum- turn we “aggravating such an provides: into is, account stance,” one not taken of an of- how convicted I do see If the defendant setting Guideline. determining negotiation traffic involving without first fense be done can substance, under weight judge controlled Until sentence. the Guidehne uncompleted distribu- in an impossible negotiation so, seem it would has done applica- used to calculate aggra- tion shall be mitigating or whether dеtermine amount. ble taken had in fact been circumstance vating authors, substan- entitled to their application Guidelines Sentencing Commission’s 1. "The White, weight.” explanations tial contemporaneous
1053
(36
drugs
grams and 780
quantities
Two
of
under
is located
Although that note
home, placed
in her
were found
Conspiracies,”
grams)
as
“Attempts and
heading
to
by the
whom she knew be
in United
there
son
points out
Fifth Circuit
Cir.1989),
(5th
Garcia,
She knew of the small-
drug
business.
v.
889
1454
States
— U.S.-,
possession
denied,
pled guilty
110 S.Ct.
to
quantity
er
and
rt.
ce
(1990),
application
that amount. Al-
1829,
its
intent to distribute
L.Ed.2d 958
with
108
conspiracies.
unaware of the
attempts
though Mrs. Sailes was
limited to
is not
admittedly appro
larger quantity,
the Dis-
presence
notes that the
of the
The court
directs
specifically
her
section
found that
son’s
priate Guideline
trict Court nonetheless
if the
that note
sentencing
quantities
court
was
possession of the two
“negotiation
involves
of conviction
course of conduct or common
of
same
Garcia
In
defen
therefore,
did here.
applying
traffic” as it
plan,
scheme
distributing eight
convicted of
1B1.3,
was
dant
the Court held that since the
section
However,
nego
he had
of cocaine.
possession
ounces
aiding
abetting
of
son’s
sixteen ounces
for the sale of
tiated
part of the same
larger
was
amount
ounces.
capable
producing
sixteen
was
or common scheme or
course of conduct
District Court had
court held
conviction,
larger
plan as
sixteen ounces
used the
appropriately
in the
level.
had to be included
base
amount
level.
the offense
determine
Smith,
v.
United States
again,
Yet
Perez,
F.2d 45
v.
871
In United States
Cir.1989),
applied the
(6th
104
we
887 F.2d
denied,
910,
Cir.),
109
cert.
(6th
492 U.S.
provisions of the
relevant conduct
Guide-
(1989),
3227,
defen
L.Ed.2d 576
S.Ct.
drug case. There we held that
lines to a
counts,
drug
various
convicted of
dant was
failing
to include
erred
the District Court
intent to dis
possession with
them
among
drug quantities
in the
offense level
base
Per
or more
of cocaine.
tribute 500
count. This Court ruled:
from a dismissed
improp
were
ez
argued that
Guidelines
the district court erred
hold that
[W]e
disputed the
particularly
erly applied and
necessary to
holding
the conduct
“that
held:
level. We
of the base
selection
in the Base Offense
support
inclusion
properly
court
set
base
The district
finding
by a
established
Level must be
given
amount
cocaine
at 28
level
by a
guilty
confirmed
jury,
a plea
sentencing guide-
Under the
involved.
court,
stipu-
open
finding
guilt
nego-
being
lines,
the amount
offense of
оther than the
lated offense
tiated,
uncompleted distribu-
even in an
guilty or nolo
plea
conviction on
tion,
the total
used to calculate
shall be
determi-
contendere.”
its
the base
[ajmount in order to determine
have
nation,
court should
con-
the district
level.
part of the
that was
sidered all
conduct
or a common
of conduct
same course
added).
Id. at 48
(emphasis
the offense of convic-
plan
scheme
Sailes, v.
Again, in
drugs
possession of the
including
tion —
Cir.1989),
(6th
we
held
F.2d 735
Two.
charged
Count
aggregated the to-
properly
District Court
added; footnote omit-
Id. at 108
(emphasis
to determine
quantity of
involved
tal
Ykema,
v.
States
ted).
See
United
also
despite the defen-
appropriate
(6th Cir.1989) (“The
com-
887 F.2d
only
respect to a
plea
guilty
with
dant’s
2D1.1,
as an inter-
mentary
as well
to Sec.
Defendant Jo Ann Sailes
amount.
smaller
lB1.2(a) and
words of Secs.
pretation aiding
abetting pos-
charged was
conduct’),
(‘relevant
only
can
mean
distribute,
session,
IB.1.3
cocaine.
with intent
statement,”
policy
legal equivalent
(7th Cir.1989);
of a
see also
States
United
Cir.),
1B1.7,
Rutter,
Congress
mandated
cert.
has
897 F.2d
S.G. §
— U.S.-,
denied,
88, 112 L.Ed.2d
111 S.Ct.
be con-
policy
of the Commission
statements
Indeed,
commentary that accom-
3553(a)(5).
sentencing.
18 U.S.C.
sidered in
paniеs
treated as
sections "is
ac
are “of a character for which sec
judge can take all
conduct into
offenses
that a
just
3D1.2(d)
grouping
the conduct
require
would
count
tion
—not
*13
(emphasis
specific
supporting
1B1.3(a)(2).
a
conviction”
multiple counts.” U.S.S.G. §
—
denied,
-,
added)),
110
cert.
U.S.
applicable
specifies
here
The
Guideline
(1990).
878,
less,
held
the defendant
this Court
“[t]hat
3553(b)
tory language of section
that the
ran a crack house and that he did so
impose a
of the
court “shall
sentence
kind
buildings is cer
proximity to school
close
range”
and within the
referred to
within the mean
tainly ‘relevant conduct’
added.)
(Emphasis
Guidelines.”
guidelines.”
Id.
ing of section 1B1.3 of
Implicit
majority’s holding
in the
is un-
at 454.3
happiness
with the
Commis-
not,
history
my
legislative
does
departure
“charge offense”
sion’s
from
judge
first
opinion, suggest that
should
crimes,
sentencing
applies
which it
to most
sentencing
“determine at the outset
and “real offense”
which
presents
the case
circum-
process whether
drug,
apply in
embezzlement
Guidelines
adequately
‘not
taken into consider-
stances
and other cases when the offense level is
Majority Opin-
ation’
Commission.”
largely on the basis of
determined
3553(b),
Referring to section
ion at 1045.
aggre-
quantity of a substance involved or
report explains:
the Senate
There
gate dollar amounts.
the Guidelines
requires
judge,
impos-
before
bill
part
the same
use amounts that “were
sentence,
history
ing
to consider
conduct or common scheme
course of
offender,
the na-
characteristics
of conviction.” U.S.
plan as the offense
offense,
ture and circumstances of the
lB1.3(a)(2).
in-
majority
finds
S.G. §
sentencing. He
purposes
and the
in treat-
basis for this difference
sufficient
then to determine
may
types
these
of crimes. One
ment of
apply
policy
statements
taken,
approach
but it is
disagree
with the
the case. Either he
decide
added));
(emphasis
charged
commentary
relevant conduct”
to that section indicates
specified
Perez,
("the
"quantities
types of
at
amount of the
871 F.2d
are to
included in
the count of conviction
determining
uncompleted
being negotiated,
bution,
distri-
even in
they
level if
were
part
the offense
to calculate the total
shall be used
course of conduct or
of a
of the same
common scheme or
determine the base level”
in order to
[a]mount
(emphasis
plan
of convic
count
added)).
comment,
1B1.3,
(backg'd)
U.S.S.G. §
tion.”
Furthermore,
added).
previous
(emphasis
our
Bedoya,
F.2d 73
See also United States v.
3.
plainly
application
instruct
decisions
(2d
1989) (upheld
of entire 21 kilo
Cir.
inclusion
mandatory.
See United
1B1.3 is
Guideline
conspiracy
in a
cocaine involved
Cir.1990),
Miller,
910 F.2d
States v.
exchange
charge, which had been dismissed in
—
denied,
U.S.-,
111 S.Ct.
rt.
ce
plea
possession
with intent
for defendant’s
(1991) ("Sentencing Guideline
increased Sentencing of conviction.” courts historically have taken into account the cir- MARSH, Plaintiff-Appellant, Rita F. surrounding the offense of cumstances Cross-Appellee, scheme, conviction and it was of a courts have considered the entire scheme. In the total amount embezzlement cases ARN, al., Dorothy et embezzled, if a even defendant was not Defendants-Appellees, act,
charged with each was considered. Furrow, Defendant-Appellee, Delores drug cases courts considered whether Cross-Appellant. sale, dealing was isolated sale to 89-3415, 89-3449. Nos. habit, sustain a or a sale someone who drugs. her made his or livelihoodfrom Appeals, Court of Guidelines, by requiring that Sixth Circuit. quantities related to the course of same 14, Argued Nov. 1990. conduct, preparation for the offense 25, Decided June 1991. etc., conviction, enlarge limit rather than Rehearing Rehearing En Banc ability the court’s to consider other con- 23, Sept. Denied nothing enabling I see in the act duct. prohibited Commis- taking approach from it did. sion respectfully
Accordingly, I
dissent.
*
Siler,
Eugene
duty
United
Jr.
active
4. This Court has said as much. See
Hon.
E.
undertook
Miller,
Cir.
September
States v.
as a member of this court on
—
J.,
denied,
1989) (Martin,
concurring), cert.
participate
voting
1991 but did not
-,
S.Ct.
L.Ed.2d 1065
matter.
(1991); Smith,