UNITED STATES of America, Plaintiff-Appellee, v. John P. DAVERN, Defendant-Appellant.
No. 90-3681.
United States Court of Appeals, Sixth Circuit.
Decided July 21, 1992.
Reargued Feb. 12, 1992.
970 F.2d 1490
E. Joshua Rosenkranz (argued and briefed), Howard A. Pincus, Office of Appellate Defender, New York City, for defendant-appellant John P. Davern.
Henry A. Martin, Fed. Public Defender (argued), Federal Public Defender‘s Office, Nashville, Tenn., Gerald T. McFadden (briefed), San Diego, Cal., for amici curiae Federal Public and Community Defenders and Nat. Ass‘n of Crim. Defense Lawyers (NACDL).
Before: MERRITT, Chief Judge, KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges.
KENNEDY, Circuit Judge.
This case requires us to decide the Sentencing Guidelines to be applied where the defendant negotiated and paid for a half kilogram of cocaine but actually received only 85 grams. We hold that the amount negotiated for should determine defendant‘s sentence, and we AFFIRM the District Court.
I.
In November 1989, defendant agreed to purchase 500 grams of cocaine for $10,500 from an undercover FBI drug enforcement agent. The agent actually transferred to defendant a plastic bag weighing 1,070 grams which contained a small plastic bag of cocaine weighing 85 grams enclosed in a 985 gram mixture of plaster of Paris.
Defendant was charged with and pleaded guilty to possession with intent to distribute an unspecified quantity of cocaine in violation of
The issue presented on appeal was whether defendant should be sentenced only for the 85 grams of cocaine actually possessed. A panel of the Court (Merritt, C.J., and Jones, J. with Kennedy, J. concurring in part and dissenting in part) reversed. United States v. Davern, 937 F.2d 1041 (6th Cir.1991) (vacated). The majority held that courts should take a “flexible approach to the guidelines” by “consid-er[ing] the facts in light of qualitative standards [set forth in
The panel‘s opinion was vacated by a vote to rehear the case en banc. Following rehearing en banc, we AFFIRM the District Court.
II.
The government conceded in its rehearing en banc brief that the weight of the plaster of Paris was not to be considered, and therefore that issue is no longer before the Court.2
III.
Defendant argues that a district court has the discretion to disregard the Guideline range in cases where the range is out of proportion to
The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. (Emphasis added.)3
Subsection (a)(4) provides that in determining the particular sentence to be imposed, the court shall consider the kinds of sentence and the sentencing range established for the applicable cate-
Our conclusion that a Guideline sentence is mandatory and that departure is justified only as stated in
The only circumstance in which the district court can disregard the mechanical dictates of the Guidelines is when it finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.
18 U.S.C. § 3553(b) .
Id. at —, 111 S.Ct. at 2184-85.
We believe that a district court must first determine a Guideline sentence, and then must consider whether there is an “aggravating or mitigating circumstance,” that is, one not taken into account in setting the Guideline sentence. Until the judge has determined a sentence under the Guidelines, it seems impossible to determine whether the mitigating or aggravating circumstance had in fact been taken into account in promulgating those specific Guidelines.
Defendant argues that the fact that he negotiated to purchase, although never possessed, 500 grams is a mitigating circumstance not considered by the Guidelines that the District Court should have taken into account. We disagree because we find that the Guidelines specifically provide for this situation.
Section 2D1.1 is the Guideline section that sets forth the base offense levels for drug offenses. Application Note 12 to section 2D1.1 makes clear that the specific quantity of drugs mentioned in the indictment is not controlling. That note states:
If the offense involved negotiation to traffic in a controlled substance, see Application Note 1 of the Commentary to § 2D1.4.
If we turn then to Application Note 1, we find that it provides:
If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount.
Although that note is located under a heading “Attempts and Conspiracies,” as the Fifth Circuit points out in United States v. Garcia, 889 F.2d 1454 (5th Cir.1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990), its application is not limited to attempts and conspiracies. The Fifth Circuit notes that section 2D1.1 specifically directs the sentencing court to note if, as in this case, the offense of conviction involves “negotiation to traffic.” In Garcia, the defendant was convicted of distributing eight ounces of cocaine. He had negotiated to sell sixteen ounces to a DEA agent, but ultimately delivered only eight ounces to the agent. The evidence showed that the defendant was capable of producing sixteen ounces. The court traced the Guidelines from Application Note 114 of § 2D1.1 to Application Note 1 of § 2D1.4, and held that the District Court appropriately had used the sixteen ounces to determine the offense level.
Returning to section 2D1.1, we find that Application Note 12 also permits us to analyze this case under the relevant conduct provision of the Guidelines. Application Note 12 states:
Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See § 1B1.3(a)(2) (Relevant Conduct).
Section 1B1.3(a)(2) requires a base offense level to be determined on the basis of “all
The defendant argues that the relevant conduct provision is ambiguous and does not indicate that conceptually distinct crimes should be combined. The defendant argues that section 1B1.3 does not specifically state that unconvicted conspiracy or distribution offenses should be joined with a possession offense. We believe that section 1B1.3 does permit an unconvicted attempt or conspiracy to be considered as relevant conduct to a possession offense because section 1B1.3(a)(2) expressly states that the entire course of conduct, common scheme or plan shall be considered. The fact that attempts and conspiracies are inchoate crimes and therefore “not of the same character” as a substantive possession offense is immaterial so long as the conduct was part of the same course of conduct, common scheme or plan.5 Defendant‘s attempt to purchase 500 grams of cocaine was clearly part of the same course of conduct or common scheme or plan as defendant‘s possession of the cocaine actually delivered to him.
In United States v. White, 888 F.2d 490 (7th Cir.1989), the Seventh Circuit con-
The court further noted that although the defendant did not succeed in possessing 302 grams, that amount must be included because section 2D1.4(a) requires that the offense level for an attempt to commit a drug offense is the same as if the object of the attempt had been completed. The court noted that it is irrelevant that defendant was not convicted of attempt because “[t]he Guidelines treat success and failure, conviction and no conviction, alike in drug cases, so long as the amounts are ascertainable.” Id. at 499.
IV.
Accordingly, we AFFIRM the defendant‘s sentence.
DAVID A. NELSON, Circuit Judge, concurring.
I share some of the dissenters’ reservations about the wisdom of the current sentencing guideline system, but I concur in the judgment of the court and in Judge Kennedy‘s opinion. Unlike the dissenters, I do not believe that the Sentencing Commission violated any statutory or constitutional limitation in prescribing the sentencing range normally applicable to cases such as the one before us here. Neither do I believe that defendant Davern‘s rights were violated by the application of the sentencing guidelines to him. The importance of the issues presented prompts me to explain the reasons for my conclusions in some detail.
I
Congress has made it a crime for any person knowingly or intentionally to possess cocaine with intent to distribute it.
Mr. Davern was well aware of the 20-year maximum sentence when he entered his plea of guilty:
“THE COURT: Do you know what the maximum penalties required by law are in relation to this case, sir?
The dissent‘s second issue is that the relevant conduct provisions violate due process because a defendant, when he pleads guilty, has no notice of the extent to which his sentence may be enhanced by additional criminal conduct for which he is not charged. The essence of this argument is that a defendant who is not told that his prior related conduct may be used to enhance his present sentence, or who cannot determine how much it will be enhanced, has not made his plea knowingly and voluntarily. In this case defendant has not sought to set aside his guilty plea and thus has not challenged the voluntariness of his plea. The issue is not before us. The balance of the dissent argues that prosecutors have too much discretion in determining what relevant conduct will be presented to the court for consideration in sentencing a defendant. There are no allegations that prosecutors have been inventing relevant conduct where none exists. The only discretion prosecutors may have is to fail to reveal relevant conduct to the probation officer. Although this may be a concern, it is seems closely related to the discretion given to prosecutors generally to determine which offenses they will charge. There can be no claim in this case that the prosecutor deceived the court with regard to relevant conduct. This general policy concern seems best left to a case where it has some implication, or to the legislative branch.
THE DEFENDANT: Yeah.
THE COURT: Tell me.
THE DEFENDANT: Zero to 20 years and a million dollars fine.
THE COURT: 20 years and a million dollar fine. Three years supervised release.
[ASS‘T. U.S. ATTY.]: Correct, your Honor.
THE COURT: And an assessment of $50. Do you understand all of those matters?
THE DEFENDANT: Yes.
THE COURT: Does the fact that you know that change your mind in any manner about entering a plea of guilty here today?
THE DEFENDANT: No.”
In addition to setting a 20-year maximum sentence, Congress has provided in some situations for minimum sentences as well. In the case of a violation of
The Assistant United States Attorney who prepared the indictment for the grand jury in this case was concerned that the sentencing court might have no choice but to impose a mandatory minimum sentence of imprisonment for 5 years.1 In drafting the indictment, therefore, she omitted any reference to the quantity of cocaine involved. The indictment charged simply that “JOHN P. DAVERN did knowingly, intentionally, and unlawfully possess with intent to distribute a mixture and sub-stance containing a detectable amount of cocaine, a Schedule II narcotic drug controlled substance; in violation of Title 21, Section 841(a)(1), United States Code.”
The record is clear that the indictment was deliberately drafted this way for defendant Davern‘s benefit. As the Assistant U.S. Attorney explained in open court,
“I could have, and we normally would have, written that which would have given him a mandatory minimum five years and that was expressly drafted for the benefit of the defendant so that he could get credit for the minus two of acceptance of responsibility under the guideline and get under the mandatory statutory 60 months.”
It is doubtless true that “there are many ‘games to be played‘” in indicting defendants and in plea bargaining, United States v. Harrington, 947 F.2d 956, 964 (D.C.Cir.1991) (Edwards, J., concurring), but the case at bar happens to be one in which the game-playing was intended to work to the defendant‘s advantage. And it did work to his advantage, of course; Mr. Davern was sentenced not to 5 years, but to a little over 4 years.
The attempt by the United States Attorney‘s office to circumvent a possible mandatory minimum 5-year sentence did not offend the trial judge, and it does not offend me. Prosecutors have always enjoyed a wide measure of discretion under our system—they do not have to seek indictments at all, for example, if they see some legitimate reason for not prosecuting—and I do not believe there was any abuse of discretion in this case. The dissenters note that defendant Davern‘s education, lack of a prior criminal record,2 and strong ties to
The statutory penalties apply to “any person” who violates
In the statute establishing guideline sentencing, Congress directed the Sentencing Commission to “assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed and socioeconomic status of offenders.”
Congress also directed the Commission to consider whether certain factors listed in the statute have any relevance to the nature and extent of an appropriate sentence.
The Commission has considered the things that Congress told it to consider and has exercised its informed judgment on these matters. With respect to age, education, family ties and responsibilities and community ties, the Commission has concluded that the factors are “not ordinarily relevant in determining whether a sentence should be outside the guidelines....”
“Drug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines. Substance abuse is highly correlated to an increased pro-pensity to commit crime.”
§ 5H1.4 .3
I fully agree with the dissenters that it is important, in this case, to understand not only the exact nature of Mr. Davern‘s crime, but something about him as an individual. The nature of the crime is relatively easy: Mr. Davern paid $10,500 that he claimed to have saved from his unemployment benefits for what he thought was half a kilogram of cocaine. He told the undercover agent from whom he made the purchase that “he was going to sell the cocaine in one ounce portions4 and that he intended to ‘cut it’ except for that cocaine he would sell to close friends.” He told the sentencing judge, on the other hand, that he planned to use some of the cocaine himself, selling the rest to a “[f]ew friends, just to support my habit.” It is undisputed that Mr. Davern intended to distribute at least part of the cocaine to others. It is also undisputed that Mr. Davern was still addicted to cocaine at the time of his arrest.
Mr. Davern told the sentencing judge that the undercover agent had “enticed” him into buying more than he would have bought ordinarily by offering “this great bargain price.” The judge—who has probably seen enough of these cases to have a pretty good idea of the going price for cocaine in Northeastern Ohio—obviously did not accept this part of Mr. Davern‘s story as true. If he had believed it, the judge could have used the government‘s offer of a “bargain price” as a basis for a downward departure—i.e., a sentence below the 51-month floor of the guideline range. But the judge could not depart downward on the basis of a representation that was not true.
Neither could the judge depart downward on the basis of Mr. Davern‘s being a 25-year-old college student, or because Mr. Davern was a member of a large, closely-knit family, or because he had strong ties to the community. Factors such as these may be weighed by the sentencing judge in deciding what sentence to impose within the guideline range—51 months as opposed to 63 months, e.g.—but the Sentencing Commission, discharging a responsibility vested in it by Congress, has decided that such factors may not ordinarily be used to justify a sentence below the guideline range. If the government did not in fact entice Mr. Davern into contracting to buy half a kilogram by offering him a bargain price, therefore, the guidelines dictate a minimum sentence of 51 months. I am certainly not prepared to say that a 51-month sentence—less than one-fourth the statutory maximum of 240 months—is out of proportion to Mr. Davern‘s crime.
II
Inviting our attention to the statutory construction argument advanced in the original panel opinion, reported at 937 F.2d 1041, the dissenters suggest that the en banc court has disregarded the mandate of
As Judge Kennedy demonstrated very effectively in her dissent from the original panel opinion,
Many federal district judges would probably prefer to be able to decide for themselves what sentence would be sufficient, in a particular case, to comply with the purposes of
Expanding on an argument that was put forth somewhat tentatively in the original panel opinion (“[b]y using the word ‘con-victed,’ Congress may well have intended to prevent the Commission from ordering judges to sentence for unconvicted crimes for which the defendant has not received notice in the indictment and an opportunity to defend in the traditional way,” 937 F.2d at 1051), the dissenters now insist categorically that “[t]he statute does not authorize incremental penalties when a defendant is
In the first place, I do not believe that Mr. Davern was subjected to an “incremental penalty” for offenses of which he was not convicted. He was convicted of possessing a controlled substance (cocaine) with intent to distribute it, and that is all he is being punished for. Using a formula that may be convoluted but that certainly is not ambiguous, the Sentencing Commission has made the range of permissible sentences that may be imposed within the 20-year statutory cap a function of the amount of cocaine the defendant intended to possess. This is clearly not beyond the Commission‘s power, and I do not understand why a sentence within the prescribed range should be thought to represent an incremental penalty for some offense other than possession with intent to distribute.
In the second place,
The dominant theme of Part III of Judge Merritt‘s dissent—a theme echoed elsewhere as well—is that because Mr. Davern did not have adequate notice of the charges and the prospective sentence, it was unfair and unconstitutional to measure his sentence by the quantity of cocaine he intended to purchase. But Mr. Davern had been fully advised how the sentencing guidelines would operate in his case and what the government contended his minimum guideline sentence should be. If ever a defendant entered a guilty plea with his eyes wide open, that defendant was John Davern.
The record of Mr. Davern‘s plea hearing shows that this defendant was hardly the sort of uninformed, friendless, and uncounseled individual sometimes encountered in criminal proceedings. Mr. Davern had a very supportive sister who happened to be a probation officer, and he was represented by two prominent and experienced criminal lawyers. These lawyers, as Mr. Davern testified, had gone over the features of the federal guideline sentencing system with him, and Davern has never contended that he was unaware of how the guidelines might be applied to him.
Any such contention would be precluded by the record of the plea hearing. That record shows that Mr. Davern was in court when the Assistant U.S. Attorney told the judge that the low end of the guideline range, as computed by the government, would be a sentence of 51 months. Mr. Davern also heard the Assistant U.S. Attorney state that under the plea agreement she had negotiated with defense counsel, the government would agree that the appropriate sentence was the 51 months at the bottom of the guideline range.
Addressing Mr. Davern directly, the trial judge told him that the government was “indicating to me that they will recommend to the Court at the time of sentencing that the Court sentence at the bottom of the guideline range. Do I make that clear to you?
THE DEFENDANT: Yes.
THE COURT: The range here is what?
[ASS‘T. U.S. ATT‘Y.]: 51 to 63 months.
THE COURT: 51 to 63. They‘re going to recommend 51. Do you understand that?
THE DEFENDANT: Yes.”
And there is more. Prior to the court‘s acceptance of the plea, one of Mr. Davern‘s lawyers stated on the record that notwithstanding the plea agreement, “the defendant certainly in no way stipulates that the guideline range should in fact be 51 to 64(sic) months.” Again addressing Mr. Davern directly, the judge explained to him that his attorneys, meeting with the court and the prosecutor in chambers, had raised a question as to what quantity of cocaine should be used in determining the part of the guideline grid to which the court should look in determining the sentence. The judge went on to explain to Mr. Davern that there would be a hearing on this matter, following which the court would make a determination. The judge explicitly informed Mr. Davern that he should not assume that his attorneys’ argument would be accepted:
“Now, it may be that I will say that they‘re wrong. It may be that I‘ll say that they‘re right. That is an appealable issue by you to the Circuit Court.”
The judge then asked Mr. Davern if this was satisfactory to him. Mr. Davern re-sponded “Yes.” It was only after all this that the judge asked Mr. Davern how he pleaded to the indictment and Mr. Davern responded “Guilty.”
It is self-evident, I should have thought, that this record bespeaks no violation of Mr. Davern‘s rights under the Due Process Clause. In some other case, with some other defendant, we may find a trial court accepting a guilty plea under circumstances which, because of the defendant‘s unfamiliarity with the guidelines, could arguably create a problem of constitutional magnitude. Surely, however, that possibility cannot justify our treating the guidelines as unconstitutional in their application to John Davern, a defendant whose consti-
MERRITT, Chief Judge, dissenting.
Our court treats the U.S. Sentencing Guidelines as the equivalent of a statute instead of the questionable rules of an administrative agency which has ignored many of the provisions of its governing statute. The Court holds that the “relevant conduct” provisions of the Guidelines are absolute sentencing “imperatives” to be applied automatically without deviation and that they treat “success and failure [in criminal activity], conviction and no conviction alike.”1 Although the Sentencing Commission and its chairman consistently refer to these “relevant conduct” provisions as the “cornerstone of the federal sentencing guidelines,”2 the Sentencing Reform Act of 1984, the Act which authorized the Guidelines, does not expressly mention or authorize any such provisions.3
As I shall try to make clear below, I do not believe that Congress authorized the type of “relevant conduct” provisions adopted by the Commission and sweepingly applied by our Court here; and I further believe that these provisions have led to a system of criminal sentencing in the federal courts that offends due process and other constitutional provisions. Our Court‘s sweeping interpretation of
The willingness of the Court, as legal realists, to recognize and state truthfully what is in fact happening in the administra-
I.
Davern was a college student addicted to drugs and alcohol. After being caught in a drug sting, he pled guilty to possession of cocaine. Because of the Guidelines, he is being treated as a major drug dealer. Instead of receiving a sentence of one year and 3 months for 85 grams of cocaine, the amount he possessed, his sentence was automatically increased to 4 years and 3 months for negotiating to purchase 500 grams, conduct for which he was not convicted. The facts surrounding his arrest and conviction illustrate with clarity the unjust and ultimately indefensible system effectuated by the application of the Sentencing Guidelines. The majority provides a cursory rendition of the facts. It is impossible, however, to assess fairly Davern‘s claims without first examining what took place; what exactly Davern did wrong; and something about him as an individual. A more thorough recitation is in order.
On November 27, 1989, Davern met an undercover FBI agent in a Cleveland, Ohio, parking lot and negotiated to purchase one-half kilogram of cocaine. The record con-
Davern met the agent as planned, gave him the cash, and received in return a package containing 985 grams of plaster of paris. Embedded inside the plaster was a separate small packet of cocaine weighing about 85 grams. Davern assumed that the package was what the agent said it to be and thus did not examine the substance to ensure that it was cocaine.6 Instead, he placed the package in his knapsack and exited the agent‘s vehicle where the men had made the exchange. He was arrested immediately thereafter by special agents of the FBI.
Prior to this arrest, Davern had no record of criminal activity. He was a first offender.7 He attended Cleveland State University and in two quarters would have completed his degree in business management. He was a member of a large, close-knit family with strong ties to the community. The record contains no evidence to suggest that he had ever been involved in dealing drugs before this occasion. He did not obtain the funds used to purchase the cocaine unlawfully.
As District Court Judge Sam Bell noted when contemplating Davern‘s sentence, Davern‘s record prior to this anomalous occurrence was exemplary. Unfortunately,
Davern had demonstrated a personal commitment to overcoming his addiction. He had enrolled in Alcoholics Anonymous only weeks before his arrest. Although he had not yet overcome his substance abuse, he importantly had admitted that he had a problem. Ironically, as noted by his sister, were it not for the long term of imprisonment, Davern‘s arrest could have benefitted him in the long run by making him come to terms more quickly with his drug and alcohol abuse. By the time he entered a guilty plea, Davern was attending five meetings of A.A. each week and was effectively free from drugs and alcohol.
At all times between his arrest and conviction, Davern displayed remorse for his criminal conduct and an acceptance of personal responsibility. He received strong support from his family and friends for which he expressed gratitude. Both the prosecution and the Court noted that the circumstances surrounding the case were atypical.
It is apparently the view of Judge Nelson in his concurring opinion that the Sentencing Commission is correct that these personal offender characteristics should not be taken into account. This view is completely inconsistent with
specific list of factors that the Commission should consider with respect to a defendant‘s sentence. Why does Judge Nelson believe a court may not depart downward on the basis of such characteristics which the Commission concededly did not take into account and which the Sentencing Reform Act says the court “shall consider?” The Guidelines are not a statute, and they do not excuse a sentencing court from doing its duty under the statute, no matter what the Sentencing Commission says. Contrary to Judge Nelson‘s belief, the fact that the Commission has abdicated its duty to consider the “purposes” of sentencing and the personal characteristics of defendants does not authorize a court to abdicate its duty to impose a sentence “not greater than necessary” under
The Court abdicates its duty when, as here, it permits the Commission to pick and choose which directives it will honor and which it will disregard. By accepting wholesale the Commission‘s interpretation of the enabling act, the Court allows the Commission to construe congressional directives to perpetuate its own will rather than the expressed will of Congress. The Commission has simply ignored many of the provisions of the statute that weigh in favor of leniency and has adopted rigidly severe “relevant conduct” provisions which Congress did not authorize.
It is true, as Judge Nelson points out, that Congress directed the Sentencing Commission to “assure that the [G]uidelines and policy statements are entirely neutral as to the race, sex, national origin, creed and socioeconomic status of offenders.”
Judge Nelson dismisses any reliance on
The language of
[S]pecial, mitigating circumstances exist in this case. There has been substantial and demonstrable post-crime rehabilitation by the defendant. The rehabilitation is of a kind and nature which has not been adequately taken into consideration by the Sentencing Commission. As a result, the [G]uidelines overstate the severity of defendant‘s offense conduct. Id. at 1259.9
It was the opinion of the prosecutor and apparently the majority of this Court as well, that the Guidelines adequately took into account all of the circumstances relevant to Davern‘s crime and punishment and, by dictating a 51 month period of imprisonment, correctly reflected the will of Congress and the Sentencing Commission. Furthermore, the majority appears to believe that Davern‘s punishment is not out of proportion to his crime.
In its opinion, the majority rejects Davern‘s argument that the District Court has discretion to reduce the Guideline range if the range is disproportionate to Congress‘s directive in
Observing this trend, the New York Bar Association‘s Committee on the Federal Courts and practically every other commentator11 have urged Congress to overrule the Sentencing Commission and transform the Guidelines from compulsory prescriptions to general standards. The Committee has stated:
Broad goals of deterrence should never take precedence over doing justice to the individual in the dock; yet many judges feel they are forced to treat the defendants they are called upon to sentence in a dehumanized fashion, artificially ignor-
ing entire chapters of their personal histories.
The Committee on Federal Courts, New York Bar Ass‘n, Transforming the Sentencing “Guidelines” into (Just) Guidelines: Comments on the Federal Courts Study Committee Proposal, The Record 675 (1992).
Judge Bell, the sentencing judge in this case, was troubled by the constraint he felt under the Guidelines to disregard much of Davern‘s personal history. Reflecting on his decision to adopt the recommendation of the probation officer in the presentencing report, Judge Bell expressed his discomfort with the Guideline sentence. He stated:
One is tempted in a case like this in all candor to rule in another way because one is tempted to be result oriented. Courts, I think, should not rule on that basis, and this Court will not do so in this case. It‘s an unusual circumstance that
brings a man like this defendant to this Court without a criminal history and with the support of so many of his fellow citizens and his family in this case.
Sentence Hearing, Case No. 1:89CR0380, slip op. at 13 (N.D.Ohio July 11, 1990).
The problem with eliminating the attention courts have traditionally paid to personal characteristics of the defendant, and should continue to pay under
Although Davern pled guilty only to possession of cocaine and possessed only 85 grams of cocaine, the majority today affirms the District Court‘s sentence for his attempt to purchase 500 grams of cocaine. Two propositions come to mind when reviewing these facts: (1) Davern might not have pled guilty to possession had he suspected that the Court would calculate his sentence as if his attempt to possess 500 grams of cocaine had been successful; and (2) Davern might not have attempted to purchase such a large quantity of cocaine had he been dealing with a less accommodating seller. When asked why he wanted to purchase so much cocaine, Davern explained to the judge that he would not usually purchase so much, but that the price was a bargain.13 Had the agents not made the price so appealing, Davern as an
Under the old system, most courts would have sentenced Davern as a minor offend-er.14 Under the Guidelines the Defendant received more than four years’ imprisonment, not because the judge thought Davern‘s crime justified so much time in prison or because he felt that society would be safer and free of a dangerous felon. He imposed the sentence because he felt bound within the rigidity of the inaptly named “Guidelines.” I do not believe that Congress intended the Guidelines to be so rigidly construed.
II.
We have seen how our Court has chosen to treat the numerous relevant conduct upward adjustment possibilities contained throughout the Guidelines as “imperatives” or mandates for the sentencing court to apply automatically without deviation based largely on the information concerning uncharged and unconvicted conduct provided by the prosecutor. The Court‘s holding is breathtaking. Following the “logic” of Judge Easterbrook‘s opinion in a Seventh Circuit case, our court holds that in interpreting the relevant conduct provisions it is entirely irrelevant” that the defendant was not convicted of attempt, conspiracy or some other offense “because the guidelines treat success and failure, conviction and no conviction alike.” No
It is true that the Guidelines, as presently drawn by the Sentencing Commission, seem to treat “success and failure, conviction and no conviction alike,” United States v. White, 888 F.2d 490, 499 (7th Cir.1989), but this position clearly contravenes the Guidelines’ enabling legislation. In
an incremental penalty for each offense in a case in which the defendant is convicted of—
(A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and
(B) multiple offenses committed at different times.
The Guidelines should not be read to treat “conviction and no conviction alike” because such a reading exceeds the authority granted in the enabling legislation to either the Sentencing Commission or a court. It contravenes the plain language of the enabling legislation. See United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986) (starting point for statutory interpretation is the language of the statute itself). See also Ardestani v. INS, — U.S. —, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991) (“strong presumption” exists that the plain language, using the ordinary meaning of the words, clearly expresses congressional intent). Evidently, the Sentencing Commission does not feel restrained by the express language of
The Commission takes the superficially appealing position that it is proper to impose incremental penalties for unconvicted conduct because it claims that courts have always done so. Supporters point out that sentencing courts traditionally had unbridled discretion with respect to what information about the defendant would be considered when imposing a sentence. That reasoning is flawed, however, because it does not acknowledge the prosecutor‘s stake in the outcome or the fundamental distinction between allowing an unbiased court to consider unlimited factors and compelling the court to impose a sentence that reflects information selectively disclosed by the prosecutor. Vesting control over sentencing in an unbiased, objective,
I can find no legislative history contrary to the language of
The court‘s statement in its final footnote that there is “nothing in this section [
It is bad judicial form simply to refuse to follow the policy expressly stated by Congress, in favor of a contrary policy perpetuated by an administrative agency, especially when that congressional policy is designed to maintain a degree of judicial control over the sentencing process. I do not understand why my sisters and brothers, usually the voices of sweet reason and deference to the majoritarian branch of government, persist in following the Sentencing Commission and the Department of Justice in their defiance of the policy stated expressly in the statute we are interpreting. I understand as a matter of public choice theory of incentives why the Sentencing Commission and the Department of Justice might believe it is in their interest to control the sentencing process. See James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (1965). It is certainly in their bureaucratic interest to do so. Congressional appropriations and governmental power depend upon it. But it is not in anyone else‘s interest to adopt a policy contrary to the one expressed by Congress. It is certainly not in the interest of the judiciary as the “least dangerous branch,” and not in the interest of individuals in society who may be wrongly accused by prosecutors whose power has now been so enlarged through our default. The prosecutors now effectively control both the charging system and the sentencing system. And to an ever-increasing extent, the two are one and the same.
What treatment of the “incremental penalty” language of
III.
The Court‘s holding that the relevant conduct provision of the Sentencing Guidelines creates a system of sentencing “imperatives” also violates the Due Process Clause of the Fifth Amendment. This violation occurs because, at the time the plea must be entered, the defendant receives no notice of the additional crimes for which the court will enhance the defendant‘s sentence. Only after the plea is already entered will a probation officer compile the convicted and unconvicted crimes for which sentence will be imposed depending on the uncharged, “relevant conduct” information that the prosecutor chooses to disclose to the court through the probation office. Such a system of sentencing places almost exclusive control over the sentence in the prosecutor because the judge now is compelled to base the sentence on uncharged conduct largely provided by the prosecutor. This system effectively removes the judge from any meaningful role in the sentencing process and substitutes the prosecutor for the judge. Such a system—which substitutes the prosecutor for the judge after a plea of guilty is entered and that gives no explicit notice of the crimes for which the defendant will be sentenced before the plea—violates due process. See United States v. Kikumura, 918 F.2d 1084, 1119 (3rd Cir.1990) (Rosenn, J., concurring) (reasoning that a defendant‘s due process rights may be violated by sentencing system that “replaced judicial discretion over sentencing with prosecutorial discretion“); United States v. Gutierrez, 908 F.2d 349, 354-55 (8th Cir.1990) (Heaney, J., dissenting) (reasoning that the Guidelines’ limitations on a court‘s traditional sentencing authority “are fundamentally unfair and a violation of due process“). See also United States v. Roberts, 726 F.Supp. 1359, 1365-68 (D.D.C.1989), rev‘d sub nom. United States v. Doe, 934 F.2d 353 (D.C.Cir.1991) (holding that the Guidelines “effect substantial violations of due process” on defendants and are thus unconstitutional due to exercise of “key sentencing responsibility ... not by a judge but by the prosecuting attorney“), and United States v. Brittman, 687 F.Supp. 1329, 1355 (E.D.Ark.1988), aff‘d in part, 872 F.2d 827 (8th Cir.1989) (holding that the sphere of sentencing discretion is “properly judicial in nature” in order to comport with due process requirements).
Notice to the defendant and imposition of sentence by an unbiased judge rather than control by a party litigant are crucial procedural elements of due process. These indispensable elements are now absent from the sentencing system under the Court‘s holding that the relevant conduct provisions of the Guidelines should be interpreted as treating convicted and unconvicted conduct the same.
A. Control of Sentence by Prosecutor
The Supreme Court held in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), that the sentencing process may not be placed under the control of a party in interest to the litigation. In Tumey Ohio law placed town mayors in control of criminal prosecution for possession of liquor in violation of prohibition laws. Mayors and their cities were given a personal financial stake in the outcome of these particular cases. The Court held that due process forbids a party in interest from being substituted for the judge in imposing fines and sentences. The Court relied on Dr. Bonham‘s Case, 8 Co.Rep. 114a, 2 Brownl. 255, 77 Eng.Rep. 647 (C.P. 1610), in holding that it “deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” Tumey, 273 U.S. at 523, 47 S.Ct. at 441.
Dr. Bonham‘s Case is the fountainhead of the doctrine of judicial review. In that case the defendant was sentenced by the
Likewise, in Tumey the Supreme Court held that it violates fundamental principles to allow a party in interest to control the sentencing process. 273 U.S. at 531, 47 S.Ct. at 444. See also Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977) (holding defendants’ due process rights to have been violated by a statutory scheme that paid justices of the peace for each search warrant issued); In re Murchison, 349 U.S. 133, 139, 75 S.Ct. 623, 629, 99 L.Ed. 942 (1955) (holding due process violated by allowing judge, who had acted as one-person grand jury, to pass sentence on charges stemming from the initial grand jury hearing); and Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 837 (1968). Impartial justice requires no less than visible control of the sentencing process by an impartial participant—heretofore considered to be the role of the judiciary—to comport with traditional notions of due process. The relevant conduct provisions are a disaster for Guidelines that purport to reduce disparity because these provisions impose a disparate sentencing system based on prosecutorial discretion but conceal the prosecutor‘s role from the public.
B. Notice
Although some effort was made at the arraignment in the instant case to inform the defendant that he might face as much as 51 to 63 months, a sentencing system that institutes punishment for uncharged, unconvicted crimes also violates the notice principle of due process. The prosecutor makes up the crimes for which a sentence will be imposed after the defendant has been required to plead guilty or not guilty, and that was the case here. It is impossible for the defendant to receive notice at the critical stage of the proceeding of the crimes for which he may be sentenced.
The Criminal Rules Committee of the Judicial Conference, in drafting its 1989 amendment to
Allowing a defendant to be sentenced in this way for convicted and unconvicted crimes violates the Sixth Amendment provision requiring that the accused be “informed of the nature and cause of the accusation” at the critical stages of the case. Sentencing is just such a critical stage. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). The requirement that defendants receive fair notice as a matter of due process under the Fifth Amendment and this comparable provision of the Sixth Amendment is fundamental. In Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948), Justice Black wrote for a unanimous Court:
No principle of due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding, in all courts, state or federal.
The Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), applied these same principles to a state sentencing system. It held the Iowa system of parole revocation invalid under the Due Process Clause. In Morrissey the accused was reincarcerated by the state parole board for violating conditions of parole. The parole officer controlled this outcome because the process deferred in large measure to his recommendation and allegations of misconduct. The
It has been said so often by this Court and others as to not require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. “[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by government action.”
408 U.S. at 481, 92 S.Ct. at 2600 (citations omitted). Applying this standard, the Court held that the parole revocation system in question violated due process by allowing the parole officer to control the process, although the official action was taken in the name of the state parole board, and by failing to give adequate notice of the nature of the risks to the accused.
In the history of criminal procedure in the United States, I can find no instance heretofore in which a statute, a court, or an administrative agency has stated that a sentencing court may treat “conviction and no conviction alike.” This refusal to treat conviction and no conviction alike is firmly rooted not merely in tradition but in the Constitution. When the Constitution refers to sentencing or sanctions for crimes, it refers to “convicted” crimes. We need only look to the language of the Thirteenth Amendment. Amendment XIII, § 1 states that there shall be no “involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted.” Involuntary servitude for unconvicted crimes may not “exist within the United States, or any place subject to their jurisdiction” according to the language of the Thirteenth Amendment. See also Article I, § 3[6] (impeachments), Article II, § 4 (impeachments), and Article III, § 3 (trea-
IV.
There are obvious and strong reasons for the congressional policy of
Davern is a case in point. Under the Guidelines, the sentence for Davern‘s offense of conviction ranged from 15-21 months. Davern, however, was sentenced to 51 months—more than three times the minimum for his offense of conviction. Davern received this sentence because the presentence report calculated his offense level to include unconvicted conduct. The defendant in United States v. White, 888 F.2d 490, 494, 500 (7th Cir.1989)—the case followed by our Court—fared even worse in this sentencing game. Uncharged, unconvicted conduct increased his sentencing range fivefold—from 27-33 months to 151-188 months.
Allowing the punishment to be exponentially increased over the base offense level for the convicted crime encourages the prosecutor to do what happened here and is happening on a daily basis in the many other relevant conduct cases across the country. The defendant is indicted for a relatively small felony, which the prosecutor then expands greatly by making up a much more detailed and extensive list of criminal charges and forwarding these to the court through the probation office. The prosecutor need not disclose his hand
By dismissing as irrelevant any distinction between “success and failure, conviction and no conviction” under the formulation of the relevant conduct “imperatives,” this Court, the Department of Justice, and the Sentencing Commission have eliminated the normal constitutional protections afforded an accused. The separation-of-powers principle that an Article III court should control the criminal sentencing proceeding as a constitutional “case or controversy” is avoided because the court is bound to sentence the defendant on the basis of the information on the crimes forwarded by the prosecutor after the plea or verdict. The sentencing grid takes over and mechanically controls the court‘s decision. The judge is only the nominal sentencer. Control of the sentence is thereby vested in the person who produces the new crimes information to be plugged into the grid, namely, the prosecutor. The court may not alter the sentence based on pleas of the defendant or even pleas of the victim concerning the need for deterrence and retribution and the probability of rehabilitation. As formulated, the relevant conduct system does not allow the trial judge to consider the first principle of sentencing that Congress established in
BOYCE F. MARTIN, Jr., Circuit Judge, dissenting.
I join in Chief Judge Merritt‘s dissent, and I write further merely to express my personal views that relate to the conflict that I see in this case between the statute prohibiting the possession of a controlled substance, the enabling statute of the Sentencing Guidelines, and the sentence that can be received for possession of the controlled substance.
This case presents issues that are not necessarily restricted to the defendant, John P. Davern; to some extent the issues are societal. The facts of the case are fairly straightforward. Davern, then a 25-year-old college student who was addicted to various drugs including cocaine, believed that he could negotiate the purchase of a quantity of cocaine that he could eventually distribute in the Cleveland area. Needless to say, this country‘s prohibitions against the possession and/or distribution of drugs
In a one-count indictment, a federal grand jury levied only the following charge against Davern:
On or about November 30, 1989 in the Northern District of Ohio, Eastern Division, JOHN P. DAVERN did knowingly, intentionally, and unlawfully possess with intent to distribute a mixture and substance containing a detectable amount of cocaine, a Schedule II narcotic drug controlled substance; in violation of Title 21, Section 841(a)(1), United States Code.
Davern appeared before the district court and ultimately pled guilty to the charge. Davern possessed no prior criminal record and at the sentencing hearing a determination was made that Davern‘s sentence would be dependent on the amount of cocaine that he possessed. Here, I struggle with my analysis because of what actually happened in this case rather than what could have happened. If the indictment had charged Davern with possession of the 85 grams of cocaine that were found submerged in the plaster of Paris, and Davern, in turn, was sentenced to 4.25 years in prison for the offense, then I would see little reason for an en banc decision. Also, if the indictment had charged Davern with attempting to purchase 500 grams or more of cocaine, and Davern, in turn, was sentenced to 4.25 years in prison for this offense, then once again I would find little difficulty with this case. What strikes me as fundamentally unfair in this case is that nowhere in the indictment is the amount of cocaine mentioned; the indictment merely refers to “a detectable amount of cocaine.” The most appropriate way for the grand jury to have proceeded would have been for them to charge Davern with attempting to purchase 500 grams or more of cocaine for
In determining Davern‘s sentence for his crime, the determinative factor is really how one construes the relevant conduct provision. I agree with Chief Judge Merritt that both the Sentencing Commission and the majority have clearly misconstrued the instructions of Congress. As I said earlier, what troubles me is not that Davern was sentenced to serve 4.25 years in prison; what troubles me is the procedure employed to reach the sentence. In endorsing a broad interpretation of the relevant conduct provisions of the Sentencing Guidelines, the majority has removed the opportunity of the district judge to participate in fashioning any appropriate sentence. Moreover, this broad interpretation of the relevant conduct provision allows the provision to devour the requirement that a defendant be proven guilty of a crime beyond a reasonable doubt. Under the majority‘s interpretation, the prosecution can now charge a defendant with a minor drug crime, prove the defendant guilty of that minor crime beyond a reasonable doubt, and then punish the defendant for additional criminal conduct by using a back door labeled “preponderance of the evidence.” I realize that this country is in the middle of the so-called “War on Drugs,” but we do not make this country a better and safer place by ignoring the fundamental notions of fairness on which this country was founded. The majority has blindly endorsed the Sentencing Commission and totally ignored the enabling statute. Notwithstanding the decisions in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), and Burns v. United States, — U.S. —, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), the Supreme Court has never required us to endorse a practice that is clearly not authorized by Congress.
Today‘s decision has tragically taken from the district judge the little opportunity that remained for him to fashion a sentence that was appropriate for the offense. In this case, we have established a bad precedent that allows a court to use the Sentencing Guidelines in a fashion that is totally inappropriate. I respectfully dissent.
NATHANIEL R. JONES, Circuit Judge, dissenting.
I join fully in the dissenting opinions of Chief Judge Merritt and Judge Martin. I write separately simply to emphasize my firm belief that this Court errs grievously in its continued insistence that the sentencing guidelines narrowly prescribe the factors a district court may consider in sentencing and, more important, that the Court misinterprets Congress‘s clear language to the contrary.
As Chief Judge Merritt recounts, Davern was a college student who had a close-knit, supportive family and strong ties to his community. Davern consistently displayed contrition for his crime and appeared committed to conquering his addiction to drugs and alcohol. Although the district court recognized these factors, the court apparently feared that the sentencing guidelines prohibited its relying on them in imposing a sentence outside of the recommended guideline range. This Court‘s recent precedent, including the majority‘s decision today, confirms that the district court‘s fears were well grounded. I suspect that, under this Circuit‘s interpretation of the guidelines, the district court would similarly have gone astray in considering Davern‘s personal situation had his life circumstances been less fortunate—if, for instance, Davern had come from a broken home, had only minimal education, and had intended to sell the drugs not to support his habit, but to support his family.
To articulate, in broad, general principles, when and to what degree a defen-
Sentencing courts, by contrast, which are daily required to impose sentences upon flesh-and-blood individuals, operate under an entirely different set of congressional constraints. Section 3553 of title 18 instructs the sentencing court, without qualification, to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.”
Congress‘s attempt to replace a sentencing regime that it viewed as systemically biased in favor of the rich over the poor, in favor of majority groups over minorities, or in favor of the advantaged over the disadvantaged, with a more equitable one is an admirable and worthy goal, one that undoubtedly receives the unqualified support of every judge on this Court. In my opinion, however, the sentencing guidelines, as interpreted by this and many other courts, have had the unfortunate effect of stripping district judges of their ability to consider those human factors that the Sentencing Commission has ignored, yet that are so crucial to humane and just sentencing. This Court should cease appealing to the
CORNELIA G. KENNEDY
UNITED STATES CIRCUIT JUDGE