*1 Shalala, ly appointed development administrator’s Employees American Fed’n Gov’t v. Fed- plan, reduction-in-force when administrator Auth., eral Labor Relations constitutionally appointed at time of (D.C.Cir.1985) (citing 862 n. 19 cases for the plan’s implementation). might It be said— proposition agency that remand to the is an although Legi-Tech has not —that we should unnecessary formality where the outcome is judge’s defer to the district discretion in this clear). all, signifi- After there had been no But, regard. purport she did not to exercise change membership cant of the Com- discretion; her remedial she seems to have mission when the district court dismissed the required. considered a any dismissal as In suit, surely and the Commissioners would event, we must assume that a number of every they incentive to have show that had present issue, other cases the same and we not been “influenced” the unconstitutional doubt the propriety of different district presence of the ex members. judges arriving officio different remedial choices in the aftermath of NRA.’7 Legi-Tech may right in arguing well be than a that the Commission’s “review” of the ease Legi-Tech argues, examine the internal de- after NRA was decided was “rubberstamp.” But we cannot, more motion to dismiss is therefore [*] district court’s [*] [*] [*] [*] Legi-Teeh’s [*] Commission, liberations of the at least absent Reversed.
a contention that one or more of the Commis- actually
sioners were biased. Cf. Profession- Org. al Air Controllers v. Federal Traffic Auth.,
Labor Relations
(D.C.Cir.1982) (ordering inquiry an extensive parte
into ex contacts with Members of the
agency allegations based on of extensive “be- machinations”).
hind-the-scenes No such claim is raised here. We must bear in mind America, Appellee, UNITED STATES of statutory authority that we have no to review (as compared, the FEC’s decision to sue statute, unique
under this to a decision not to ALBRITTON, Appellant. Mark (1985)). sue, 437g(a)(8) see U.S.C. No. 94-3173. event, any forcing the Commission to start at beginning process, of the administrative Appeals, United States Court of nature, given promises human no more de- District of Columbia Circuit. “pure” and tached consideration of the merits of the case than the Commission’s ratification Argued Nov.
decision reflected. Decided Feb. circumstances, bearing Under judiciary employs mind the discretion the remedies,
the selection of we think much the post-
better course is to take the FEC’s prior
reconstitution ratification of its deci
sions at face value and treat it as an ade
quate remedy for the NRA constitutional Regnery,
violation.6 Andrade v. Cf. (D.C.Cir.1987) (no legally cogniza employees
ble harm to from unconstitutional- judge 6. We already therefore need not consider the fur- 7. At FEC's least one district has done so. NRA, (D.D.C. Aug. See FEC v. No. 85-1018 argument inappropriate ther that dismissal 1995) (memorandum denying and order motion of the de officer doctrine. facto summary judgment to reconsider for the FEC reconstitution). after the FEC's *2 Sonenberg, Pub- Assistant Federal Santha Defender, City, argued York lic New Kramer, cause, appellant. Fed- for the A.J. Defender, DC, Washington, eral Public on the brief. Alksne,
Cynthia M. Assistant United DC, argued Attorney, Washington, Holder, cause, appellee. Erie H. for the Jr., Attorney, and John R. Jr., Fisher, Tourish, Thomas and Freder- J. Yette, United States Attor- ick W. Assistant neys, on the brief. were HENDERSON, ROGERS and Before: TATEL, Judges. Circuit Opinion filed PER for the court CURIAM. Concurring opinion by Judge filed Circuit HENDERSON.
Concurring opinion Judge filed ROGERS.
PER CURIAM: jury pos- convicted Mark Albritton of fifty sessing with intent to distribute over (crack) grams of cocaine base and a smaller marijuana. amount of The district court sen- prison. him tenced to 121 months On complains appeal, primarily about length argues that of his sentence. He the district court did not understand that he qualified for a reduced sentence based on his drug minimal the intended distribu- tion. affirm his We convictions.
I. Facts April A little after 1:00 a.m. on 1993 a Newark, Greyhound traveling bus from New Jersey Richmond, Virginia made a brief stop Washington, D.C. District of Six officers, police Columbia members of a force, interdiction task boarded the bus. De- questioned tective Lawrence Coates Mark Albritton, Coates, passenger. According Albritton, questioned while he Albritton re- peatedly bag touched a black tote that was adjacent on the seat. Coates also testified gave permission that Albritton him to search bag. the tote The search revealed that the grams bag contained 325 of crack as well as 7H (D.C.Cir.1975) (“[W]e compact some clothes and discs. After condemn the Albritton, they producing prisoners found in his police arrested court who are jacket pocket grams typical jails another 125 of crack and dressed in penal clothes institutions.”). marijuana. a small amount of The cases establish that due process long government is met so as the *3 charged possessing Albritton was with compel does not a prison defendant to wear fifty grams than of crack base with more Estelle, clothes at trial. 425 U.S. at in violation of 21 intent to distribute (“[T]he particular S.Ct. at 1694 pro- evil 841(a)(1) 841(b)(l)(A)(iii) possess- §§ and and defendant, compelling scribed is against a his ing marijuana intent to in distribute will, attire.”); Carter, jail to be in tried 841(a)(1). of 21 violation He was defendant”) (em- (“compelling F.2d at 677 April held without bond from 1993 until removed). phasis 7-9, trial, September trial At bag his wife testified that the tote was not Albritton, however, compelled was not to counsel, Through his he that- his. conceded prison wear clothes at his trial. The record possessed drugs jacket he found in his suggests permitted that he would have been they personal claimed that were for use.' but any to wear supplied clothes that were to September jury 1994 the convicted On Appellant’s him. App. (App.) See 136. His Albritton on both counts. On December brought wife him slacks and two sweaters 1994 the district court sentenced him to 121 but, according deputy to the U.S. Marshal imprisonment years months’ and five of su- him, guarding the slacks were too small and pervised release the crack count and a try he did not even on the sweaters. Noth- imprison- concurrent sentence of six months’ ing in suggests the record that he asked for years supervised ment and two release on Moreover, another set of clothes. Albritton marijuana count. object wearing prison did not to clothes at Estelle, 512-13,
trial. See at U.S. II. Discussion (“[FJailure objection to make being to the court [prison] as to tried in such first, raises two issues: wheth- clothes, reason, for whatever is sufficient to prison er Albritton’s attendance at trial in negate presence compulsion necessary unconstitutional; clothes rendered his trial violation.”). to establish a constitutional We second, and whether the district court erred compelled conclude that Albritton was not granting in not downward de- prison wear clothes and therefore affirm his parture in his sentence based on his minor convictions. role in the intended distribution. We disagree appellant with the on the first issue Departure B. Section SK2.0 and conclude that he waived the second is- sue. appeal, argues On Albritton that section 5K2.0 of Sentencing the United States Guide- A Prison Clothes (guidelines) lines should have been used be- argues prison. his attendance low to shorten his time in Section prison jump case, at trial in a blue applies “atypical suit violated the 5K2.0 to the in one Constitution, relying guideline linguistically ap- on sever which a plies al decisions which significantly indicate a defendant’s but where conduct differs 4(b). process USSG, A, right fourteenth due from the norm.” amendment Ch. Pt. may appears pertinent part grants be violated when he at trial in Section 5K2.0 Williams, prison clothes. Estelle v. district court discretion to U.S. downward 1691, 1693, guideline sentencing 96 S.Ct. 48 L.Ed.2d from an applicable (1976) (“[D]efendant’s clothing likely range mitigating affecting is so if circumstances continuing throughout be a influence “adequately the trial the sentence were not taken into unacceptable presented.”); that ... an Sentencing risk is consideration Commission Carter, formulating guidelines.”1 677 in ment) Departure (Policy 5K2.0 Grounds for State- Albritton, four-point reduction and Ms use for a the district
According to
misspoke
that he
word “minimal” manifest
it
lacked
erroneously concluded
court
Chapter
5 termi-
Ms one-word invocation
5K2.0 down
grant him section
authority to
specific
nology.3
5K2.0 includes no
Section
however,
Albritton,
never
departure.
ward
word “minimal.”
point
reduction nor
for a section 5K2.0
the district
asked
Moreover,
did not refer the district
requested but did
departure.
Instead
court to section 5K2.0.
adjustment
four-point downward
receive a
3B1.2 to
under section
offense level
government agree
his base
and the
The defendant
By
offense.
his “minimal”
tardy departure
reflect
that we review Albritton’s
sentencing a downward
request at
failing
oMy.
Plain errors
“plain
error”
5K2.0, he has waived
fundamentally
section
obviously
under
are those that
*4
appeal.
rights.
the issue on
a defendant’s
United States
violate
(D.C.Cir.
1314,
Dawson,
v.
990 F.2d
requested
that he
a sec-
insists
1993).
recog-
counsel
As Albritton’s trial
departure. As evi-
tion 5K2.0 downward
nized,
plainly
addresses
3B1.2
section
trial counsel
dence,
out
that his
points
culpability
relative
whether
the defendant’s
only in
a term used
“departure,”
requested a
Assuming,
warrants
a different
sentence.
A
the
guidelines.2
review of
Chapter
deciding,
plain
conduct
er-
without
that we
sentencing proceeding, how-
transcript of the
circumstances,
the dis-
ror review in these
lawyer
ever,
that Albritton’s
us
convinces
sponte a
trict
failure to
sua
Chapter
departure
on a
but
relying not
was
departure in this case was not
section 5K2.0
adjustment. He stat-
Chapter 3
on a
instead
all,
error,
plain
if error
because the
things
scheme of
that within the
ed: “I think
3B1.2,
gMdelines, in
account for Ms
section
a minimal
role
in the offense was
his role
in the
role
distribution.
giving
consider
your honor should
and that
reasons,
foregoing
For the
Albritton’s con-
level
reduction
under
four-point
him a
victions are affirmed.
added).
(emphasis
His
App. at 149
3B1.2.”
3B1.2,
request
So ordered.
specific citation to section
3553(b)
sentencing
requires
which
the
section 3B1.2
another “role" to
Under 18
3B1.2,
range
compare
may impose a
outside the
the defendant’s. See USSG
sentence
guideline,
“ap-
applicable
(mitigating
adjustment
by
if the
n. 1
the
comment
established
aggravating
plies
play
an
or
"that there exists
to a
who
a minimal role in
court finds
defendant
kind,
mitigating
activity.
of a
or to a
circumstance
It is intended to cover defen-
concerted
degree,
adequately
culpable
consider-
plainly among
taken into
not
dants who are
the least
Sentencing
by
in formu-
group.")
Commission
ation
of those involved in the conduct of
guidelines
added).
lating
that should result in
(emphasis
point
illustrates a sec-
This
from that described.”
different
sentence
reason that Caballero does not aid Albritton.
ond
There,
clear,
as the record makes
the defendant
"[I]
trial counsel stated:
ask
Albritton's
did
act alone.
was arrested on a
not
Caballero
your
case]
facts of this
Greyhound
[the
honor consider
bus when it
in the District of
arrived
depart." App. at 149.
to downward
order
Columbia from New York. At the time of Ca-
arrest,
police
ballero's
also arrested a second
who,
Caballero,
passenger
carrying
like
was
quarrel
Although
Albritton does not
Nips
Supplemental
crack inside a Cheese
box.
give
him a section 3B1.2
district court’s failure
2,
(Nos. 90-3129,
Appendix at
90-
Caballero
adjustment,
deci
he nevertheless relies on our
3156).
Caballero,
we concluded that the de-
Caballero,
v.
United States
sion in
adjust-
qualify
fendant could
for a section 3B1.2
denied,
1061,
(D.C.Cir.1991),
502 U.S.
cert.
long
that the
ment so
evidence established
(1992),
argue
L.Ed.2d 113
S.Ct.
par-
"relevant conduct" involved more than one
only
supply
does not
route
section 3B1.2
culpability
ticipant and that the defendant’s
was
guidelines to a reduced sentence based
under the
Caballero,
relatively minor.
ment
clearly
erroneous factual
por-
depart rests on
I would dismiss
Accordingly,
peal.
aside a sentence when
mistake than to set
appeal.
tion of
misinterpretation of
stems from a
the refusal
situations,
both
“[i]n
ROGERS,
Judge, concurring:
Guidelines”
not exercised the
judge
has
effect
appellant
government
on him
to de
[or her]
discretion conferred
of Albritton’s
review
the court’s
agree
former because
part
depart,
or not to
error,”
“plain
request is for
tardy departure
fact,
of an
in the latter because
of an error
10; Appellant’s Brief at
Brief
Appellee’s
law.”);
(citing
at 1343-44
United
error of
id.
18,
to a determination
limiting our review
(7th
Burnett,
137,
Cir.
States v.
refusal to
the' district
whether
1995)).
error remains. 18
Review
“in violation of law”
either
depárteme was
52;
(1988);
see
Fed.R.Crim.P.
application
“an incorrect
6;
Watson,
generally
n.
see
ipation. id. Albritton makes no claim See plainly
that his sentence
otherwise
Burnett,
law.
violation of See
Therefore, error, I finding no concur