United States v. Reginald Coleman

(1997).. However, there 178,139 by the no district determination August Stough violated court that was “suffi- any violation or that

1996 order See

ciently warrant dismissal. egregious” to remand, can the district court On

id. 369. appropriate sanctions both Mayville’s delay responding to

Stough’s oth- judgment motions

summary also find. We dilatory conduct

er pass on the Mayville’s invitation

decline motions, leaving that dispositive its

merits of court. to the district

in the first instance

IV. CONCLUSION existing rec careful review of the

After a

ord, Stough’s behavior did we conclude that prosecute a failure to to the level.of rise 41(b) Rules Rule Federal Accordingly, we reverse Procedure.

Civil dismissing this case court’s order proceedings in accor for further

and remand opinion.

dance with America,

UNITED STATES

Plaintiff-Appellee, COLEMAN,

Reginald Defendant-

Appellant.

No. 96-1823. Appeals, States Court

Sixth Circuit.

Argued Sept. March

Decided briefed), Dighe

Krishna (argued S. Detroit, MI, Attorney, Office the U.S. Plaintiff-Appellee. briefed), Epstein (argued

Jonathan Detroit, Office, Federal Public Defenders MI, for Defendant-Appellant. MERRITT, JONES,

Before: NORRIS, Judges. Circuit JONES, J., opinion of delivered the MERRITT, 622-623), (pp. court.. J. concurring separate opinion. delivered a NORRIS, 623-624), (pp. J. delivered separate dissenting opinion. suspects targeted for Apparently, all of the

OPINION African-American.1 On investigation were JONES, Judge. R. Circuit NATHANIEL occasions, separate Coleman delivered five appeals the Reginald Coleman Defendant Agent base to Secrete. cocaine following plea guilty imposed his sentence 7, 1995, in- September, On Coleman was a substance of controlled to distribution of of a on five counts distribution dicted (crack cocaine) in violation of U.S.C. controlled substance U.S.C. 841(a)(1). that the dis § contends Coleman 841(a)(1). plea § Pursuant to a Rule 11 concluding it lacked trict court erred pleaded guilty to two agreement, Coleman on authority depart to legal the- counts. other counts were dismissed. government’s allegedly ground of the the 21, 1996, conviction, May his Cole- On after techniques. hold improper investigatory We a man filed motion 81, 116 U.S. v. United that Koon that his arguing offenses were committed (1996), 2035,135 a decision technique improper investigative to the due the not have of which the district court did ATF, by targeting inducing parol- the and of sentencing, makes the benefit at time specifically target- ees to commit crimes and categorically judge a trial cannot clear that ing only Coleman as- African-Americans. non-prohibited factors from con exclude removed the case serted that these factors departure. for We sideration a downward drug offenses. The from the “heartland” accordingly the sentence and remand vacate argument court found that Coleman’s district re-sentencing. for issue, a but was not rather a prosecution im- selective issue and thus an I. Facts proper legal for a downward Reginald In Defendant December Consequently, the sentenced approached an undercover Coleman was imprison- to a term of 100 Coleman months agent the Bureau of Alcohol Tobacco ment, supervised man- years release and a (“ATF”). Special The agent, Firearms datory special assessment of This $100.00. Secrete, Joseph conducting an Agent was timely appeal followed. posed as a success investigation in which he as approached ful businessman and ex-felons II. Discussion they lawfully parole their reporting were Generally, According government,- Se court’s failure to exer office. a ' tip grant cise a crete receive that certain individ its discretion and would ' See, activity e.g., engaging in criminal is not reviewable. U.S. v. uals (6th Cir.1994). convictions, Landers, parole on for state F.3d An who were appellate may only a denial of listed were not accurate. court whose addresses review departure if Agent photo for a the dis would then obtain motion Secrete “incorrectly judge trict that he graph of individual and location court believed authority reported parole to a to consider defendant’s where the individual lacked individual, mitigating as dis identifying officer. After well Agent approach guidelines.” cretion to deviate from the Secrete would individual omitted). (citation Here, leaving parole as he was his office. Coleman the district court give authority subsequently claims would it lacked the and dis that Secrete believed card, targeted parolees a business and be cretion to downward. rides, by offering repeatedly

friend stated that it believed Cole such individuals jobs is trips, opportunities. prosecution other man’s motion was selective business sue, illegal then offer to rather than an issue be determined in Secrete would deal departure.2 firearms with the individual. a motion a downward J.A. at narcotics and/or survey According government, in the Eastern there were sever- conduct all such cases Michigan. District of attacking al motions different defendants addition, technique. investigative tech- stated, example, judge the district "the For nique prompted Defender’s Office Federal problem ... I have with the motion is that it’s 119-20. The district court further concluded 116 S.Ct. at 2047. A district court defini- complaining only that because Coleman was tion abuses its discretion when it makes an investigatory techniques, about it did not error law. Id. legal using [investigatory

“see a techniques] as a here.” Investigative B. Techniques Indeed, passage J.A. at 120. even During sentencing hearing dissent, by the cited clear that appeal, argued that the dis district court was far more concerned with trict court lacked the to consider a procedural posture of the claim rather departure, asserting than that even if whether there was sufficient evidence had in support fact noting established case of Coleman prosecution, improper even there were evidence of selective no basis hard investigatory techniques, departure it still a would not be downward government an which “issue” would entitle the defendant was legal authority “unaware of ... to a downward depart J.A. at 120. applicable below the Viewing the district court’s guideline range statements because of the method of entirety, apparent their it is that the investigation.” Moreover, Br. Gov. 13. court believed that Coleman’s downward de- government alleged that courts have re parture arguments be'brought could not at peatedly refused to depar allow downward sentencing and that it not did have the au- governmental tures based on misconduct. - thority seriously and discretion to government, however, misunderstands the claims at that Accordingly, time. we import of Koon.3 may review district court’s decision. A departure permitted

A. Standard Review mitigating when there is a factor that has not adequately considered in formulating We review a district court’s belief the Sentencing Guidelines. 18 that it U.S.C. lacked 3553(b); § § see also 1997 U.S.S.G. 5K2.0. Sentencing under the Guidelines Because the Commission “did adequately under an abuse of not discretion standard. Koon, are, into 98-102, take account U.S. at cases that 518 116 2047- one S.Ct. at Thus, ‘unusual,’” reason or we another although note that -a such factors determi normally permissible nation will not may typical of the factors a eourt be considered in the departing consider in “heartland” of embodying cases under the conduct circumstances, Koon, each question guideline is a law and we describes. 92-94, required are not point, to defer on that at (quoting U.S. 116 S.Ct. at 2044. intro, 1, A, pt. abuse of discretion standard includes review 1995 U.S.S.G. ch. comment. 4(b)). determine whether a court A guided may grant court depar legal 98-100, ture, .then, an erroneous conclusion. Id. at if circumstances exist which take ], Cir.), denied, 1148, really a [ issue it’s riot a down- cert. S.Ct. anything, belongs (1996); Wise, ward issue. If it United States a something (8th 1992). motion dismiss the indictment or ap 976 F.2d 393 Cir. courts These along those lines." J.A. at 119. plied § Later she reiter- U.S.S.G. a their deci 5K2.12.as ated, "again you’re really complaining in- about sion. That section entitled "Coercion Du and, vestigatory techniques again, that kind of ress" considered the fact that a defendant goes to selective enforcement issue.” J.A at have committed an offense because of "serious coercion, duress, or blackmail under circum defense,” amounting complete stances not to a encouraged factor government position. 3. The also overstates .in .its had, instances, § determinations. additiori, See 1997 U.S.S.G. 5K2.12. In Even before courts some granted granted courts have departures part motions based improper entrapment" government. "sentencing downward in actions of the cases of For exam- ple, specifically departures courts have where the utilized downward has induced government, cases where the a de- -defendants to more has induced commit serious crimes in crime, See, punishment. e.g., fendant a commit but the defense of order enhance their See, Barth, entrapment (8th e.g., is not warranted. United United States v. 990 F.2d ) McClelland, . States v. 724-25 Cir. 1993 only teaching of Koon is that those typical “heartland” of takable case out /¿.The has on which the Commission forbid- factors guideline. by the eases embodied provide ap- never reliance ... den Court, proposed adopting test Supreme departure. All others propriate basis Circuit, court that a consid- the First stated potentially provide a inquire: should ering departure circumstances.”) (citations appropriate 1) case, potentially, What features omitted); Sherpa, 97 F.3d States v. “heartland” it the Guidelines’ take outside (9th Cir.1996). unusual, or case? Special, make precluded so from consideration which are 2) depar- forbidden Has the Commission sex, creed, race, origin, religion, national are 3) not, If on those features? tures based status, socio-economic U.S.S.G. encouraged depar- has the Commission 5H1.10; youth, guidance § lack of 4) not, features? If on those tures based 5H1.12; drug depen- § or alcohol U.S.S.G. discouraged depar- Commission 5H1.4; § dancy, and economic U.S.S.G. on those features? tures based § 5K2.12. All other fac- hardship, U.S.S.G. omitted). (citation 95, 116 posits as evidence tors which defendant Guidelines, “If unmentioned in the a factor is departure may be warrant- must, considering after the ‘struc by the ed must be considered theory of both relevant individual ture and analysis and utilizing the described above a the taken as guidelines and Guidelines many the making a “refined assessment of whole,’ it is sufficient to take whether decide outcome, bearing by on its facts informed heartland.” the case out of Guideline’s day-to-day in vantage point experience and omitted) added). (citation (emphasis 98, sentencing.” criminal 518 U.S. at otherwise, potentially are a infinitesimal 116 at 2046-47. To There S.Ct. do directly express hold- of which warrant a de would contravene number factors ing afoul one of the parture. clear a court ofAooraand“would run of Koon makes that [by that important of concerns articulated deci- categorically not the consideration exclude Olbres, 28, factor, v. 99 sion].” a United States F.3d and that to do so would be one (1st Cir.1996). Thus, we reiterate that authority 34 transgression policymaking poten- of 105-07, 116 unquantifiable number are in at vested the Commission. Id. factors, departure including tial heretofore strictly A is at 2050. limited S.Ct. previous- that not unknown factors have been determining merely “whether the Commis , ly by Simply a court. a considered explicitly proscribed because sion has consideration directly not at court has ruled the factor factor,” not, “the court must deter not court from issue does excuse factor, as in the occurring mine whether potential considering factor as a circumstances, particular takes the cases out a downward applicable the heartland of the Guide side 2051; 109, line.” Id. at 116 S.Ct. at accord Additionally, to the extent of our prior 510, Mendoza, 121 F.3d 513 United States v. that such cases have indicated (9th Cir.1997); Core, 125 United States v. investigative techniques may improper never (2d 74, Cir.), 76-7 cert. denied sub nom. F.3d depar- a downward warrant consideration for — U.S.-, Reyes 118 v. United ture, finding in we follow our sister circuits (1998) (“[T]he 735, 139 L.Ed.2d 672 overrules all determinations. that Koon such clear a See, Brock, themselves make that Guidelines at e.g., United States v. 108 F.3d ease, every consider in not court should (finding prior 35 that the Fourth Circuit’s circumstances, departure a rare whether post-offense holding that rehabilitation can express appropriate” prohibition, and “absent proper departure never a for' form basis Koon); court is ‘free to effectively consider United overruled not (finding unusual or the factors 97 Sherpa, case whether v. F.3d 1244 States present ... prior holding make it are sufficient that a unusual that the Ninth Circuit’s departure’”) judge may facts degree or warrant reconsider kind (citations omitted); rejected by necessarily Brock States v. that have been United Koon). (“[T]he (4th Cir.1997) jury’s guilty 108 unmis- verdict overruled F.3d 34

621 See, Improper investigative techniques e.g., Brennick, as ba- v. United States 134 F.3d downward, . departing (1st Cir.1998) are not factors sis for 14 (finding defendant’s al Thus,- considered Guidelines.4 eventually leged pay intent to withheld taxes required to examine the district court-was government could take the defendant’s theory guide- structure relevant case out of the heartland of tax evasion as a lines and the Guidelines whole deter- eases); Lipman, States v. United F.3d 133 grounds proffered by mine whether the Cole- (9th Cir.1998) (finding district courts atypical sufficiently man made the case authority could to consider cultural have remove it from the Erroneous- “heartland.” assimilation as basis for a depar .a ly believing that it did not have the ture); v. Kapitzke, States 130 F.3d United departure, dis- 820, (8th Cir.1997) (affirming request for court discounted Coleman’s trict post based on defendant’s offense a- thus its discre- such abused ; nefforts) rehabilitatio United States v. tion. Brock, 108 F.3d at (remanding ease argues also determination whether downward making thé determination post-offense was' warranted for rehabilita departure is warranted' one or niorte of the tion); Rioux, v. United States (deterrence, statutory sentencing goals inca (2d Cir.1996) (affirming downward de correction) pacitation, retribution must parture on the kidney defendant’s reject implicated. We such narrow works); good failure and charitable application mech (D.Neb. Shasky, F.Supp. States government completely anism. The mis 1996) (granting because reads the Seventh Gircuit case which it relies officer). police defendant was homosexual proposition. on for such United States present this' case Pullen, Cir.), F.3d de cert. well as justify well. —nied, 706,- 117 136 S.Ct. U.S.--, disparity pow Unlike the between crack and (1997), L.Ed.2d 627 court noted that the rejected der cocaine which has as a sole previously that a had assumed departure, any justification range guidelines from the must be consistent disparity present judice in the case sub statutory the .sentencing goals with of deter a disparity deliberately would not be created rence, incapacitation, retribution and correc by Sentencing the Commission. United Cf. note, tion. Id. at court on to 370. The went (6th Weaver, 789, v. States 126 F.3d 793 however, Supreme that “the has since Court Cir.1997) (noting that the district court can rejected on sentencing this limitation discre departure solely upon disparity not rest a Thus,. merely tion.” Id. court the deter deliberately Sentencing created the Com reasons, goals mined that those were in favor atypical mission that is not a result of cir departure, but by no means-determinative. cumstances). We, however, decline to deter finding respect We make with to no alleged mine ourselves whether the factors goals in give whether such do fact additional present degree Coleman are such as merely in favor of reasons .but Sentencing in note that the to warrant this Guidelines mention “nothing requiring potential court, about each de case. We leave that to the district parture specified factor to advance one Koon, posi which as is in the best noted- Carter, goals.” United 122 F.3d States tion determine -whether the case is so (7th Cir.1997) Koon). (citing 473 unusual -as to warrant a See Koon, 98-100, S.Ct. at 2047 U.S. interpretedAoon broadly

Courts have (noting-that enjoys an “institu departures in a considered downward num- advantage” appellate tional over the ber cases in which a downward been, determination). -applicable previously. making not have such a irrelevant, obviously, govern 4. We note that this differs from the actual race is it is prohibited allégedly improper targeting factor of race which can never serve and induce ment’s departure.- a basis for downward Coleman’s ment of Coleman which is at issue. (1996), then Disparity 135 L.Ed.2d 116 S.Ct. III. Cocaine that seeks to similar administrative conduct Although court has indicated parolees further certain to commit induce Gaines, in United States in the sen may also considered crimes be — denied, U.S.-, Cir.), 118 S.Ct. cert. case, tencing potpourri. In the Koon (1997), dispari 396, 139 that the instructed lower courts Supreme Court powder co cocaine and ty crack between narrow, cramped of con change the method caine, Sentencing coupled with even pre sidering departures that disparity own belief Commission’s past, including many courts vailed modified, sufficient is not itself should rejected flatly The Court the Sixth Circuit. of the crack cocaine case out take a persistent, constipated con government’s “heartland,” case must still be individu each departures provided on dition Supreme Court not ally As considered. concept back to returns the laxative that ed, designed § to allow 5K2.0 Breyer meaning that Justice the broader every person as “consider convicted courts to in mind other of the Guidelines had drafters every unique case as a individual and place. somewhat irate tone in the first The failings sometimes study in human directed the Su of the should be dissent magnify, the crime and mitigate, sometimes rejection government preme Court’s of the U.S. at punishment to ensue.” view, opinion, which Judge Jones’ Thus, while dis 116 S.Ct. at . spirit faithfully language and follows the a crack may not indicate that parity alone Koon. “heartland,” case is outside cocaine following language from Koon obvi- disparity coupled improper target with the ously that District Court con- means to commit ing and of individuals inducement conduct .in sider Accordingly, those crimes well do so. departures. on calculus hold court erred fail we that the district disparity coupled ing Guidelines, however, the cocaine “place essentially this case particular circumstances of with potential limit the number of no case whether the was removed departure.” to determine may warrant Burns v. 136-137, of crack cocaine eases. from the “heartland” (1991). 2182, 2186, 115 L.Ed.2d 123 set forth factors courts The Commission IV. may consider under circumstances not above, set we RE- For the reasons forth exceptions, clear that with those but made REMAND court’s the district VERSE to limit the kinds “does not intend of it decision, sentencing for con- reconsideration factors, any not mentioned whether or if opinion. this We note that sistent with guidelines, that could where else are no district court determines grounds departure in an un constitute extraordinary present to such an de- I, A, pt. ch. 1995 U.S.S.G. usual case.” the sentence gree as to warrant intro, 4(b). Thus, for the comment. courts be should not disturbed. not to conclude a factor must be consid would be to ered under MERRITT, concurring. Judge, Circuit transgress policy-making authority n opinion Judge I in the of Jones concur vested in the Commission. of the the Court which holds that conduct may account agent in be taken into this case conclude, then, that a federal court’s We considering a down- the District Court can of a factor ever examination whether not departure. We hold that

ward do departure is appropriate only necessary, is departure determining the Com- limited to whether may govern- District Court consider such categorical proscribed, as a mission has arriving at its sentence. mental conduct matter, of If the factor. consideration no-as it will be question to the is Surely, entrapment be considered answer of court must most the time-the 518 U.S. Koon factor, say occurring ing, as seems legally determine whether-the that two insufficient circumstances, grounds particular for a takes this—in alleged case'the ratio and targeting applicable outside add case the heartland —can up to a ground. only sufficient Not do I Guideline. disagree with this conclusion but I can 106-09, 116 2050-51. imagine the box Pandora’s meritless cou- NORRIS, Judge, ALAN E. Circuit plings that be brought will before this court dissenting. attempt in an to circumvent otherwise insuf- arriving today, major- In at its decision arguments. ficient ' ity findings misconstrues the district court’s Moreover, I do not agree majori- with the and eviscerates our recent decision in United ty’s conclusion that the district court did not Gaines, Cir.1997), States 122 F.3d 324 properly request consider Coleman’s for a thereby ignoring this circuit’s well-estab- upon based the “inves- panel rule lished that one of this court tigative techniques” employed by the ATF. prior pan- not overrule a decision of another majority bases its upon conclusion its Commerce, Michigan Dep’t el. Timmer v. view that the district court “found that Cole- (6th Cir.1997). I therefore argument issue, man’s was not a dissent. but instead prosecution a selective issue and an improper legal thus for a Gaines, we were asked decide wheth- departure.” A points review of the record statutory authority er a district court has the to a different conclusion. The district court Sentencing downward from the initially, thought argu- observed that it ground Guidelines on Sentencing that the regarding ment investigative the 'ATF’s Commission, opposed Congress, decid- techniques “not a quantity ed that the 100:1 ratio for powder issue” but properly prosecu- more a selective and crack should be eliminated. cocaine tion issue that should have been raised in at 329. Gaines We held that attorney motion to dismiss.1 Coleman’s then authority. lacks that 331. In Id. at so do- reminded the court that arguing he was not ing, aligned every we our court with other prosecution'but asking selective was instead circuit that has decided the issue. departure: By today, majority decision essen its [TJhis is not claim of selective prosecu- tially meaningless renders our opinion in tion, brought reason and the it was not Although Gaines. concedes that dis motion to dismiss is are indictment wé parity powder treatment crack and co claiming as a prosecu- ease of selective sufficiently powerful caine alone is not tion .... It’s more of á case of selective drug remove case from the “heartland” of law enforcement---- The reason this is a offenses, majority holds the 100:1 grounds simply because ratio, coupled with evidence “improper this takes this ease out of the heartland of targeting and inducement” well be your typical drug That ease. is where enough to for a allow perhaps actively there’s someone who is pursuant to Koon United dealing gov- involved in narcotics and the (1996). 116 S.Ct. ernment investigates then and catches him majority arrives at this conclusion even in the This ease act. is a where Mr. though the district court that evi noted soliciting drug Secretti out was cases proffered support dence ar of Coleman’s cases____ and firearm [T]he gument that improperly targeted he was was guidelines is not to section meant be inconsequential. section, an I all-inclusive and think the troubling impact today’s Most is the hold- courts have been inclined to look ing will have litigation. on future The hold- that various factors have listed .however, preliminary exchange unwilling ty, This from seems consider hearing is the same one subsequent dialogue alluded in the first attorney between Coleman's paragraph major- of the Discussion section in the court. ity opinion, including majori- footnote two. The argument and then acknowledged original Coleman’s

Sentencing Commission rejected it as baseless. also allow] the [Guidelines but guidelines, circumstance, mitigating is a that reasons, then, I respectfully dis- these For that not included of a kind is sent. case, ease, your general your normal depar- that the Court can consider that

ture, for discre- strictly a matter it’s

tion. proceeded then

The district announcing: argument, that

the merits of make guidelines ex- understand that the

I exceptional circumstances but ceptions INTERNATION- CHEMICAL ARISTECH there, you more to I think need I think LIMITED, Plaintiff-Appellant, AL your asser- bring this into that realm than being solicited that Mr. Coleman tion fact, you know the Agent Secretti. LIMITED, FABRICATORS ACRYLIC exactly oppo- position is government’s Defendant-Appellee. site, enough warrant there isn’t No. 96-6525. mean, you’ve hearing I all having a on it. me here is the business given as an exhibit Appeals, States Court card, nothing in terms of no affidavit — Sixth Circuit. did, this, you I and even if

hard evidence of 2, 1997. Argued Dec. still see it as issue still don’t —I don’t to a entitle this defendant which would March Decided departure, motion denied. so district court con- apparent is It assertion whether Coleman’s

sidered proper

amounted but that his claim was concluded summary lacking in

so merit that deserved not,

rejection2. The court did as asserted majority, “lacked the believe it downward.” The discretion

majority that its conclusion reached say

Accordingly, I am unable its discretion when

district court abused occurrences Surely, support separate occasions. The five us little the record before lends months, eight employ spanned than as Coleman thought more that the ATF needed nearly' seven of those improper “targeting” was incarcerated "induce” Cole- methods Michigan for violation of the State of cocaine. Coleman sold months man deliver it crack parole robbery. special agent on earlier for armed five crack cocaine to ATF notes standard of our abuse discretion I to see how the district court’s review. fail product be said to be conclusion can abuse, one when considers discretion Supreme Court’s admonition courts must “bear mind Commission’s upon expectation departures based grounds not in the will mentioned Guidelines highly infrequent.” 518 U.S. at omitted). (punctuation at 2045 116 S.Ct.

Case Details

Case Name: United States v. Reginald Coleman

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 11, 1998

Citation: 138 F.3d 616

Docket Number: 96-1823

Court Abbreviation: 6th Cir.