United States v. Samuel K. Tidwell
178 F.3d 946
7th Cir.
1999
Check Treatment

*1 (2) Reality Litiga explicit in Protective Order makes that either party and (1983). tion,” L.Rev. 1 public 69 Cornell interested member of the however, weight authority, challenge secreting particular is to the docu- presump endorse a contrary. cry Most cases ments. an order would be a far Such, materials, standardless, public discovery stipulated, perma- tion of access to from the Distributors, nent, frozen, e.g., Fresh Inc. v. Ev Grove overbroad blanket order that Co., 897; supra, 24 at Juice F.3d we have here. erfresh Industries, Beckman Inc. v. International it enough Thus will not be for the dis- (9th Co., 470, Ins. 966 F.2d 475-76 Cir. point trict pro- remand to 1992); v. Liggett Group, Public Citizen authority tective order as for allowing a Inc., 788-90; supra, Meyer 858 F.2d at portion appellate of the record to be filed Foods, Inc., Goldberg, v. Fisher Inc. under seal this court. He must deter- (6th 159, Cir.1987); 162-64 re In parts appendix mine what contain “Agent Orange" Liability Litiga Product ought, upon material that a neutral balanc- tion, 145-46, supra, 821 F.2d and there interests, ing of kept the relevant be out of require fore the district court to make a public record. good determination of cause before he E.g., enter the order. v. EEOC National Center, Inc.,

Children’s 98 F.3d

(D.C.Cir.1996); Glenmede Trust Co. v. (3d

Thompson, 56 F.3d Cir.

1995); Leucadia, Applied Inc. v. Extru Inc., Technologies,

sion 998 F.2d 165— (3d Cir.1993); In Remington re Arms Co., Cir.1991); America, UNITED STATES Chase, City v. supra, 942 F.2d of Hartford Plaintiff-Appellee, 135-37; Farnsworth v. & Gam Procter Co., ble Cir. 1985). TIDWELL, Samuel K. Defendant- Rule would appear require Appellant. no less. And we note that both First Circuits, and Third which used to endorse No. 98-2710. (e.g., Cryovac, broad umbrella orders Ci Appeals, United States Court of pollone), have away position moved from that (P Citizen, Seventh Circuit. Glenmede, Pansy, ublic Leucadia). Argued March 1999. do not suggest We that all determi May Decided good nations of cause must be made on a document-by-document basis. In a case documents,

with thousands of such a re

quirement might impose an excessive bur

den on magistrate the district or

judge. objection There is no to an order parties keep allows the their trade (or properly

secrets some other demarcat category

ed of legitimately confidential in

formation) record, public provid out of the (1)

ed the judge satisfies himself that the

parties know what a trade secret is and acting good

are faith in deciding which

parts of the record are trade secrets and

EVANS, Judge. Circuit us Samuel K. Tidwell is before for indicted, along third time. He was with 19 a being large-scale others for member of Rockford, drug conspiracy operating out Illinois, juryA between 1989-93. convict- multiple charges Tidwell on and the ed Reinhard, judge, Philip imposed G. district by a life mandated at the time sentencing guidelines. federal We de- and Tidwell’s direct affirmed nied (along sentence with those several his drug conspira- members of the same other Evans, cy) Cir.). decided, Tidwell re- After Evans was sought turned to the district court and on an resentencing based amendment The amend- sentencing guidelines. ment, lowered the maximum number by drug dictated base offense level § 2D1.1 from table U.S.S.G. quantity C, U.S.S.GApp. level 42 to level 38. See 2Dl.l(c)(2) (Nov. 505; § Amend. U.S.S.G. 1994). corresponding- This amendment from ly range reduced Tidwell’s mandatory term of life imprison- months to life of 360 Tidwell, hope, sensing ray ment. seeking returned to the district reduced sentence. court, government

In the district that Amendment 505 correctly conceded retroactive its inclusion U.S.S.G. 1995). lB1.10(c) (Nov. 1, govern- § maintained, however, change that a ment was not warranted in Edwards’ sentence usually traditional factors con- light a sentence. See imposing sidered 3553(a). Judge agreed Reinhard U.S.C. motion, stating: denied Tidwell’s and (ar- L. Syfert, Daniel Olson Keith C. record, the rea- “Having considered Attor- of the United States gued), Office original imposing defendant’s sons for Rockford, IL, plaintiff-appellee. for ney, factors enumerated and the sentence IL, Levy (argued), Chicago, 3553(a), B. that defen- Howard the court finds section defendant-appellant. imprison- sentence of appealed Tidwell appropriate.”

ment WOOD, his case a second time RIPPLE, we considered P. and DIANE Before year ago. over a EVANS, little Judges. here, trip imposed Tidwell chal- On his second have a different if the lenged the denial of his motion resen- guidelines had not impris- mandated life tencing as inconsistent with U.S.S.G. onment. Because the district court did 1131.10(b). origi- that at his argued He not reference 1B1.10 or the substance nal district court hearing the of that section when it denied Tidwell’s *3 expressed imprisonment, concern that life resentencing, motion for we lack “a although guidelines, by mandated the was meaningful reviewing basis for the dis- According too severe a sentence. to Tid- trict court’s consideration of the relevant well, the district court’s statements showed factors.” that had Amendment in 505 been effect (Citation omitted.) just For the reasons original sentencing, the time of his the quoted, we vacated Tidwell’s sentence and judge impose would have been moved to a remanded the “resentencing case for in than imprisomhent. sentence other lB1.10(b).” light § of U.S.S.G. In resolving appeal second in Tidwell’s On remand Tidwell filed a motion for order, unpublished an we wrote: appointment of counsel and an affidavit Although the district court is not re- wife, Sonja from his Tidwell. After order- quired specific to make findings as to ing briefs as whether Tidwell must be factor, each sentencing the record must given appointed attorney an and have a provide meaningful “a basis for review- hearing, as well as whether he must be ing the district court’s consideration of personally present ” for “resentencing,” the relevant factors.... Reinhard, Judge chambers, decided Bauer, Cir. “no” modify and declined to Tidwell’s sen- 1997) (concerning the factors the district tence. He issued an judgment amended court must consider imposing before (with reasons) and commitment order re- 5E1.2); § fine under U.S.S.G. see Unit- sentencing imprisonment.1 Tidwell to life Hale, ed States v. time, Tidwell now is here for the third Cir.1997) 3553(a) (although § 18 U.S.C. challenging the latest order his case. provides that the district .court “shall” factors, consider certain the sentencing Tidwell essentially challenges proce- judge findings need not make addressed employed by Judge dures Reinhard when factors; rather, to each of the relevant the case returned to the district court fol- the sentencing court must make “com- lowing unpublished our order. Was Tid- ments reflecting appropriate that well entitled to full panoply rights of considered”). factors were The district usually associated with an original sentenc- denying court’s order Tidwell’s motion is, ing procedure, formal, that in court resentencing makes no mention of hearing with counsel his side and a 1B1.10(b) § or the sentence the district of allocution? judge proceed Or could the imposed would have had Amend- submissions, as he partic- did-consider the ment 505 been in effect at the time ularly policy statements in 1B1.10 as Tidwell was sentenced. In the original do, he was directed to and enter an

judgment, the district court wrote that judgment amended and order “resentenc- imprisonment “imposed as re- ing” Tidwell to life term? think We quired under sentencing guidelines—life did, proceed can as he and therefore imprisonment only option guide- under we affirm. lines,” perhaps which suggests, especial- ly Evans, when read with the court’s comments After our decision in all (and at the initial it sentencing, proceedings that in the district court (at 8) is, course, says page upon 1. The prison.'' dissent re- nothing There in this mand, time, “For the suggest Judge first the court was re- record to Reinhard’s re- quired give thoughtful assessment any- consideration of Tidwell's sentence was length of time Mr. spend thing “thoughtful.'' Tidwell would other than discre- peculiar lies within the again which proceedings those review true that the court) tion of the district court. It’s to 18 U.S.C. pursuant were this form incor- 3582(c)(2). provides post- judge’s “statement of reasons” statute prisoner imprisonment is the rectly which a notes that life apparatus conviction modify a term of but that option guidelines, under the only a district court can ask statement, of a number eye one viewed with an on the (the correctly, an amendment to reasons, say, where did including whole record the defen- lowers order that the new sentencing guidelines his written life), range. But only be viewed original was 360 months to or, slip tongue 18 U.S.C. proceeding under as no more than a of the case, pen. an Rein- slip Judge a do-over of this *4 in is cloaked from a go where defendant knew he was free to down proceeding hard Tidwell, and the statutory law the judge mandated for Mr. but rights life term fact, a amendment In recent not to do so because Tidwell was Constitution. decided Rules of Crimi- co- player large-scale Rule 43 of the Federal in a crack big-time to (which took effect on De- conspiracy personally possessed nal Procedure who caine 1998, appeal this while assault rifle and cember an AK-47 semiautomatic that a defen- expressly judge clarifies The also noted pending) handguns. several proceeding at a present coconspirators, not be with dant need several other (or 35(b) (c) 3582(c) Tidwell, or Rule to that of Mr. involving backgrounds similar matter). practical good This makes received life terms. defendant, in the federal because sense AFFIRMED. if is hundreds not penal system, often away the court- thousands of miles from RIPPLE, Judge, dissenting. originally where his sentence was house imposed. to right The of a criminal defendant speak to personally, the court address elects to How a district in information his own behalf and to offer motion to reduce a consider a sentence, a bedrock of mitigation of his is a matter of discretion. largely sentence is can jurisprudence that our constitutional appoint counsel for mov The law. lineage early to the common trace its ant, do so. See United States but need not States, 365 U.S. See Green v. United (9th Cir.1996), Townsend, 510 v. (1961); 670 5 L.Ed.2d 81 S.Ct. Whitebird, 55 F.3d States v. and United Barnes, 328 v. United States Cir.1995). here Judge Reinhard (7th Cir.1991); 32.1 Fed.R.Crim.P. declining clearly exercised his discretion Tidwell, and we appoint counsel for to right of allocution is purpose comfortably say that his certainly cannot to opportunity “the give the defendant abused, finding we would discretion was plea mitigation.” to the court his present prevail. for Tidwell to Unit have to make Green, 81 S.Ct. 653. 365 U.S. Marshall, F.3d 866 v. ed States court, “pres- addressing he When Cir.1996). pun- any mitigation information ent meting pun- out the to the court deci- ishment” Judge The merits of Reinhard’s argument Defense counsel’s ishment. Id. get would not a reduced sion—that Tidwell replace the defen- mitigation cannot challenged directly not sentence —are See id. right of allocution. for that is a matter (wisely) appeal, on this prior imposi- right 1. This of allocution (c) personally and required by Rule of the defendant Federal address tion of sentence is 32(c)(3)(C): wishes to Criminal Procedure whether the defendant determine present infor- and to (3) make a statement impos- Imposition of Sentence. Before sentence, mitigation of the sentence. mation in ing the court must: clear, however, contrast, By As our court has made when the right implicated only- this of allocution “is is vacated on and the first sentence imposition nullified, before the all court starts the F,2d Barnes, sentencing situations.” resentencing hearing with a “clean slate.” Indeed, colleagues at 329. our in the as point, See id. at At that the court it, Fifth put “right Circuit have of must make another determina- allocution embodied in Rule 32 does not again tion and the defendant once must be merely give exist a convicted defendant afforded the right present be and to one last-ditch effort to throw himself on personally address the court before mercy of the court.” imposes a new sentence.3 weAs (5th Cir.1998). Myers, 150 F.3d Barnes, made clear in when a defendant’s Consequently, appeals the courts of have prior sentence is vacated being and he is required been to delineate those resen- anew, right “his personally sentenced tencing in which policies situations embod- address sentencing judge was resusci- ied of allocution are at stake tated at hearing regardless the final and those which its invocation would be previously whether he had exercised it.” superfluous. task, In undertaking this Id. courts, general matter, aas have distin- Mr. Tidwell’s situation presents a rather guished between those situations in which *5 situation, unique judicial but the essential a resentencing requires the modification of task remains the same: to ascertain an existing sentence and those which policies whether the right animate the resentencing requires imposition of a require presence of allocution his at the instance, new one. For when the resen- resentencing. Crucial to our analysis tencing merely a sentence reduction or a must be the fact that this resentencing is straightforward correction, the court on the first time that the district court exer- simply remand can amend the sentence any cised respect discretion with to the pursuant to Rule 35 of the Federal Rules punishment Therefore, of Mr. Tidwell. of Criminal Procedure. See United States resentencing presented hearing Parker, (7th Cir.1996); 101 F.3d 528 first right occasion which the of allocu- United v. Taylor, States 11 F.3d 152 significant. tion was At his sen- (11th Cir.1994). Similarly, if the defen- tencing, Mr. Tidwell’s sentence awas man- prisoner dant ais in federal custody and is datorily imposed sentence of life without pursuant resentenced on collateral review parole. The district court had no discre- to 28 he U.S.C. does not have vacated, however, tion. That sentence was right to allocution under that section.2 See an because amendment to the sentencing Pasquanlle States, v. United 130 F.3d guidelines lowered the maximum (6th Cir.1997). base of- Or, if the court fense level of 2D1.1 from level 42 to level must execute deferred such as and, crucially, mandatory from a suspended one that term proba- lieu of a of tionary period reimposed to of proba- but when revoked, months to imprisonment. tion was the execution of On resen- preordained tencing, deferred but Mr. Tidwell a very does therefore had require justifiable right sense, renewed of reason my allocution. to as col- Barnes, See at it, 329. leagues phrase ray hope.” “a The Turner, (va- 2. Section 2255 Cir.1984) slates that a “court enter- 741 F.2d tain and determine such motion without re- cating sentence right to accord defendant a quiring production prisoner at the resentencing probation allocution at after rev- hearing." 28 U.S.C. 2255. ocation); States, Paul v. United 734 F.2d (5th Cir.1984) (vacating 1066-67 sen- 3. Taylor, See United States v. give right tence present defendant the to be (11th Cir.1994) curiam) (per (vacating resentencing which constitutes a new sen- sentence because of district court's failure to tence). right accord defendant his Rule 32 of allocu- resentencing); tion at see also United States v. discretion, judge now had the sentencing around, pun- to mete out time

this second from 360 scale anywhere

ishment For the first imprisonment.

months to life

time, required give court was length of

thoughtful assessment prison. spend in Mr. Tidwell would

time right had a to be therefore

Mr. Tidwell rehearing and to address at the

present Rule 32. He had pursuant to

the court the court his evidence

right to describe to conduct since the mitigation and his right “The sentencing hearing.

prior your request to have

allocution is the de- mercy factored into Barnes,

cision.” refusal to allow court’s present his opportunity

Mr. Tidwell when, as only at the time

plea mitigation matter, have made practical it could

difference, him an ancient deprived law and in the common

right grounded Accord- by our Constitution.

preserved respectfully I dissent.

ingly, *6 al., GAUTREAUX,

Dorothy et

Plaintiffs-Appellees, AUTHORITY, HOUSING

CHICAGO Shuldiner, Joseph

corporation, and Director, ca- his official

Executive Defendants-Appellants.

pacity, 98-1807, and 98-3145.

Nos. Appeals, States Court of

United

Seventh Circuit. 30, 1998.

Argued Oct. May

Decided Rehearing

Rehearing Suggestion 22, 1999.*

En Banc Denied June * participate did not H. Easterbrook and Frank Judge Cummings participated in the consider- re- petition for of this in the consideration died before the decision of this case but ation hearing en banc. Judges M. Flaum Joel was rendered.