United States v. Sheila M. Wills

RIPPLE, Before EASTERBROOK DILLIN, District Judges, Circuit Judge.*

RIPPLE, Judge. Circuit us is whether the United The issue before States, by filing a motion for downward the United States parture 5K1.1 of (“U.S.S.G.”), Guidelines can limit under 18 U.S.C. depart court to thority of the district The dis- statutory minimum sentence. mandatory departed below the trict court sentenced Sheila sentence attempt Wills, government’s despite the motion. We in its limit the court’s on imposed Ms. Wills. affirm the

I 12, 1993, August pleaded Ms. Wills

On of co- counts of distribution guilty to three of 21 U.S.C. caine violation base 841(a)(1). three, distri- involving count On base, grams or more of cocaine bution of five mandatory sentence of faced a she plea In imprisonment. years five cooperate with promised agreement, she made a government government, and a downward to seek commitment if, judgment of her sentence assis- provided substantial government, she provided: plea agreement tance. The right, in its government reserves a motion at sole sentencing for downward time sentencing guideline ture from pursuant any mini- and from Guidelines to 18 U.S.C. mum sentence provides sub- if the defendant * Indiana, sitting by designation. Dillin, Hugh the United S. The Honorable District of for the Southern States District Court investigation

stantial assistance as minimum sentence so as to reflect a prosecution other defendant’s substantial criminal offenses. assistance in the investigation prosecution of another ¶9, cooperate R. 5. Ms. Wills did with the person who has committed an offense. government. plea accordance Such sentence shall be in accor- therefore, agreement, moved guidelines dance with the state- downward, departure.1 for a At the sentenc- ments issued 19, ing hearing 1993, conducted November 28, to section 994 of title government explained that Ms. Wills had United States Code. agreed cooperate immediately after her guideline promulgated by The second is a arrest, drug buys and that her covert for law Sentencing Commission: enforcement had resulted in at least one § 5K1.1. Substantial Assistance to Au- prosecution indictment and of one other indi- Statement). (Policy thorities vidual in the District Central of Illinois. Her Upon government stating motion of the providing in assistance information in the provided the defendant has substan- proved Southern District also useful. Be- tial assistance in investigation pros- substantial, cause Ms. Wills’ was person ecution of another who has commit- government sought to reduce her sen- offense, ted an may depart the court Assuming applicable tence. months, of 87-108 as in calculated government The provi- views these two presentence report, it moved for a downward sions, § 5K1.1, establishing departure range, from that separate authority fonts of provide differ- minimum sentence of 60 ent rewards for different levels of substantial argued months. Defense counsel then for a government. assistance to government The statutory minimum. therefore prosecution may asserts that sentenced Ms. Wills to choose to invoke one provi- or both of these imprisonment. 24 months The court was according sions to its assessment of the de- that, government the view once the cooperation. fendant’s made a departure, motion for downward Although government’s position court has discretion to degree determine the accepted by has been Appeals Court of departure determine that a de- Circuit, Eighth for the see United States v. parture below the minimum sen- Rodriguez-Morales, 1441, 1444 958 F.2d appropriate. tence is It imposed also other — Cir.), denied, U.S.—, cert. 113 S.Ct. penalties, including years mandatory four 375, (1992), 121 L.Ed.2d 287 it has been supervised gov- release and restitution. The rejected by every other appeals court of appeals ernment now the sentence. has addressed the issue. See United States Beckett, 70, Cir.1993); 996 F.2d II Ah-Kai, v. Cheng 951 F.2d provisions There are two of law that (2d Cir.1991); 492-93 United States v. provide a means to reward a defendant for Keene, (9th Cir.1991); 933 F.2d see cooperation. first, 3553(e), 18 U.S.C. Wade, also United States v. is found in chapter the Sentences of Part II (4th Cir.1991) (acknowledging propo of the Crimes and Criminal Procedure Act: — dicta), grounds, sition on other aff'd (e) authority impose Limited a sen 118 L.Ed.2d 524 tence minimum.— (1992). Upon authorities, examination of the Upon Government, motion of the the court we believe that the of the circuits have impose shall a sen has identified and followed the intent of Con tence below a level gress faithfully established more than single dissent- 1. Ms. government Wills also contends that appeal. light today this of our decision plea agreement by refusing violated the for a range to move the court is the ultimate decisionmaker on the departure downward appropriate degree departure, we need not object- minimum and consider this issue. ing through court's downward substan- to take into account defendant’s circuits join those therefore We ing circuit. investigation pros- have tial assistance does not holding that the person who has commit- ecution of another here. authority that asserts an offense. ted ap- view, appropriate most In our 994(n). to that man- Pursuant 28 U.S.C. us is to examine before to the issue proach promulgated 5K1.1. date the Commission of downward the two sources commented, Ap- further The Commission examine and then to thority forth above set Note 1 of on the intended plication and to the relationship to each other their statutes: scheme, relationship established entire forth in 18 the circumstances set provisions, Under two The first of these Congress. 994(n),' mandates, in its last and. amended, assistance in the according departures be downward prosecution of another investigation or pre- policy statements guidelines and committed an offense person Sentencing who by Federal the sented Commission, statutorily justify a Con- sentence establishing the sion. required minimum sentence. responsibility the charged with gress Sentencing the United States promulgate noted, 28 latter section pro- were to guidelines These Guidelines. 994(n), important key toward provides § vide: understanding relationship meeting pur- in certainty and fairness 994(n), Congress §In directed provisions. avoiding sentencing, unwarranted poses of in Sentencing provide, Commission among defendants sentencing disparities Guidelines, by a mechanism been found who have similar records with im than otherwise sentences lower which while conduct criminal guilty of similar might by guidelines or the posed flexibility maintaining sufficient greatly assist upon individuals who when warranted sentences individualized prosecutions. The government in other aggravating factors by mitigating or Commission, turn, this Con carried out in the establishment into account taken (i.e., gen “reflect the mandate gressional sentencing practices. general imposing a lower sen appropriateness of eral 991(b)(1)(B). Among the § Sen- in imposed, than would otherwise be ténce creating duties that tencing Commission’s that is lower than cluding a sentence requirement that the Com- guidelines by is the minimum sem statute as a established departures, tence”) imple § for downward provide by drafting mission which statutory minimum departure.2 In including those below general downward ments sentences, has substantial- a defendant no § made drafting the Commission government: ly departures be assisted downward distinction between range and those below guidelines that low shall assure commission This deci mandatory sentence.3 appropriate- general guidelines reflect ais part of the Commission sion on the sentence than imposing a lower ness of congressional in interpretation of including a reasonable imposed, otherwise be would owe tent, to which we therefore one than that estab- is lower Sentencing Commis- deference because a minimum by statute as lished 822, White, (1990); 869 F.2d States v. policy 841 United statement 5K1.1 is 2. We note that (5th Cir.) (finding § accords with guideline. circuit has held 5K1.1 Our 829 rather than 1112, denied, reasonably 994(n) directive), intent of effects the U.S. 5K1.1 cert. 490 guide binding (1989). 3172, force of and has the 1033 104 L.Ed.2d 109 S.Ct. 246, Lewis, 247 F.2d States v. 896 line. United Cir.1990) (“Section (7th a reason 5K1.1 reflects 78, Hernandez, 83 17 F.3d States v. 3. See United mandate.”). 994(n)’s interpretation of able Cir.1994) ("‘Section governs all 994(n) requires only Lewis notes guideline for substan- partures from appropriate recognize "general departures scope includes and its tial reducing for substantial as a sentence ness” of permitted sentences Id.; Ayarza, v. also United States sistance. see Wade, 3553(e)."’) (quoting 936 by 18 U.S.C. 1989) 647, (upholding con Cir. 653 171). F.2d at 5K1.1), stitutionality nied, cert. de 3553 and 847, 1047, L.Ed.2d 107 493 U.S. 110 charged Congress sion has been Judge opinion As Miner noted his administration statute. Ahr-Kai, Cheng for the Circuit in Second Doe, (D.C.Cir.) (“The v. F.2d position F.2d at advocated discharge delegated Commission’s of its au in this case would upset deference.”), thority is entitled to cert. de balance of responsibility mandated Con —nied, 112 S.Ct. 116 gress. While the is in the best (1991); L.Ed.2d 221 see also Chevron U.S.A position to know whether a defendant has Council, Inc. Natural Resources Defense helpful, duty been it is the of the court to Inc., 837, 842-45, 467 U.S. 104 S.Ct. impact ought decide what assistance 2781-83, (1984) 81 L.Ed.2d (explaining adjudicated have on the Judge sentence. As principle of deference to an accorded execu wrote, any Miner other allocation of authori department’s tive construction aof ty usurpation would “lead to a discre administer).4 scheme it is entrusted to tion of the district court.” govern Id. The 3553(e) provides that a court ment must first state that the defendant has impose a mini- provided assistance; govern mum “in accordance with position ment is in the best to know whether statements issued of the defendant was sub Commission to section 994.” Noth- stantial. The court decides whether and to ing tightly provisions, in these interrelated what extent is warranted. 994(n) and contemplates the sort making determination, the district court prosecutorial of control of the decision of how must, course, give thoughtful weight to the departure much of a appropriate that is prosecutor: recommendation of the government’s position Indeed, urges. in a weight given Substantial should be to the neighboring provision, § government’s evaluation of the extent of concerning grounds departure, statement for particularly defendant’s the Commission made clear its understand- where the extent and value of the assis- ing that the final determination of the extent tance are difficult to ascertain. departure of the is in the hands of the court. comment, (n. 3). This application Circumstances that warrant note, although making clear that is it guidelines pursuant from the ture to this duty court, prosecutor, not the cannot, provision by nature, very their be determine the extent of departure, also comprehensively analyzed listed and in ad- makes ought clear the court to hear the vance. The controlling as to decision give and thoughtful departure whether and to what extent consider- is ation to only representative warranted can what the be made courts. the Unit- say. ed prosecutor States has to The has the added). (emphasis Like our col- authority to recommend the amount leagues Second, Fourth, Fifth and parture, including whether the sentence Circuits, Ninth persuaded we are that these ought go minimum. provisions, requiring sentencing court to made, however, Once that recommendation is follow the and their official com- the district court is best mentaries suited to determine sections 994(n), place how much of a and on the shoulders of should made. be responsibility the district court the Just as the grant govern- deter- decision not to mine the departure. extent of the ment’s motion is within the above, analysis As we have noted we em consensus on the issue of the courts ploy today Appeals Nation, was first undertaken the Court of Congress neither nor the Commission April for the Ninth Circuit in has seen charged fit to stem the tide. Those (Keene, 714) widely 933 F.2d at been statute, administration while recom throughout followed the United ever since States mending changes, numerous other have not rec view, contrary that time. The expressed any changes ommended clarifications this Eighth (Rodriguez-Mo Circuit in March 1992 994(o) ("The regard. See 28 U.S.C. Commis rales, 1444) 958 F.2d at has also been on the revise, periodically shall review and in con quite Despite for books a while. several revi coming sideration of comments and data to its of the Guidelines sions since the of those advent attention, guidelines[.]”). development decisions aof withhold) (or motion the decision see United sound court’s (7th Cir.1991), from the deci- is no different so under F.2d Hayes, 939 suspect with a less serious charge the sion to discretion- is extent of too the all). (or prosecutorial no crime at As crime ary. the selection discretion informs conclude Accordingly, we must it the decision whether a charge, so informs its the limits of acted within sufficiently valuable defendant’s assistance imposing the sentence justify bargain sentence. No matter impose. did it that the defen- much the believes how rewarded, dant’s assistance should Conclusion must be enforced unless reasons, affirm the foregoing we For judge’s assess- prosecutor shares by the district imposed on Ms. Wills ment. court. parallel power prosecutor has a AFFIRMED. 5K1.1 to and U.S.S.G. departure from the authorize a EASTERBROOK, Judge, Circuit Congress nor the Com Neither dissenting. question whether has addressed the mission distributing crack being arrested After fused, so that powers two are cocaine, Wills turned informer Sheila one without the impossible exercise other. inculpated other “buys” that some made single from 5K1.1 that One infer judge to asked dealers. many suffices, may have but a motion motion by imposing a term this aid her for objectives just If the Rules of Crimi one. range provided the Sen- lower than the many procedural provided that nal Procedure (87-108 months), but not tencing Guidelines single mo in a requests be combined could specified in the minimum sentence tion, follow that a motion it would not months). (60 judge The district seeking to exclude evidence necessari limine of reward for assistance agreed with the idea by jury. ly right to trial Because waived the prosecutor the at the limitation but bridled Sentencing has not insisted Commission im- magnitude. He sought place on its to together, locked we requests are that the two imprison- posed a sentence of months’ this would be within not decide whether need ment, by the question appeal on this and the (i) now are: a we have for power. its What a under is whether motion States United (ii) 5K1.1; vague policy statement guide- depart 5K1.1 to U.S.S.G. n statutoryrequirement 3553(e) §in condition judge to dis- necessarily authorizes the lines prosecutor’s request; on the ing departure statutory minimum well. regard (iii) analogy between motions and an may authorize such prosecutor That the prosecutorial discretion. of and the exercise doubted. departures cannot be the exercise of cannot control Because courts Government, the court Upon motion of the prosecutor violates unless such discretion impose to a sen- have the shall argue Wills does the Constitution —and by statute a level established tence below of minimum sentence by insisting on a reflect a sentence so to as minimum the Consti prosecutor violated months substantial assistance defendant’s district court tution —it follows prosecution of another investigation or impose a sentence lower authority to lacked offense. has committed an person who v. States United than 60 months. Accord imposed in accor- shall be Such sentence F.2d 1441 Cir. Rodriguez-Morales, guidelines and state- policy dance with Keene, 1992); v. States United Sentencing by issued J., ments (9th Cir.1991) (Alarcon, dissent 715-23 994 of title pursuant to section circuits, contrary position of four ing). The States Code. Keene, United if majority in takes little including the close relation between 3553(e). any account That the prosecutor’s exercise motion under also cannot doubted. motion is essential — equa charging States, prosecutorial Wade United dispositive. (1992), Wade is 1840, 118 tion that after holds L.Ed.2d 524 ponder question defendant, If we were of link- expense at the of the deter age, pose the issue I would would be whether rent force of the criminal Another con law. simultaneous from both sequence is that there will be fewer motions guideline range appropriate. any filing kind. If a motion under 5K1.1 3553(e): Recall the second sentence of permits judge cut the sentence “Such shall be (as in accor- here), three-quarters happened pros dance with the state- ecutor great will insist on a deal of assis Sentencing ments issued Commission Many unlucky tance. enough defendants are to section 994 of title to have little of value to offer. See United I Code.” understand this to mean Brigham, States v. 977 F.2d 317 Cir. prosecutor’s that the impose authorization to 1992). They are now condemned to serve the full authorized though even judge does not to throw out the prosecutor possessed power to differenti impose any term that strikes might slight ate slight with a aid fancy. his reads as if de- majority’s reduction. The approach leads to signed to deal with minima that lie sentencing big inversions: fish who have above the range sentences the many upon subordinates to turn receive low Commission exchange thinks best. sentences, nothing and little fish with to offer can remove the high receive departures sentences. Modest guideline barrier use of the range. 5K1.1 mitigate for modest assistance Similarly, guideline exceeds By this effect. converting the motion into an statutory minimum, prosecutor by affair, all-or-none ensures that motion under facilitate for many defendants the allowed ture from the We know from 28 will be legislature “none.” Neither the nor prosecutor may that the Commission has ordained this depart thorize a from statute and result, I and would not strain attain it. guideline Still, treating the same case. inevitably one motion as dispensing with all

criteria, judges may they so that act as did days uncabined discretion preceded the Sentencing Reform Act of sufficiently contrary to the themes CLUB, HARTLAND SPORTSMAN’S animating statute that we should avoid INCORPORATED, imputing Plaintiff- conclusion to the Appellant, especially since we know Commission— nothing Executive Branch wants of the sort. DELAFIELD, TOWN OF Aud Robert T. Sheila Wills has received a boon from the ley, individually capacity and in his district court. Future defendants and soci- Supervisor Supervisors of the Board of ety large at pay will price. Delafield, of the Town of Barbara A. 3553(e) and Guideline 5K1.1 prose- Hansen, individually capacity and in her cutor to offer reward for assistance. This Supervisor Supervi Board process works best if the amount Delafield, al., sors of the Town of et graduated reward can be value Defendants-Appellees. (who assistance —a value sees No. 93-3195. the full menu potential of crimes and cases in district) Appeals, United States Court assess judge. can better than By Seventh holding Circuit. that a motion either permits Argued May 1994. give any appropriate, sentence he deems Sept. Decided prosecutor’s ability curtails the match the the assistance. When procured can be for modest

reduction, a overcompensates lower sentence

Case Details

Case Name: United States v. Sheila M. Wills

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 20, 1994

Citation: 35 F.3d 1192

Docket Number: 93-4024

Court Abbreviation: 7th Cir.