United States v. Steven A. Filker
972 F.2d 240
8th Cir.
1992
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*2 justice system, criminal will ly strained ARNOLD, Chief Before RICHARD S. hampered by any practice or unduly rule BRIGHT, Judge, Judge, Senior Circuit allows sentences to be attacked on which Judge. first time grounds raised for the exceptional cases.” in the most but BRIGHT, Judge. Senior Garcia-Pillado, v. United States appeals the district generally 36, (5th Cir.1990). See Unit imposition of sentence below the court’s1 Gimbel, ed 91 n. 5 States range upon defendant it is (stating in dicta that Government, however, failed Filker. Appeals “beyond cavil” that the Court of court; raise this issuе sponte). may raise waiver sua party A therefore, we affirm. dis claim of error with the must raise its felon, was arrested a convicted that, ‍​​​​‌​‌​​​‌​​‌‌​‌​​‌‌​​​‌​​‌‌‌‌​‌​‌​​​​‌‌​​‌​‌‌​‍error, trict court so case of an shotgun. The possessing a sawed-off save may correct itself and district сourt (1) being a indicted Filker for review. See United Government the need for our Prichett, of a firearm in violation felon Garcia-Pillado, (2) 924(e) (1988), 922(g), Cir.1990); F.2d at 39- §§ a trial unregistered to reverse altered and is unfair possessing an “[I]t it has 5861(d), of an issue court on the basis in violation of 26 U.S.C. firearm §§ Jones, Dakota. of South for the District District Honorable John B. 1. The went unnoticed consider.” Unit the Government at the not had sentencing hearing. eighteen- Thornberg, 844 ed denied, (8th Cir.), gross month sentence does not 487 U.S. constitute a cert. (1988). If this case werе 101 L.Ed.2d 944 Our S.Ct. remanded, *3 might well im- this issue fits within the consideration of pose by making the same sentence a down- appellate rule that an “well established” departure guidelines ward from the judgment any a on court can affirm proper Accordingly, reasons. we affirm. record, by supported whether by parties in the district or not raised Judge, dissenting. Wood, court. 834 F.2d join I cannot court’s decision bestow- (8th Cir.1987).2 1389 n. undesеrving sentence windfall on an offers no valid excuse By choosing ignore felon. to object to to Filker’s sentence for its fаilure sentence, disregarded the court has its obli- any prior appeal. time to The Govern- gation carry sentencing guide- to out the argument ment contended lines as written. I thus dissent. gave sentencing judge it no to a felon with earlier object to Filker’s sеntence at the sentenc- murder, attempted convictions for distribu- ing hearing. The record belies that conten- marijuana, distribution co- pronounced tion. After Jones Filk- caine, threatened a man with a sawed-off sentence, parties he asked the on three shotgun. charged Filker separate “any if there occasions were other counts, pleaded on sеveral guilty Filker to be considered.” The Govern- matters unregis- an altered and response,3 except to gave ment no tеred firearm in violation of 26 U.S.C. charges against comply one of the Filker to plea agreement. with the Filker object presentence did not This court will not reverse a district report, which recommended a court on an issue that is raised for the first thirty-three forty- sentence between time on unless a Instead, one months at sen- justice would otherwise result. United tencing, argued for a downward de- (8th Ragan, parture. expressly The district court curiam); supporting found no factual basis a down- (8th Houston, Cir.1989). depаrture nothing indicating ward in prison Filker will serve fifteen months sentencing range recommended “is bad [or] less than the minimum sentence he would specific range that some lower is more adopted have served had the district court appropriate dispense.” Given this find- ‍​​​​‌​‌​​​‌​​‌‌​‌​​‌‌​​​‌​​‌‌‌‌​‌​‌​​​​‌‌​​‌​‌‌​‍range by Guideline ing, the district court could not “mak[e] probation colleagues office. Our in the downward Fifth ruled that а sentence below suggests. reasons” as this court statutory rep minimum did not Recognizing it had no Ante at 242. resent a See Gar guidelines, frоm the cia-Pillado, poten The state, 39-40. proceeded court nevertheless “The not as serious as the [cjourt tial viоlation here is sentencing range, has examined Indeed, in that case. taking violation affirmed and it’s the view of the [c]ourt cоnsideration, possible mistake here was so minor that it all matters into that a base 35(c), Leapley, F.2d 1477 Cir. under Fed.R.Crim.P. Lufkins 1992), granted cor requested a district court habeas Government could have that within pus petitioner relief to the due to a confronta sеven the district court "correct a sentence reversed, tion clause violation. This court hold mathematical, imposed that technical, a result of as ing that the confrontation clause violation was error,” although doing clear or оther error, although harmless none of the necessary ap- so would been for this not have had raised harmless error as an issue. Id. at peal objection if an had been made at the sen- If reverse a this tencing hearing. by parties, an issue not raised it affirm on the basis of an un- fortiori raised issue. offense level of 12 under 18 appropriate U.S.C. what is an punishment. [sec- tion 922 would create a more district court thus violated the law in sen- [resulting tencing sentence ... contrary sentence to the recom- a] of 15 to months.” notwith- mended sentence. standing the absence of basis for a Because affirming Filker’s sentence al- deрarture, the district court decided it lows a mistake of go law to uncorrect- would reduce Filker’s sentence gives ed and tаcit approval to the district sentencing Filker for the crime the Govern- actions, court’s I would reverse and re- agreed ment to dismiss rather than the one mand this case for resentencing in con- pleaded guilty. to which Filker had formity with the law. Accordingly, I dis- sent. strongly I disagree with the court’s view *4 affirming sentence is

not a of Ante at arbitrary ‍​​​​‌​‌​​​‌​​‌‌​‌​​‌‌​​​‌​​‌‌‌‌​‌​‌​​​​‌‌​​‌​‌‌​‍The district court’s and ins-

upportable decision to sentence Filker un- inapplicable

der an statute and resulting

because court deemed the apprоpriate” sentence “more outright is an America, Appellee, UNITED STATES of disregard law, it flies the face guidelines’ policy ensuring rational ‍​​​​‌​‌​​​‌​​‌‌​‌​​‌‌​​​‌​​‌‌‌‌​‌​‌​​​​‌‌​​‌​‌‌​‍Eugene SMITH, Demetrick also known and consistent sentencing my decisions. In Terry Guido, Appellant. as Lee view, “the district сourt committed error, resulting in No.

by imposing a sentence in violation of law.” Appeals, States ‍​​​​‌​‌​​​‌​​‌‌​‌​​‌‌​​​‌​​‌‌‌‌​‌​‌​​​​‌‌​​‌​‌‌​‍Court of LeMay, United States v. сuriam). Aug.

Allowing repeat offender to serve a sentence one-half commanded no basis —with Rehearing Rehearing En Banc support the law —violates Sept. Denied requiring that defendants be sentenced ac-

cording guidelines. 3553(b)(1988); Anders, (“[a] applicable

must sentence within the guide-

line unless valid exist for

departure”). Congress guide- enacted

lines honesty, uniformity, to achieve

proportionality decisions, in sentencing

with deviations from the to oc- only

cur rare circumstances. U.S.S.G. (introduction general application

Ch.

principles). court, however, The district

found no from the recom- instead, sentencing range;

mended simply disregarded according

and sentenced Filker to its own appropriate. doing,

view of what was In so guidelines’

the district court frustrated the policy ensuring similarly

central situated

defendants receive consistent sentences re-

gardless judges’ of individual views on