U.S. v. Meza, 95-2184

• Decision Date: 29 January 1996
• Docket Number: No. 95-2184,95-2184
• Citation: 127 F.3d 545
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio MEZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 545

127 F.3d 545

UNITED STATES of America, Plaintiff-Appellee, v. Antonio MEZA, Defendant-Appellant.

No. 95-2184.

United States Court of Appeals Seventh Circuit.

Argued Oct. 24, 1995.

Decided Jan. 29, 1996.

Vacated and Remanded by the United States Supreme Court Nov. 18, 1996.

Decision on Remand Oct. 17, 1997.

William T. Grimmer (Submitted), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

Richard Kammen, McClure, McClure & Kammen, Indianapolis, IN, for Defendant-Appellant.

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

This case is before us on remand from the Supreme Court of the United States. Meza v. United States, --- U.S. ----, 117 S.Ct. 478, 136 L.Ed.2d 373 (1996). In its order, the Supreme Court granted Meza's petition for a writ of certiorari, vacated our earlier judgment, and remanded the case to this Court for review in light of the Supreme Court's intervening decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). In an earlier appeal, this Court followed our established precedent and held that a district court has no authority to depart from the Sentencing Guidelines to rectify a perceived disparity among coconspirators' sentences. After incorporating Koon's analysis, we find that a disparity between coconspirators' sentences that results from a downward departure for some, but not all, of the co-conspirators for cooperating with the Government is not a valid basis for downward departure for the non-cooperating conspirator. We therefore again affirm the district court's refusal to depart downward from the Guidelines' sentencing range.

I. HISTORY

In 1992, an investigation revealed that Ricky Bryant and his brother were dealing large quantities of marijuana in the Goshen/Elkhart area of Indiana from a source in Texas. The appellant, Antonio Meza, acted as the middleman in these transactions. He would acquire the marijuana in Texas and sell it to Bryant for a fee of $50.00 per pound. The marijuana would then be driven back to Indiana and distributed. Law enforcement officials estimated that Meza supplied up to 800 pounds of marijuana to Bryant.

On March 3, 1994, the Grand Jury for the Northern District of Indiana returned a 15-count indictment against Meza for his participation in this conspiracy to distribute marijuana. Law enforcement officials, however, were unable to arrest Meza in Texas until October 3, 1994 as they were involved in another extensive investigation. By the time of Meza's arrest, the other conspirators had already cooperated with the Government, and each had been convicted and sentenced. Meza did not seek to cooperate with the Government.

Meza entered a guilty plea on January 10, 1995 and was advised that he was facing a possible mandatory minimum sentence of sixty months for his role in a conspiracy to possess with intent to distribute marijuana in excess of 100 kilograms in violation of 21 U.S.C. § 846. On May 5, 1995, Judge Miller held a sentencing hearing, at which neither side objected to calculations that placed Meza in criminal history category I, base offense level twenty-three, and a sentencing range of forty-six to fifty-seven months.

At the hearing, Meza sought a departure downward from this sentencing range to remedy a perceived disparity in sentences between himself and the others in the conspiracy. The Government argued against any kind of departure, stressing that any disparity in sentences between the co-offenders was due to the effect of U.S.S.G. § 5K1.1 on those individuals for their cooperation with the ongoing investigation. See United States Sentencing Guidelines Manual, § 5K1.1 (1994). According to the Government, Meza did not merit a departure under § 5K1.1 because Meza was unwilling to cooperate with the Government.

Relying on our precedent, the court refused Meza's request. It believed it had no authority to grant Meza's departure request because a "disparity among codefendants' sentences is not a valid basis to challenge a guideline sentence otherwise correctly calculated." United States v. Meza, No. 3:94-CR-14, at 4 (N.D.Ind. May 5, 1995) (sentencing order) (quoting United States v. Dillard, 43 F.3d 299, 311 (7th Cir.1994)); see also United States v. Edwards, 945 F.2d 1387, 1398 (7th Cir.1991) (applying rule against coconspirators who were codefendants); United States v. Smith, 897 F.2d 909, 911 (7th Cir.1990) (applying rule against co-conspirators who were not codefendants); United States v. Guerrero, 894 F.2d 261, 267 (7th Cir.1990) (applying rule against coconspirators who were codefendants). The district court also stated that it would find that a disparity of sentencing is not a permissible basis for departure even without such precedent. According to the court, Meza did not merit a departure downward in sentencing because his circumstances [we]re far from unique; they d[id] not lie outside the "heartland" of conspiracy cases. U.S.S.G. § 5K1.1 is a disparity-producing guideline, and has been so since its inception. It is designed to produce disparate sentences for otherwise similarly situated offenders; the goal of uniformity takes a back seat to encouraging offenders to cooperate with the prosecution. United States v. Meza, No. 3:94-CR-14, at 5 (N.D.Ind. May 5, 1995) (sentencing order).

After being sentenced to forty-six months, Meza appealed his sentence, arguing that a disparity in sentencing is an appropriate basis for a district court to depart downward from a sentencing range. On January 29, 1996, we affirmed Meza's sentence, reconfirming our agreement with the other circuits that a district court has no authority to depart for a perceived disparity among co-conspirators' sentences. See United States v. Meza, 76 F.3d 117, 121 (7th Cir.1996) (noting that every other circuit has reached same conclusion). Meza's petition for rehearing was denied on February 23, 1996. The United States Supreme Court decided Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), on June 13, 1996.

On November 18, 1996, the Supreme Court granted Meza's petition for certiorari on the question of whether, in light of Koon v. United States, a district court may depart from a guideline sentence range not subject to a statutory minimum to cure an unwarranted disparity in sentences of coconspirators. --- U.S. at ----, 116 S.Ct. at 478. The Court vacated our judgment and remanded the matter to us for further consideration in light of Koon. Id.

II. ANALYSIS

Meza argues that we have overstepped our bounds and intruded into the jurisdiction of the United States Sentencing Commission ("the Sentencing Commission" or "Commission") by concluding that a disparity in sentences, by itself, is not a basis for departure from the Sentencing Guidelines. See Meza, 76 F.3d at 121; see also Edwards, 945 F.2d at 1398. To reach this conclusion, Meza interprets the Supreme Court's holding in Koon to permit a district court to consider as a potential basis for departure any aspect of the case that has not been enumerated specifically by the Commission as a forbidden ground for departure. Because Meza believes the Sentencing Commission has not proscribed any consideration of sentencing disparities as a categorical matter, he argues that the federal courts cannot preclude all consideration of disparities, and thereby, requests a remand to the district court to determine whether any unjustified disparity existed in his case. The sole issue in this appeal, therefore, is whether, and if so to what extent, Koon requires this court to depart from its Edwards' line of precedent.

A. The Authority to Determine Impermissible Departure Factors

The Supreme Court in Koon addressed whether the federal courts or the Sentencing Commission has authority to determine whether a departure based on an unmentioned factor is impermissible under all circumstances. 518 U.S. at ----, 116 S.Ct. at 2050. Under the Commission's scheme, there are four categories of sentencing factors: forbidden, encouraged, discouraged, and unmentioned. Id. at ----, ----, 116 S.Ct. at 2045, 2051. Forbidden factors, which can never be the basis for departure from a sentencing range, include race, sex, national origin, creed, religion, socioeconomic status, drug or alcohol dependence, and economic hardship. 1994 U.S.S.G. §§ 5H1.10, 5H1.4, 5K2.12. Encouraged factors include the defendant's role in the offense, his criminal history, and his dependence upon criminal activity for a livelihood. Id. §§ 5H1.7-1.9. Discouraged factors, by contrast, are those "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range." 1994 U.S.S.G. Ch. 5, Pt.H, intro. comment. Discouraged factors are not "necessarily inappropriate" bases for departure, but they should be relied upon only "in exceptional cases." Koon, 518 U.S. at ----, 116 S.Ct. at 2045 (quoting 1995 U.S.S.G. Ch. 5, Pt.H, intro. comment). Discouraged factors include a defendant's mental and emotional condition, physical condition including drug or alcohol dependance or abuse, and employment record. 1994 U.S.S.G. §§ 5H1.4-1.6.

Finally, if the factor does not fall into any of these categories, it is considered unmentioned by the Guidelines. In Koon, the Supreme Court stated that if the factor is unmentioned, "the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline." 518 U.S. at ----, 116 S.Ct. at 2051. To make this determination, the court must consider "the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole," id. at ----, 116 S.Ct. at 2045, while bearing in mind "the Commission's expectation that departures based on grounds not mentioned in the Guidelines will be 'highly infrequent.' " Id. (quoting 1995 U.S.S.G. Ch. 1, Pt.A). Thus, the Supreme Court...