U.S. v. Threw, 88-1157

• Decision Date: 24 January 1989
• Docket Number: No. 88-1157,88-1157
• Citation: 861 F.2d 1046
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy THREW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1046

861 F.2d 1046

UNITED STATES of America, Plaintiff-Appellee, v. Timothy THREW, Defendant-Appellant.

No. 88-1157.

United States Court of Appeals, Seventh Circuit.

Argued May 25, 1988.

Decided Nov. 16, 1988.

As Amended Nov. 18, 1988.

Rehearing and Rehearing En Banc Denied Jan. 24, 1989.

Richard H. Parsons, Richard H. Parsons Law Office, Peoria, Ill., for defendant-appellant.

K. Tate Chambers, Asst. U.S. Atty., Peoria, Ill., William Roberts, U.S. Atty., for plaintiff-appellee.

Before WOOD, Jr. and FLAUM, Circuit Judges, and WILL, Senior District Judge. ^*

FLAUM, Circuit Judge.

The defendant-appellant, Timothy Threw, pled guilty to one count of knowingly and intentionally manufacturing marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). He appeals from the district court's imposition of a 10-year term of imprisonment followed by a 5-year special parole term, contending that the district court's sentence is so excessive as to constitute a violation of the eighth amendment's proscription against cruel and unusual punishment. Threw further claims that the harshness of the sentence is a direct result of the government's failure to abide by the terms and conditions of a "proffer letter" furnished to Threw prior to his agreeing to plead guilty. We affirm, but not without some misgivings.

I.

At the time of his arrest on August 18, 1987, Timothy Threw was 30 years old, possessed no criminal record, and had been a self-employed farmer in Knox County, Illinois, for about a decade. Threw was charged with knowingly manufacturing marijuana and entered an initial plea of not guilty. In the ensuing days, Threw participated in preliminary discussions with the government aimed at securing his cooperation in other ongoing investigations in exchange for a guilty plea with a promise that any and all assistance that he rendered would be presented to the court for consideration at sentencing.

As is often the case, and apparently the custom in the Central District of Illinois, Threw's negotiations with the government were conducted pursuant to a "proffer letter." The purpose of such a letter, according to the government, ordinarily is to ensure that in the event a cooperating defendant decides not to plead guilty, any information he may have "proffered" to the government cannot later be used against him at trial unless it can be shown that such information was independently obtained. ¹ While proffer letters are thus intended primarily to protect those who ultimately choose not to cooperate with the government, the language of the letter agreed to in this case strongly implied that the government was equally constrained from using the information obtained from Threw against him in subsequent proceedings if he continued to cooperate and ultimately pled guilty. Specifically, the August 25 proffer letter provided, in part In order to assure that there are no misunderstandings concerning the meaning of this proffer, I [the Assistant United States Attorney] am writing to clarify the ground rules for any proffer with your client. First, no statements made by or other information provided by your client during the proffer will be used against your client in any criminal case.

The substance of Threw's proffer revealed to the government for the first time that his cultivating and manufacturing activities actually began in 1984, instead of the spring of 1987 as the government had charged. The proffer also disclosed the total amount of marijuana Threw harvested as well as the considerable profits he realized.

On August 27, Threw withdrew his not guilty plea and instead entered a plea of guilty to one count of manufacturing over 50 kilograms of marijuana during the spring and autumn of 1987. Two paragraphs of Threw's plea agreement contained language at least partially contradicting the government's proffer letter. Paragraph 12 of the plea agreement stated that the United States Attorney's Office would "fully apprise the District Court and the United States Probation Office of the nature, scope, and extent of defendant's conduct regarding the charge against him, and related matters, including all matters in aggravation and mitigation relevant to the issue of sentencing." Paragraph 16 of the plea agreement acknowledged that "all information provided to the United States Attorney's Office during the course of [defendant's] cooperation will be turned over to the United States Probation Office for its preparation of a pre-sentence report."

The district judge sentenced Threw on January 15, 1988. Present at the sentencing hearing were the same counsel who had agreed to the terms of the earlier proffer letter. The court accepted the plea agreement and then proceeded to consider factors in aggravation and mitigation of sentence. Threw, the only witness to testify at the sentencing hearing, gave testimony in his own behalf while the government initially presented its evidence in mitigation in camera. ² Among the factors the government later presented in aggravation of sentence was Threw's "history in growing marijuana"--a history the government had learned about only as the result of Threw's own disclosures pursuant to the terms of the proffer letter. The Assistance United States Attorney told the court:

Another aggravating factor that applies to the history in [sic] growing marijuana, in 1985 he along with another individual planted, cultivated, manicured and sold approximately 30 to 40 pounds of marijuana realizing a profit of $20,000 to $30,000. In 1986 he planted, cultivated and sold approximately a hundred to 150 pounds of marijuana, making an estimated profit of 60 to $90,000 in one year. In 1987 he expected to harvest 850 pounds of marijuana which, your Honor, have been sold somewhere here mostly in the Central District of Illinois and realized a profit of $250,000.

The government then recommended that Threw be sentenced to no fewer than 12 years' imprisonment (a maximum of 20 years was possible) and to a special parole term of three years. Although Threw was given the opportunity to, and did in fact, object to the inclusion of certain information in the Probation Office's pre-sentence report, he did not bring to the court's attention the fact that the government had obtained some of the most damaging information in the report as a direct result of his own cooperation and in apparent violation of the proffer letter.

The district court imposed sentence at the conclusion of the parties' aggravation and mitigation presentations. In imposing a 10-year term of imprisonment with a 5-year special parole term, the court was clearly influenced by the pre-sentence report's detailed choronology of Threw's illicit agricultural endeavors. The district judge commented In reference to the seriousness of this offense, this was an extremely serious situation. At the time that you were arrested you were into your fourth crop, as I understand it. This started in 1984 with approximately 100 marijuana plants, and in that year you realized a profit of approximately $10,000. In 1985, although I don't recall or I don't know if it was set out how many plants you had, you realized a profit of $20,000 to $30,000, some two to three times what it had been the year before.

In 1986 you had approximately 465 plants, realized a profit of $60,000 to $90,000. So again it had doubled or tripled over the previous year. And in 1987, at the time of the arrest, the government seized approximately well over 1400 plants, which would mean approximately three times the amount that you had been involved with the year before.

So this was an operation that had multiplied by a factor of three into the fourth year. It started out with a rather significant amount to begin with. But by 1987 we are talking about a truly large operation.

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I think it is also significant here that this is something that went on for a period of four growing seasons from 1984 to 1987.... It not only occurred over that period of time, but there were many different decisions, many different actions that had to be made over that period of time in order to make it succeed--literally from ground up from the growing of the seeds, the planting of the seeds, the cultivation, to the watering, to the harvesting and to the manicuring to the sale. This really truly was, and I think that is a serious aggravating factor in terms of the offense.

(Emphasis added). It is from the district court's 10-year sentence that Threw seeks relief.

II.

Threw raises two arguments on appeal. First, he claims that, whether considered in isolation or compared to the sentences of others charged with violations of 21 U.S.C. Sec. 841(a)(1), his 10-year sentence is so excessive and disproportionate to the particulars of his offense that it violates the cruel and unusual punishment clause of the eighth amendment. Second, Threw argues that, at the very least, he should be entitled to resentencing due to the government's failure to abide by the terms of its proffer letter. We consider these arguments in turn.

Mounting a challenge to a statutorily authorized sentence is an uphill struggle. In this case, Threw's sentence of 10 years' imprisonment is exactly half the maximum allowable sentence pursuant to 21 U.S.C. Sec. 841(a)(1). Sentences within the maximum term provided for by Congress are reviewable in this circuit only for a manifest abuse of discretion. United States v. Ray, 828 F.2d 399, 425 (7th Cir.1987); United States v. Mitchell, 788 F.2d 1232, 1237 (7th Cir.1986). A district court abuses its discretion if it relies upon inaccurate information in exercising its discretion, or fails to exercise any discretion at all. United States v. Nesbitt, 852 F.2d 1502 (7th Cir.1988); United States v. Ford, 840 F.2d 460, 466 (7th Cir.1988). Similarly, a mere showing of disparity in sentences among codefendants or among unrelated defendants sentenced for violations of an identical statute does not, without more,...