923 F.2d 70 (7th Cir. 1991), 90-2129, United States v. Bayles

Docket Nº:90-2129.
Citation:923 F.2d 70
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey BAYLES, Defendant-Appellant.
Case Date:January 18, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 70

923 F.2d 70 (7th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jeffrey BAYLES, Defendant-Appellant.

No. 90-2129.

United States Court of Appeals, Seventh Circuit

January 18, 1991

Argued Dec. 13, 1990.

Page 71

Ronald D. May, Office of the U.S. Atty., Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Carol A. Brook, Nancy B. Murnighan, Office of the Federal Public Defender, Chicago, Ill., for defendant-appellant.

Before CUDAHY, EASTERBROOK, and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Jeffrey Bayles is a three time loser. On this, his third, drug conviction (he tried to buy 500 pounds of marijuana from a federal agent in exchange for counterfeit money) Bayles was treated as a "career offender" under U.S.S.G. 4B1.1. That sent his guideline range skyrocketing, and the district court sentenced him to 292 months' imprisonment. The court thought that Bayles had assisted the prosecution and should have been offered a reduction under U.S.S.G. 5K1.1 (policy statement), which provides:

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

But the prosecutor declined to make a motion, and the district judge held that he was therefore powerless to reduce Bayles' sentence.

One might suppose that Bayles' principal argument would be that Sec. 5K1.1, as a policy statement rather than a guideline, does not exhaust the grounds for departure. Courts may depart if the Sentencing Commission did not adequately consider a circumstance, 18 U.S.C. Sec. 3553(b), and it may be that by writing a policy statement rather than a guideline the Commission has signalled that it does not think its treatment definitive. Cf. introductory note 3(a) to Chapter 7, which observes the Commission employs only policy statements, when discussing the revocation of probation, in order to leave courts "greater flexibility". Whether Sec. 5K1.1 leaves such "flexibility" has divided the courts of appeals. Compare United States v. White, 869 F.2d 822, 829 (5th Cir.1989) (yes), with United States v. LaGuardia, 902 F.2d 1010, 1017 & n. 6 (1st Cir.1990) (maybe), with United States v. Soliman, 889 F.2d 441, 443-44 (2d...

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