U.S. v. Galloway, 90-3034

Citation943 F.2d 897
Decision Date09 September 1991
Docket NumberNo. 90-3034,90-3034
PartiesUNITED STATES of America, Appellant, v. Eddie Lee GALLOWAY, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Robert L. Neighbors, Little Rock, Ark., for appellant.

Richard E. Holiman, Little Rock, Ark., for appellee.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge and BEAM, Circuit Judge.

BRIGHT, Senior Circuit Judge.

The Government appeals Eddie Lee Galloway's twenty-four month sentence based on a single count of theft from an interstate shipment. 18 U.S.C. § 659 (1988). The Government sought to include seven uncharged thefts in the sentencing calculation pursuant to section 1B1.3(a)(2) of the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual, § 1B1.3(a)(2) (Nov. 1990) [hereinafter U.S.S.G.]. The district court refused to include this separate uncharged conduct, holding that section 1B1.3(a)(2) violated Galloway's right to indictment, jury trial, confrontation of witnesses and proof of guilt beyond a reasonable doubt. We affirm Galloway's sentence, but do not reach the constitutional issues upon which the district court rested its decision.

I. BACKGROUND

In a two-count indictment, the Government charged Galloway and one W.J. Young with stealing a truckload of tires and transporting a stolen vehicle in interstate commerce. In August 1990, Galloway pled guilty to count one, theft from interstate shipment; count two was dismissed pursuant to a plea agreement.

The presentence report PSR (PSR) valued the stolen goods at $37,000. pp 20-21. Under the Guidelines, this amount ordinarily would have called for a base offense level of 10 and a sentencing range of twenty-one to twenty-seven months for Galloway, based on Criminal History Category V. U.S.S.G. § 2B1.1; U.S.S.G. Ch. 5, Pt. A. The PSR, however, alleged that "Galloway participated in an organization which stole approximately $1,009,950 in stolen goods which were moving in interstate commerce." PSR p 11. It listed seven separate interstate property offenses for which the Government had neither charged nor indicted Galloway and included these offenses in the sentencing calculation. PSR pp 13-19. The PSR also recommended related enhancements for Galloway's alleged leadership role in offenses that required more than minimal planning. The above adjustments nearly tripled Galloway's sentencing range. They put Galloway at offense level 19 and called for a sentence of sixty-three to seventy-eight months. 1 2

By contrast, for Young a very different result ensued. Young pled guilty under an identical plea agreement to Galloway's, and his PSR listed the same uncharged interstate property offenses. However, Young's PSR concluded that the theft of the trailer and tires "was the only transaction of which Mr. Young ... had knowledge." See PSR p 21. As a consequence, the PSR calculated Young's sentencing range based only on the offense charged in the indictment. Additionally, Young's PSR recommended a two-point reduction for acceptance of responsibility. The result: Young was assigned a sentencing range of only two to eight months, based on an adjusted offense level of 8 and a Criminal History Category I.

Galloway objected. He contended that the alleged uncharged conduct could not be used to calculate his sentencing range under section 1B1.3(a)(2) of the Guidelines. The district court agreed, after making the following observation:

The Court notes that yesterday it sentenced Mr. Galloway's co-defendant, Mr. W.J. Young, to five months imprisonment with two years of supervised release. Mr. Young had pled guilty to Count I of a two count indictment and the Government had moved the dismissal of Count II. The same situation that has occurred here....

I also note that the presentence reports in the two cases contain much identical language; indeed, the paragraphs that you talk about, 13 through 20 [detailing charged and uncharged conduct] are identical....

....

Now if the facts contained in the presentence report are true, then it is clear that the Defendant Young and Defendant Galloway are really poles apart in terms of their culpability, at least to the degree of their involvement in criminal activity. But the Government has chosen to place identical charges against these two defendants. It charged Mr. Young with the only crime that he committed, at least as reflected by the presentence report--that is, the March 22, 1990 theft.

But the Government has charged Mr. Galloway with only one of eight different crimes which it says he committed, and that was the least serious of the ones mentioned in the report. And the only crime, of course, that Mr. Galloway has pled guilty to is the one in Count I--that is, the one that Mr. Young pled guilty to--but I gather the Government wishes the Court to sentence Mr. Galloway as if it had charged him with the eight thefts exceeding $1 million in value and as if he had been convicted of all those charges.

Now this is a question. The Government could have charged him with all the criminal conduct that they mention in the report and he could have pled guilty or not guilty, and if he had pled not guilty he could have been tried and, if convicted, we would not be dealing with these problems. It would be absolutely clear what the factual basis for the sentence should be. But the Government didn't choose to follow that path, and I gather it's because of the sentencing guideline laws. I don't think the Government views Mr. Galloway and Mr. Young as equal in culpability. I'm just getting the impression--I may be wrong--they are saying, "Why should we bother? Under the guidelines if he pleds [sic] guilty to one of these, then we will ask the Court to sentence him as if he had been convicted of all of them," and that, they say, is what the guidelines call for. And they may be right, but I am resisting to a certain extent that idea.

Sent. Tr. at 10-13 (emphasis added).

The district court went on to hold section 1B1.3(a)(2) unconstitutional as applied, reciting the following rationale:

[I]f you look at Amendment V to the Constitution you see that, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury."

Now it says a crime, and the Supreme Court has interpreted crimes to mean anything that might subject one to the possibility of imprisonment for more than six months. And it also says no person shall be held to answer. Well, is Mr. Galloway being held to answer for that conduct here if it's established his sentence will be increased five, six years? Yes, I think if that crime is proved [at the sentencing hearing], he will be held to answer here.

Amendment VI says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." In all criminal prosecutions. Are we engaged in a criminal prosecution here, or is it some sort of legerdemain? Are we converting this crime into a sentencing factor? It also says--that is, Amendment VI--that he has a right to be informed of the nature and cause of the accusation. Of course, that would have been done if Amendment V had been followed.

I am going to conclude as a matter of law that in this case the Government may not, in the posture of this record, enhance the sentence of the defendant by proving by a preponderance of the evidence the conduct and acts referred to in paragraphs 13 through 19 because I feel it would violate the defendant's constitutional rights. What we have here is what I have referred to as the Russianizing of our Constitution. The language is quite clear, but we can, by sophistry or otherwise treat it and ignore it and that's what happened in other countries. I don't want to see it happen here.

Sent. Tr. at 28-29. Accordingly, the court refused to permit the Government to prove the uncharged conduct.

The district court's logic need not be addressed. Pursuant to the familiar rubric that courts do not unnecessarily decide constitutional issues, we must initially resolve the statutory question before reaching and deciding the constitutional issues. Did Congress empower the Sentencing Commission to enact the guidelines applicable to this case? After careful research and study of the legislation and its history, we have concluded that the United States Sentencing Commission exceeded its statutory authority in promulgating the uncharged conduct provisions of section 1B1.3(a)(2) to encompass separate property crimes like Galloway's. Accordingly, we affirm Galloway's sentence without reaching the constitutional issues decided by the district court.

II. DISCUSSION

In 1984, Congress established the United States Sentencing Commission. Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 217(a), 98 Stat. 1837, 2017-27 (codified as amended at 28 U.S.C. § 991-998 (1988)). Congress charged the Commission, among other things, with promulgating guidelines and policy statements for use in determining and implementing criminal sentences. 28 U.S.C. § 994(a). Thereafter, the Commission promulgated a comprehensive set of guidelines and policy statements, including the guideline at issue here, entitled "Relevant Conduct," U.S.S.G. § 1B1.3. The relevant conduct guideline reads:

Relevant Conduct (Factors that Determine the Guideline Range)

(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:

(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the...

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