U.S. v. Arrington

• Decision Date: 02 January 1996
• Docket Number: 95-1595 and 95-1740,Nos. 95-1566,s. 95-1566
• Citation: 73 F.3d 144
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert ARRINGTON, Jacqueline K. Burch, a/k/a Jacqueline Sullivan, and Howard "Moose" Baker, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 144

73 F.3d 144

UNITED STATES of America, Plaintiff-Appellee, v. Robert ARRINGTON, Jacqueline K. Burch, a/k/a Jacqueline

Sullivan, and Howard "Moose" Baker, Defendants-Appellants.

Nos. 95-1566, 95-1595 and 95-1740.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 3, 1995.

Decided Jan. 2, 1996.

John H. Campbell, K. Tate Chambers, Office of the United States Attorney, Peoria, IL, for United States.

Dick L. Williams, Richard Parsons, East Peoria, IL, for Jacqueline K. Burch.

Richard H. Parsons, Peoria, IL, for Robert Arrington.

William H. Laws, Chicago, IL, for Howard Baker.

Before CUMMINGS, ESCHBACH and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Robert Arrington, Jacqueline Burch, and Howard Baker pled guilty to conspiracy to distribute crack cocaine. They now appeal their sentences. Arrington and Burch argue that the provisions mandating different sentences for offenses involving "cocaine" and "cocaine base" are ambiguous and thus the district court should have applied the lesser penalties for "cocaine." In addition, Burch argues that the disparate impact of the penalties for "cocaine base" on African-Americans justifies a downward departure from the guidelines. Finally, Baker claims that the district court should have granted him relief from the statutory minimum sentence under 18 U.S.C. Sec. 3553(f). The district court rejected these challenges, and we affirm.

I. "Cocaine" versus "Cocaine Base"

Arrington and Burch argue that the provisions mandating different penalties for "cocaine" and "cocaine base" are ambiguous. They contend that both terms have the same scientific meaning and that the court should therefore apply the rule of lenity and impose the lesser penalties specified for "cocaine." We recently rejected this argument in United States v. Booker, 70 F.3d 488, 494 (7th Cir.1995), holding that the penalties for "cocaine base" apply to crack cocaine and the penalties for "cocaine" apply to all other forms of cocaine. The record reveals that Arrington and Burch were involved with crack cocaine; thus, the district court properly applied the enhanced penalties for "cocaine base."

II. Disparate Impact on African-Americans

Burch argues that the sentencing provisions for crack cocaine have a disparate impact on African-Americans. She contends that this disparate impact gives the district court the authority to depart downward from her guideline range. The district court held that it had no authority to grant a departure. Although we have no jurisdiction to review a district court's discretionary refusal to depart from the guidelines, United States v. Reynolds, 64 F.3d 292, 298 (7th Cir.1995), we may review the question of whether the district court had the authority to grant a departure. Id.

Burch correctly notes that African-Americans comprise the majority of those who have been convicted of crack cocaine offenses. For example, in 1993, 88.3 percent of the convictions in federal court for the distribution of crack cocaine were obtained against African-American defendants. U.S. Sentencing Commission: Executive Summary of Special Report on Cocaine and Federal Sentencing Policy, 56 Crim.L.Rep. 2159, 2167 (Mar. 1, 1995). However, the fact that a guidelines provision may have a disparate impact on a particular racial group is not sufficient to justify a departure from the guidelines. Although we have not previously addressed this question, every other circuit to consider it has concluded that this disparate impact on African-Americans does not justify a downward departure from the guidelines. See United States v. Alton, 60 F.3d 1065, 1071 (3d Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 576, 133 L.Ed.2d 500 (1995); United States v. Lewis, 40 F.3d 1325, 1345-46 (1st Cir.1994); United States v. Thompson, 27 F.3d 671, 679 (D.C.Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 650, 130 L.Ed.2d 554 (1994); United States v. Maxwell, 25 F.3d 1389, 1400-01 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994); United States v. Haynes, 985 F.2d 65, 70 (2d Cir.1993); United States v. Pickett, 941 F.2d 411, 418 (6th Cir.1991). ¹ Rather, departures are reserved for special cases with unusual circumstances that "render unjust an otherwise just sentence under the guidelines." Thompson, 27 F.3d at 679. The fact that defendants convicted of offenses involving crack cocaine receive enhanced penalties is not a sufficiently "atypical" or "unusual" circumstance to warrant a downward departure. Id.; see also Alton, 60 F.3d at 1071; Pickett, 941 F.2d at 418. In addition, the guidelines explicitly state that race is "not relevant in the determination of a sentence." U.S.S.G. Sec. 5H1.10. ² Therefore, the impact of the enhanced penalties for crack on African-Americans does not give the district court the authority to depart downward. Thompson, 27 F.3d at 679; Maxwell, 25 F.3d at 1401.

III. Relief from the Statutory Minimum Sentence under Sec. 3553(f)

The district court held Baker responsible for 113 grams of crack cocaine and imposed the mandatory minimum sentence of ten years of imprisonment and five years of supervised release. See 21 U.S.C Sec. 841(b)(1)(A)(iii). Until recently, a defendant could receive a sentence below the statutory minimum only if the government made a motion for a departure based on the defendant's substantial assistance to authorities. See United States v. King, 62 F.3d 891, 893 n. 1 (7th Cir.1995); United States v. DeMaio, 28 F.3d 588, 591 (7th Cir.1994); cf. 18 U.S.C. Sec. 3553(e); U.S.S.G. Sec. 5K1.1. In 1994, Congress passed the Mandatory Minimum Sentencing Reform Act (MMSRA), which limits the applicability of statutory minimum sentences. See 18 U.S.C. Sec. 3553(f). ³ Essentially, Sec. 3553(f) directs that statutory minima shall not apply to first-time, non-violent drug offenders who were not organizers of criminal activity and who have made a good-faith effort to cooperate with the government.

Baker argues that he qualifies for relief from the statutory minimum under Sec. 3553(f). If the statutory minimum were inapplicable, Baker's sentencing range under the guidelines would be 87-108 months. The district court held that Baker did not qualify for relief from the statutory minimum because he did not truthfully provide all of the information concerning his offense to the government prior to sentencing. See 18 U.S.C. Sec. 3553(f)(5). ⁴ Baker argues that this ruling was erroneous for several reasons.

A. Stipulation of Facts

In his plea agreement, Baker stipulated to the following facts of his offense:

From about October 1992 until April 1994 co-defendant Robert "Base" Arrington entered into an agreement with other persons including Howard Baker to distribute cocaine base (crack) in Bloomington, Illinois, and elsewhere. As part of this agreement Arrington or those he conspired with transported "crack" from the Chicago, Illinois area to Bloomington. Arrington and those he conspired with then distributed the "crack" in Bloomington and elsewhere.

During the time of the conspiracy, various vehicles were used by Arrington and others to transport money and "crack." Baker and others utilized pagers, telephones, and several apartments and houses to assist in the distribution of the "crack." On February 28, 1994, Baker delivered "crack" cocaine to a confidential informant in Maywood, Illinois.

Baker never made any further attempts to cooperate with the government nor did he reveal any additional details concerning his crime. He contends, however, that this stipulation of facts was sufficient to satisfy Sec. 3553(f)(5).

Baker notes that the government never requested that he provide any additional information. Consequently, he argues, he should not be expected to provide what the government apparently does not desire. This argument, however, misconstrues the purpose behind Sec. 3553(f). Congress enacted the MMSRA in order to remedy an inequity in the old system, which allowed relief from statutory minimum sentences only if the government made a motion to reward the defendant's substantial assistance. The government generally makes substantial assistance motions only for defendants who provide new or useful information. Thus, under the old system, defendants who had more information to provide fared better, and these were often higher-level dealers whose greater involvement in criminal activity resulted in their having more information. "Mules," lower-level dealers, or defendants whose co-conspirators had already talked to the government often had no new or useful information to trade. Even if they told the authorities everything that they knew, they did not receive departures under Sec. 3553(e) and often received longer sentences than other, more culpable defendants. See Gerald W. Heaney, The Reality of Guideline Sentencing: No End to Disparity, 28 Am.Crim.L.Rev. 161, 198-99 (1991); cf. United States v. Torres, 33 F.3d 130, 132 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 767, 130 L.Ed.2d 664 (1995).

The legislative history of Sec. 3553(f) reveals that Congress passed the MMSRA in order to address this problem. See Mandatory Minimum Sentencing Reform Act of 1994, H.R.Rep. No. 103-460, 103rd Cong., 2d Sess. (1994) ("Ironically, due to the current operation of mandatory minimums, mitigating factors that are recognized in the guidelines and generally are considered in drug cases do not apply to the least culpable offenders except in rare instances."). Section 3553(f) was intended to benefit defendants who wished to cooperate with the government (and in fact did everything they could to cooperate) but simply had no new or useful information to provide. ⁵ But Sec. 3553(f) was intended to benefit only those defendants who truly cooperate. Thus, to qualify for relief under Sec. 3553(f), a defendant must demonstrate to the court that he has made a good faith attempt to cooperate with the authorities. See United States v. Wrenn, 66...