U.S. v. Barker

• Decision Date: 20 September 1985
• Docket Number: Nos. 84-1240,s. 84-1240
• Citation: 771 F.2d 1362
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Robert Wayne BARKER, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. William Bernard McKINNEY, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Jeffrey Martin ENGLE, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. George Leland TIMMONS, III, Defendant/Appellant. UNITED STATES of America, Plaintiff/Appellee, v. Jason ENGLE, Defendant/Appellant. to 84-1242, 84-1244 and 84-1280.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1362

771 F.2d 1362

UNITED STATES of America, Plaintiff/Appellee, v. Robert Wayne BARKER, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. William Bernard McKINNEY, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. Jeffrey Martin ENGLE, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. George Leland TIMMONS, III, Defendant/Appellant.

UNITED STATES of America, Plaintiff/Appellee, v. Jason ENGLE, Defendant/Appellant.

Nos. 84-1240 to 84-1242, 84-1244 and 84-1280.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1985.

Decided Sept. 20, 1985.

Joseph P. Russoniello, U.S. Atty., Sanford Svetcov, Asst. U.S. Atty., Rodolfo Orjales, San Francisco, Cal., for plaintiff/appellee.

Michael Pancer, San Diego, Cal., and Victor Sherman, Nasatir, Sherman & Hirsch, Los Angeles, Cal., for defendants/appellants.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL, CANBY and NORRIS, Circuit Judges.

CANBY, Circuit Judge:

Each appellant pleaded guilty to one count arising from participation in a single shipment of marijuana that was part of a large and protracted marijuana smuggling operation. Each was sentenced to the maximum term permitted by statute. On appeal, each contends that the district court abused its ordinarily wide discretion in sentencing by failing adequately to consider individualized factors. We agree, vacate appellants' sentences, and remand for individualized resentencing in accord with this opinion.

BACKGROUND

From 1977 to 1981, a large-scale drug smuggling organization known as the "Coronado Company" imported and distributed approximately twenty-four tons of marijuana from Thailand. More than twenty-five persons participated. The five appellants here, Robert Barker, William McKinley, Jeffrey Engle, Jason Engle, and George Timmons, were each charged with multiple substantive and conspiracy counts stemming from their involvement in the Company's importation of five tons of marijuana in 1981.

Count One charged each with conspiring to import five tons of marijuana in violation of 21 U.S.C. Sec. 963. Count Two charged defendants with conspiracy to possess and distribute. Counts Three and Four charged that Jeffrey and Jason Engle had actually imported the marijuana in violation of 21 U.S.C. Sec. 952, and had possessed it with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(6).

Separate superceding informations were filed against Barker, McKinney, and Timmons. Barker and McKinney were charged with unlawful possession, respectively, of 140 and 45 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Timmons was charged with conspiracy to possess 180 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846.

Each defendant ultimately pleaded guilty to a single count, and remaining counts were dismissed upon government motion. Barker, McKinney, and Timmons each entered guilty pleas to the superceding informations. Jeffrey and Jason Engle each pleaded guilty to Count One of the indictment.

Each defendant's involvement in the smuggling operation was described by his respective counsel at the sentencing hearing. Jeffrey and Jason Engle were crew members on a boat that delivered the marijuana from Thailand. Timmons invested $100,000 in the operation and was repaid with 180 pounds of marijuana. Barker invested $50,000 and received 45 pounds of marijuana in return. McKinney "lent" $75,000 to the principals of the smuggling ring, and was also repaid with 45 pounds. Although the entire conspiracy extended for over five years, the record does not reflect any other involvement in the smuggling operation by any of these defendants.

By the time appellants entered their guilty pleas, most of the other members of the "Coronado Company" had been sentenced in separate proceedings. After comparing relative levels of culpability and considering the sentences imposed in other districts on more prominent members of

                the Company, 1 the government recommended prison sentences for each defendant ranging from one year for crew members Jeffrey and Jason Engle, to 18 months for the "investors" Barker, McKinney, and Timmons.  The court, however, rejected these recommendations.  Describing marijuana smuggling as "a plague on society," and expressing its dismay at what it viewed as the government's leniency, the court sentenced each defendant to the maximum five-year term permitted by statute. 2   This appeal follows
                

DISCUSSION

A. Reviewability

It is generally accepted that trial courts are accorded virtually unfettered discretion in imposing sentence. See Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); but see 3 C. Wright, Federal Practice and Procedure Sec. 533 at 168-69 (1982) (rule arguably based on misconstruction of 1891 statute creating courts of appeals); Woosley v. United States, 478 F.2d 139, 141-42 (8th Cir.1973) (en banc) (discussing 1891 statute and noting that Supreme Court support for this proposition "is pure dicta" ). While there are exceptions, see United States v. Garrett, 680 F.2d 650, 652 & n. 3 (9th Cir.1982), a sentence is generally not subject to appellate review if it is within statutory limits. See United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); United States v. Lopez-Gonzales, 688 F.2d 1275, 1276 (9th Cir.1982). ³

The exceptions to this rule, while limited, are well supported. Courts have remanded for resentencing "where the sentencing court in effect refuses to exercise its discretion," United States v. Wardlaw, 576 F.2d 932, 938 (1st Cir.1978), and where the district court "exceeded the bounds of its sentencing discretion" by failing to individualize sentences. Id. In Lopez-Gonzales, we held that because trial courts are obligated actually to exercise their discretion, we may conduct a limited review of the sentencing process to insure that discretion has, in fact, been exercised by the district court. 688 F.2d at 1276 (citing Dorszynski, 418 U.S. at 443, 94 S.Ct. at 3052). In Garrett, we noted that sentences imposed on a mechanical basis have been vacated as an abuse of the sentencing judge's discretion. 680 F.2d at 652 n. 3 (citing Woosley, 478 F.2d at 141-43); see also United States v. Hartford, 489 F.2d 652, 655 (5th Cir.1974) (rigid policy of imposing maximum sentence for narcotics violations both "an abuse of judicial discretion" and "under no reasonable conception an exercise of judicial discretion").

Whether the failure to individualize sentences is described as an abuse or an abdication of discretion, however, it is the failure itself which warrants defendants' resentencing. It is that failure to which we turn.

B. Individualized Sentencing

Few legal principles are either as ancient ⁴ or deeply etched ⁵ in the public mind as the notion that punishment should fit the crime. This familiar maxim, however, is only half-true. "[I]n the present century the pendulum has been swinging away from ... the philosophy that the punishment should fit the crime and toward one that the punishment should [also] fit the criminal." W. LaFave & A. Scott, Handbook on Criminal Law Sec. 5 at 25 (1972).

While we do not suggest that this trend has been without reverses, past or present, the concept of individualized sentencing is firmly entrenched in our present jurisprudence. As the Supreme Court has observed,

[p]unishment should fit the offender and not merely the crime. The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.

Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949) (citation omitted); United States v. Foss, 501 F.2d 522, 527 (1st Cir.1974); Wardlaw, 576 F.2d at 938. In each case, a criminal sentence must reflect an individualized assessment of a particular defendant's culpability rather than a mechanistic application of a given sentence to a given category of crime. As we said in Lopez-Gonzales, 688 F.2d at 1276-77,

[t]he exercise of sound discretion requires consideration of all the circumstances of the crime.... The sentencing judge is required to consider all mitigating and aggravating circumstances involved. There is a strong public interest in the imposition of a sentence based upon an accurate evaluation of the particular offender and designed to aid in his personal rehabilitation. Thus, appellate courts have vacated sentences reflecting a preconceived policy always to impose the maximum penalty for a certain crime.

Accord Foss, 501 F.2d at 527; United States v. Thompson, 483 F.2d 527, 529 (3d Cir.1973).

In Lopez-Gonzales, the district court had stated that it automatically imposed the maximum sentence whenever an illegal alien is apprehended after flight and pursuit. 688 F.2d at 1275; see Thompson, 483 F.2d at 529. Although the court here did not announce a fixed or predetermined policy to sentence drug offenders to the maximum statutory term, a full reading of the record does reveal that the court sentenced defendants as essentially undifferentiated units, ignoring both their differences from one another, and from others who might be charged under the same statute. This failure adequately to individualize sentences ignores the goal that punishment fit the criminal.

This is not to suggest that any, or even all, of the defendants here could not legitimately have been sentenced to the maximum statutory term. Our concern is less the appropriateness of a given criminal sentence than the propriety of the process through which sentence was imposed. Specifically, do the four corners of the record indicate that the district court actually and adequately considered the factors necessary to insure that each individual defendant was assessed...