U.S. v. Bayles, 90-2129

Citation923 F.2d 70
Decision Date18 January 1991
Docket NumberNo. 90-2129,90-2129
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jeffrey BAYLES, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

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 Cir.1989) (no). Neither in the district court nor in this one did Bayles argue that the status of Sec. 5K1.1 as a policy statement matters. We therefore do not pursue the subject, which recently cleaved the eighth circuit in half. United States v. Gutierrez, 917 F.2d 379 (8th Cir.1990) (in banc) (affirmance by equally divided court). Instead we address the only claim Bayles presents: that the due process clause of the fifth amendment entitles him to a lower sentence.

United States v. Lewis, 896 F.2d 246 (7th Cir.1990), and United States v. Valencia, 913 F.2d 378, 386 (7th Cir.1990), reject the argument that Sec. 5K1.1 violates the due process clause by putting in the prosecutor's pocket the keys to a departure from the guidelines. Bayles insists that the gatekeeping power created by Sec. 5K1.1 and confirmed by Lewis and Valencia may not be exercised arbitrarily, and that the due process clause therefore requires case-by-case review of the reasons the prosecutor failed to authorize a departure. Such an inquiry would reveal, Bayles contends, that the prosecutor acted arbitrarily, hence unconstitutionally, in his case.

A search for poorly-justified conduct is substantive rather than procedural. Invocations of substantive due process have fared poorly in recent years. E.g., Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). One court of appeals has said that Sec. 5K1.1 allows "prosecutors unlimited and unreviewable discretion in deciding whether to make substantial assistance motions" and held it constitutional as so understood. United States v. Huerta, 878 F.2d 89, 93 (2d Cir.1989). "Unlimited" is too broad. Prosecutorial decisions whether (and on what charge) to proceed, albeit at the core of executive discretion, may be reviewed to ensure that the prosecutor did not base a decision on prohibited criteria such as race or speech. See Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Perhaps review of a failure to make a Sec. 5K1.1 motion is the same as review of the decision to prosecute on a greater rather than a lesser offense, or to select an offense with a steep mandatory minimum, or to rebuff overtures to plea bargaining and insist on either a trial or a plea to all...

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12 cases
  • U.S. v. Kelley
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 5 Febrero 1992
    ...invidious motives or to punish the exercise of constitutional rights, there could be a constitutional violation, United States v. Bayles, 923 F.2d 70, 72 (7th Cir.1991); Doe, 934 F.2d at 361, and our own cases have suggested that prosecutorial misconduct, including "arbitrary" failure to ma......
  • U.S. v. Doe
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 24 Mayo 1991
    ..."determination of dissatisfaction" with the defendant's assistance "cannot be made invidiously or in bad faith"); United States v. Bayles, 923 F.2d 70, 72 (7th Cir.1991) (suggesting that review of prosecutor's decision not to depart would be available under principles applicable to other pr......
  • U.S. v. Smith
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 14 Enero 1992
    ...United States v. Lewis, 896 F.2d 246 (7th Cir.1990); United States v. Valencia, 913 F.2d 378, 386 (7th Cir.1990); United States v. Bayles, 923 F.2d 70 (7th Cir.1991). Smith asks us to hold nonetheless that an arbitrary refusal to make a motion does not block a district judge from departing ......
  • U.S. v. Poff
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 14 Febrero 1991
    ...policy statement like Sec. 5K2.13 does not exhaust the possible grounds for departure, a claim we adverted to in United States v. Bayles, 923 F.2d 70, 71-72 (7th Cir.1991). We did not address the claim in Bayles, and will not do so here since it has not been raised.) Appellant's claim with ......
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