U.S. v. Bogle, No. 88-5700

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before RONEY, Chief Judge, HATCHETT and ANDERSON; HATCHETT
• Citation: 855 F.2d 707
• Docket Number: No. 88-5700
• Decision Date: 26 August 1988
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Beverly BOGLE, Defendant-Appellee.

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855 F.2d 707 UNITED STATES of America, Plaintiff-Appellant,
v.
Beverly BOGLE, Defendant-Appellee. No. 88-5700. United States Court of Appeals,
Eleventh Circuit. Aug. 26, 1988.

Dexter Lehtinen, U.S. Atty., William F. Jung, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellant.

Donald A. Purdy, Jr., Deputy Gen. Counsel, U.S. Sentencing Com'n, Washington, D.C., for amicus curiae U.S. Sentencing Com'n.

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Theodore J. Sakowitz, Federal Public Defender, Stewart Abrams, Asst. Federal Public Defender, Miami, Fla., for defendant-appellee.

Benson B. Weintraub, Benedict P. Kuehne, Sonnett, Sale & Kuehne, Miami, Fla., for amicus curiae Nat. Ass'n of Criminal Defense Lawyers.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, Chief Judge, HATCHETT and ANDERSON, Circuit Judges.

BY THE COURT:

Appellee Beverly Bogle was arrested and charged with importation and possession of cocaine at the Miami Airport on November 11, 1987. She subsequently pled guilty to the importation charge in exchange for the government's dropping the possession charge. After the guilty plea but prior to sentencing, Bogle filed a motion challenging the constitutionality of the new federal sentencing guidelines. See 28 U.S.C. Sec. 991 et seq. (establishing the Sentencing Commission and empowering it to promulgate sentencing guidelines). The United States District Court for the Southern District of Florida, sitting en banc, consolidated this case with seven other cases for the purpose of considering the constitutional challenges to the guidelines. ¹

On June 15, 1988, the en banc court declared the guidelines unconstitutional. United States v. Bogle, 689 F.Supp. 1121, (S.D.Fla.1988). The government moved for a stay of the decision, and the district court denied the motion on June 30, 1988. That same day, Bogle was sentenced to five years in prison pursuant to the system of sentencing in use prior to the promulgation of the guidelines. On August 11, 1988, the district court issued an opinion explaining its decision to deny the stay. United States v. Bogle, 693 F.Supp. 1102, 1988 WL 84983 (S.D.Fla.1988).

The government has appealed the case on the merits. In the meantime, however, the government has filed a motion asking for an emergency stay of the district court's decision pending the resolution of the case on the merits. See Fed.R.App.P. 8. It is that motion alone which we consider today. Because we find that the government has not met the heavy burden necessary to justify a stay, we deny the motion.

STANDARD OF REVIEW

At the outset, the parties disagree as to what standard we should use in considering the stay motion. Normally we consider those factors set forth in Eleventh Circuit Rule 27-1(b): (1) the likelihood the moving party will prevail on the merits; (2) the prospect of irreparable injury to the moving party if relief is withheld; (3) the possibility of harm to other parties if relief is granted; and (4) the public interest. Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.), cert. denied, 479 U.S. 889, 107 S.Ct. 289, 93 L.Ed.2d 263 (1986).

The government argues that this is not a normal case. The Supreme Court has taken the unusual step of granting certiorari before judgment in United States v. Mistretta, --- U.S. ----, 108 S.Ct. 2818, 100 L.Ed.2d 920 (1988), in order to resolve the constitutional questions concerning the guidelines. ² Thus, the government reasons that we should use the standard that the

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Supreme Court uses when deciding whether to stay an appellate court mandate pending resolution of a case in the Supreme Court. That standard requires: (1) a reasonable probability that four justices will vote to grant certiorari; (2) a fair prospect that the court will reverse the decision below; (3) a showing of irreparable injury if a stay is not granted; and (4) a balancing of the equities. Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 2, 65 L.Ed.2d 1098 (1980) (Brennan, J., Circuit Justice); Deaver v. United States, --- U.S. ----, 107 S.Ct. 3177, 97 L.Ed.2d 784 (1987) (Rehnquist, C.J., Circuit Justice).

The government's argument has some force in the unusual circumstances of this case. However, we need not decide between the standards. In this case, the decision whether to grant the stay rests primarily on the balancing of the equities, and with regard to that aspect, the standards are essentially the same. That we couch our discussion in terms of the Eleventh Circuit factors does not indicate a substantive decision favoring that standard. It is simply a framework for the discussion.

LIKELIHOOD OF SUCCESS

We need not linger long over this factor. That the constitutional issues in this case are complex and close is evidenced by the numerous conflicting decisions reached by federal courts which have considered them. ³ For this reason, our decision denying

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the stay is based primarily upon the balancing of the equities discussed below, i.e., the failure of the government to make the necessary showing of irreparable injury if a stay is not granted, and appellee's successful demonstration of irreparable injury if a stay is granted.

IRREPARABLE INJURY TO THE GOVERNMENT

The government's claims of harm in the absence of a stay are primarily claims of administrative inconvenience. First, the government argues that if a stay is not granted, it will have to appeal every criminal case in order to preserve its rights should its position ultimately prevail in the Supreme Court. However, if a stay is granted, it is likely that almost every defendant who is adversely affected by that stay would appeal. Thus, although we are sympathetic to the government's increased workload, it is caused by the uncertainty of the situation rather than the particular resolution reached by the district court.

Second, the government contends that there is a heavier administrative burden in switching from the old system to the guideline system than vice versa. In other words, if the initial sentencing is under the pre-guideline system, and the Supreme Court ultimately sustains the validity of the guidelines, the government argues that there will be severe administrative burdens in resentencing under the guidelines with all of the required factfinding. On the other hand, if the initial sentencing is under the guideline system, and the Supreme Court ultimately invalidates same, the government argues that lesser administrative burdens would be involved in resentencing. On the present record, we are not persuaded that the administrative burdens would...