U.S. v. Daiagi, 88-5161

• Citation: 892 F.2d 31
• Decision Date: 15 December 1989
• Docket Number: No. 88-5161,88-5161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott Robert DAIAGI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 31

892 F.2d 31

2 Fed.Sent.R. 182

UNITED STATES of America, Plaintiff-Appellee, v. Scott Robert DAIAGI, Defendant-Appellant.

No. 88-5161.

United States Court of Appeals Fourth Circuit.

Argued July 26, 1989.

Decided Dec. 15, 1989.

Price O. Gielen (Bruce L. Mann, Baltimore, Md., on brief), for defendant-appellant.

James G. Warwick (Breckinridge L. Willcox, U.S. Atty., Stephen L. Purcell, Asst. U.S. Atty., Richmond, Cal., on brief), for plaintiff-appellee.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The defendant-appellant (hereafter "defendant") pled guilty to a conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846. The conspiracy began in June 1987 and continued until defendant's arrest in Baltimore, Maryland on December 20, 1987, in possession of 500 grams of cocaine. After his plea, a pre-sentence investigation report was prepared and filed with the district court. The defendant filed two objections to the report. The first raised the constitutionality of the Guidelines for Sentencing established pursuant to the Sentencing Reform Act of 1984. That contention was concluded adversely to the defendant by the Supreme Court's decision in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), a decision we followed in United States v. Bolding, 876 F.2d 21 (4th Cir.1989). His other objection was directed at the report's assumption that a probationary sentence was prohibited by Section 3561(a)(1). It was his contention that his "cooperation, age, character, and background ... strongly argue that a probationary sentence is appropriate in this case," and that under Section 3553(e) and the circumstances of his case he was entitled to a probationary sentence. This objection was denied by the district court. At the subsequent sentencing hearing, defendant's counsel offered evidence of defendant's cooperation with law enforcement officers; he submitted letters testifying to defendant's character and background; and he also presented a report by a clinical psychologist that the defendant had a personality condition which required "a remedial environment where he can be tutored academically." Defendant's counsel argued particularly that defendant's age should be considered in mitigation. The district judge concluded that, under the Guidelines, age "is not a [sentencing] factor unless the person is so old that it would kill him to go to jail." ¹ He also held that a probationary sentence in a Class A or Class B felony case was prohibited by 18 U.S.C. § 3561(a)(1). He then sentenced the defendant to 24 months' imprisonment, to be followed by a three-year term of supervised release.

The defendant has appealed the sentence under 18 U.S.C. § 3742(a)(1) and (2). He contends the district judge erred in ruling that he lacked the power to impose, in an appropriate case, a probationary sentence, in failing to consider age in sentencing, and in calculating the sentencing range under the Guidelines by including the amount of cocaine involved in the possession and distribution of cocaine occurring before the effective date of the Guidelines. We affirm in part but remand one issue to the district court for further explication.

We first address the defendant's contention that the sentencing court possessed the authority to impose probation as a sentence in this case. The issue is whether 18 U.S.C. § 3561(a)(1), enacted as a part of the Sentencing Reform Act of 1984, is limited in part by Section 3553(e), enacted as a part of the Comprehensive Crime Control Act of 1984, almost two years later. Section 3553(e) was intended by Congress to provide an incentive to defendants to furnish assistance to law enforcement officials by moderating the rigorous inflexibility of mandatory sentences where the offender had rendered substantial assistance to the Government. To this end, the district judge was given the power, on motion of the Government attesting to the defendant's assistance, to "impose a sentence below a level established by statute as minimum sentence...." The Sentencing Commission in turn, in Application Note 1 to § 5K1.1, has stated that "[u]nder circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n), as amended, substantial assistance in the investigation or prosecution of another person who has committed an offense may justify a sentence below a statutorily required minimum sentence." The Commission, however, has avoided deciding whether the prohibition against probation in Class A and B felony offenses under Section 3561(a)(1) should be treated in the same manner as a mandatory minimum term of imprisonment and made subject to the later provisions of Section 3553(e). It declared that such a question was one that "may have to be addressed by the courts." See the Commission's Answer to Question 42 as reported in the Commission's November 30, 1988 issue of "Questions Most Frequently Asked About the Sentencing Guidelines."

As we view Section 3553(e), there is no logical distinction between the two situations, i.e., between the mandatory minimum sentence and the prohibition against probation. The statute was intended to free the sentencing judge to exercise, on motion of the Government, a prudent discretion by disregarding, where there has been substantial governmental assistance by the defendant, both the affirmative mandate to impose a minimum prison sentence and the negative mandate of Section 3561(a)(1) not to grant probation to a Class A or a Class B offender. Under this reconciliation of the two statutes, the ban on probation in sentencing in Class A and Class B cases is maintained save in the rare case where the assistance of the defendant has been sufficiently substantial that the Government determines to move the sentencing court to impose a sentence below the statute's minimum or without the prohibition on a probationary sentence. ² We accordingly conclude that the district judge could have granted probation in this case. ³ Such conclusion conforms to the rule of lenity, which holds that penal statutes are to be strictly construed against the Government and in favor of the defendant. Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971).

The Government argues that, even though it may be that Section 3553(e) empowers the district judge to disregard the prohibition of Section 3561(a)(1) in a case qualifying under the former statute, the district judge in this case made it perfectly clear that in his opinion he would not have imposed on the defendant a probationary sentence. Under those circumstances, the Government posits that the district judge's error in assuming he lacked such power would be harmless. It accordingly contends that we should affirm without remand to the district court. We do not agree. It may be that probation in this case is remote. The defendant's participation...