U.S. v. Doe
Decision Date | 24 May 1991 |
Docket Number | No. 90-3027,90-3027 |
Citation | 934 F.2d 353,290 U.S.App.D.C. 65 |
Parties | UNITED STATES of America, Appellant, v. Jane DOE, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Criminal Action No. 89-0074).
John R. Fisher, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Thomas E. Zeno, and Ann L. Rosenfield, Asst. U.S. Attys., were on the brief, Washington, D.C., for appellant.
Charles B. Wayne (appointed by the Court) Washington, D.C., for appellee.
Before MIKVA, Chief Judge, EDWARDS and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
This appeal raises statutory and constitutional challenges to the substantial assistance provision of the United States Sentencing Guidelines. See United States Sentencing Guidelines ("U.S.S.G.") Sec. 5K1.1 (1990). The district court concluded that section 5K1.1, which permits a court to depart from the guidelines to recognize a defendant's cooperation with authorities only upon motion of the government, violates due process. See United States v. Roberts, 726 F.Supp. 1359, 1373-77 (D.D.C.1989). Although we find the issues presented to be significant and challenging, we reverse the district court's decision.
Jane Doe was indicted on charges of possessing twenty-two kilograms of marijuana with intent to distribute. See 21 U.S.C. Secs. 841(a), 841(b)(1)(D) (1988). She subsequently pled guilty to the indictment and, although no agreement was ever executed, cooperated with the prosecutor and law enforcement authorities in the hopes of obtaining a lower sentence. On several occasions, Doe provided D.C. drug interdiction officers with names, addresses, telephone numbers, and other information identifying alleged drug traffickers in several cities. The D.C. authorities contacted local officials in those cities, but otherwise showed little interest in Doe's information. The U.S. Attorney's Office never filed a motion requesting the court to depart downward from the sentencing guidelines based upon Doe's assistance. See U.S.S.G. Sec. 5K1.1 ().
The district court held that section 5K1.1 violates a defendant's due process rights by "preclud[ing her] from contesting the refusal of the prosecution to acknowledge [her] substantial cooperation with law enforcement authorities." See Roberts, 726 F.Supp. at 1374, 1375 (). The court appeared to base its finding principally on "substantive" due process notions--namely, the right to be sentenced on the basis of true and accurate information, and the right to contest the facts relied on by the court and to question the proceedings. See id. at 1374-75. The court objected particularly to the "Departure Committee" used by the U.S. Attorney for this district to determine when to move for departures, calling it a "secret" body "composed of individuals other than counsel prosecuting the case" and "operating under standards and procedures unknown to the Court and to the defendants." Id. at 1375-76.
As a remedy for section 5K1.1's perceived constitutional infirmities, the district court proposed to review the government's decision not to move for a downward departure under an "arbitrary and capricious" standard and scheduled an evidentiary hearing to explore Doe's assistance. See id. at 1375, 1377. At that hearing, the district court determined that Doe had in fact provided substantial assistance to authorities and concluded that the government acted arbitrarily and capriciously in refusing to file a departure motion. Based primarily on its finding of assistance, the court departed from the applicable guideline range (which prescribed between 21 and 27 months incarceration and a fine between $5,000 and $50,000) by imposing a sentence of four months incarceration, two years of supervised release, and a $1,000 fine. The government's appeal followed.
We have jurisdiction to hear this appeal under 18 U.S.C. Sec. 3742(b) (1988) ( ). See United States v. Chotas, 913 F.2d 897, 899 (11th Cir.1990) (, )cert. denied, --- U.S. ----, 111 S.Ct. 1421, 113 L.Ed.2d 473 (1991). Cf. United States v. LaGuardia, 902 F.2d 1010, 1012 (1st Cir.1990) ( ); United States v. Kuntz, 908 F.2d 655, 656-57 (10th Cir.1990). Our standard of review is de novo because the district court's decision that it possessed authority to depart from section 5K1.1 even absent a government motion presents a pure question of law. See Chotas, 913 F.2d at 900.
Although the district court applied its holding to 18 U.S.C. Sec. 3553(e) (1988), the statutory provision governing departures below mandatory minimum sentences, as well as to U.S.S.G. Sec. 5K1.1, only the latter provision is at issue in this appeal. The statute under which Doe was indicted contains no minimum sentence. See 21 U.S.C. Sec. 841(b)(1)(D). See also Roberts, 726 F.Supp. at 1360-61 ( ).
Preliminaries aside, we turn to the merits.
The district court based its decision to override section 5K1.1's government motion requirement principally on substantive due process concerns applicable to the criminal sentencing process. As the district court correctly noted, "[i]t is well established by the decided cases that an accused has a right to due process during the sentencing stage." Roberts, 726 F.Supp. at 1374. Indeed, we have previously emphasized that the Fifth Amendment's protections against deprivation of liberty without due process "are not suspended with the pronouncement of guilt, but continue to operate in the sentencing process." United States v. Lemon, 723 F.2d 922, 933 (D.C.Cir.1983). See Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-05, 51 L.Ed.2d 393 (1977) ( ).
Guided by these tenets, courts have identified certain rights so fundamental in the sentencing context as to be compelled by due process. See, e.g., Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948) ( ); Gardner, 430 U.S. at 362, 97 S.Ct. at 1206-07 ( ); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion) ( ). Given the nature of the penalty, it may not be surprising that most of the fundamental rights thus identified have involved capital sentencing proceedings.
In a companion appeal, we recently rejected the district court's suggestion that due process entitles criminal defendants to an individualized, judicially-crafted sentence.. See United States v. Mills, 925 F.2d 455, 462-63 (D.C.Cir.1991). We relied on the Supreme Court's repeated holding that the scope of judicial sentencing discretion is a policy matter within the control of Congress. See, e.g., Mistretta v. United States, 488 U.S. 361, 364, 109 S.Ct. 647, 650, 102 L.Ed.2d 714 (1989) ( ); Lockett, 438 U.S. at 605, 98 S.Ct. at 2965 ( ).
We similarly reject the related suggestion that section 5K1.1's government motion requirement offends due process by preventing a criminal defendant from presenting mitigating evidence (e.g., her cooperation or assistance) at sentencing. Although the Supreme Court has held that a defendant must be allowed to present potentially mitigating evidence in a capital sentencing proceeding, see Lockett, 438 U.S. at 604, 98 S.Ct. at 2964, that right has never been extended to the non-capital context. See United States v. Levy, 904 F.2d 1026, 1035 (6th Cir.1990) (, )cert. denied, --- U.S. ----, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991). Moreover, several other circuits have observed that the fact that Congress could have made assistance entirely irrelevant to sentencing leaves defendants...
To continue reading
Request your trial-
U.S. v. White
...1. Standard of Review As White and the government agree, this question is one of law that we review de novo. See United States v. Doe, 934 F.2d 353, 356 (D.C.Cir.), cert. denied, 502 U.S. 896, 112 S.Ct. 268, 116 L.Ed.2d 221 (1991). 2. Permissibility of Separate Sentences Under the test enun......
-
In re Sealed Case
...United States v. Doe, 940 F.2d 199, 203 n.7 (7th Cir. 1991);United States v. Romolo, 937 F.2d 20, 23 (1st Cir. 1991);United States v. Doe, 934 F.2d 353, 359 (D.C. Cir. 1991). Section 3553(e) governs the circumstances under which a district court may select a sentence below a mandatory minim......
-
U.S. v. Revis
...for exercising her constitutional rights, or is based on some unjustifiable standard or classification such as race." United States v. Doe, 934 F.2d 353, 358 (D.C.Cir.) cert. 502 U.S. 896, 112 S.Ct. 268, 116 L.Ed.2d 221 (1991) (emphasis added). Thus, a defendant may bring an action for spec......
-
U.S. v. Kelley
...the district court's decision that it had no power to depart is a pure question of law. 18 U.S.C. § 3742(a)(1) (1988); United States v. Doe, 934 F.2d 353, 356 (D.C.Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 268, 116 L.Ed.2d 221 (1991). Though the government argues that this case presents......
-
Sentencing
...not review a prosecutor’s decision whether to move for downward departure based on the defendant’s cooperation. United States v. Doe , 934 F.2d 353, 361 (D.C. Cir. 1991). Merely because the defendant provided substantial assistance is not sufficient for judicial intervention in the prosecut......
-
Negotiating justice: prosecutorial perspectives on federal plea bargaining in the District of Columbia.
...manner, i.e., it cannot be based on impermissible considerations, such as race, religion, or gender. United States v. Doe, 934 F.2d 353,358 (D.C. Cir. 1991), cert. denied, 502 U.S. 1067 (27.) See U.S.S.G. [section] 1B1.8 (2005). (28.) Section 1B1.8(b)(2) also provides that, if the defendant......