U.S. v. Doe

Citation934 F.2d 353,290 U.S.App.D.C. 65
Decision Date24 May 1991
Docket NumberNo. 90-3027,90-3027
PartiesUNITED STATES of America, Appellant, v. Jane DOE, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

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.

Concurring opinion filed by Circuit Judge D.H. GINSBURG.

MIKVA, Chief Judge:

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.

I.

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 ("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.").

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 ("It is difficult to conceive of a parallel situation in the law where substantial liberty interests and consequences provided for by statute are beyond the power of inquiry by anyone."). 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.

II.

We have jurisdiction to hear this appeal under 18 U.S.C. Sec. 3742(b) (1988) (permitting government to appeal an otherwise final sentence that was "imposed in violation of law" or "imposed as a result of an incorrect application of the sentencing guidelines"). See United States v. Chotas, 913 F.2d 897, 899 (11th Cir.1990) (holding that "government's claim that the district court lacked the authority to depart under Sec. 5K1.1 in the absence of a governmental motion presents a cognizable claim on appeal under Sec. 3742(b)(2) as a misapplication of the sentencing guidelines"), 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) (finding jurisdiction to hear defendant's constitutional challenge to substantial assistance provision under 18 U.S.C. Sec. 3742(a)(1), which permits defendants to appeal sentences "imposed in violation of law"); 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 (discussing Sec. 3553(e) in connection with defendant Stephaney Roberts, who was indicted for distribution of cocaine base and whose sentencing is not before this court).

Preliminaries aside, we turn to the merits.

A. Substantive Due Process Concerns

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) (holding that the sentencing process "must satisfy the requirements of the Due Process Clause" and that a criminal defendant "has a legitimate interest in the character of the procedure which leads to the imposition of sentence").

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) (finding sentence based on "materially untrue" assumptions "inconsistent with due process"); Gardner, 430 U.S. at 362, 97 S.Ct. at 1206-07 (due process requires that defendant in capital proceeding be allowed to explain or deny information underlying sentence); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion) (sentencer in capital proceeding may not, consistent with due process, be precluded from considering any mitigating circumstances or information proffered by defendant). 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) (noting that "the scope of judicial discretion with respect to a sentence is subject to congressional control"); Lockett, 438 U.S. at 605, 98 S.Ct. at 2965 (noting that "the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes").

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) (finding that defendant who sought to have court consider his cooperation absent a government motion had no "constitutional right to present evidence of mitigating circumstances prior to his sentencing"), 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...

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