U.S. v. La Guardia

• Decision Date: 25 April 1990
• Docket Number: Nos. 89-1620,JIMENEZ-MINALL,89-1655,D,s. 89-1620
• Parties: , 58 USLW 2675 UNITED STATES of America, Appellee, v. Julio LA GUARDIA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Eredia Josefaefendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1010

902 F.2d 1010

111 A.L.R.Fed. 859, 58 USLW 2675

UNITED STATES of America, Appellee, v. Julio LA GUARDIA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Eredia Josefa JIMENEZ-MINALLA, Defendant, Appellant.

Nos. 89-1620, 89-1655.

United States Court of Appeals First Circuit.

April 25, 1990.

Frank D. Inserni, Hato Rey, P.R., for defendant, appellant Julio LaGuardia.

Ramon Garcia Garcia, Santurce, P.R., on brief, for defendant, appellant Eredia Josefa Jimenez-Minalla.

Antonio R. Bazan, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for U.S.

Before TORRUELLA and SELYA, Circuit Judges, and RE, ^* Judge.

SELYA, Circuit Judge.

This appeal involves the constitutionality of 18 U.S.C. Sec. 3553(e) (1988) and section 5K1.1 of the federal sentencing guidelines. ¹ We hold that the contested provisions, while perhaps of dubious merit, do not deprive defendants of any constitutional entitlement.

I. BACKGROUND

In mid-1988, a 5-count indictment was returned by a federal grand jury in Puerto Rico against appellants Julio LaGuardia, Eredia Josefa Jimenez-Minalla (Jimenez), and a third codefendant with regard to the importation of nearly 200 kilograms of cocaine. The defendants were charged with violating 21 U.S.C. Secs. 843(b), 846, and Sec. 959(a)(1), and with aiding and abetting, 18 U.S.C. Sec. 2. Several weeks later, the same trio was arrested in Florida with an even larger shipment of cocaine. This misadventure led to federal charges in the Southern District of Florida.

Appellants pled guilty in the Florida case. After being sentenced there to identical 18-year terms of imprisonment (plus supervised release), they pled guilty to conspiracy in the Puerto Rico case in return for the government's agreement to seek dismissal of the remaining charges and to ask the court to impose sentences concurrent with those previously imposed in Florida.

The United States District Court for the District of Puerto Rico obliged in some measure. The court dismissed all of the indictment except for count 1. On that count, the court meted out sentences concurrent with the earlier sentences. But, there was a rub. Using a guideline calculation which appellants do not contest on appeal, the court found each appellant to be a career offender subject to a sentence ranging between 30 years and life imprisonment. The court sentenced defendants at the nadir of the applicable guideline range, 30 years apiece. The government did not ask for, and the court did not volunteer, a downward departure. These appeals followed.

II. THE ISSUE

These are rifle-shot appeals, aimed at specific provisions of the Sentencing Reform Act (Reform Act) and the guidelines. ² Both the statute, 18 U.S.C. Sec. 3553(e), and the guidelines, U.S.S.G. Sec. 5K1.1, provide in substance that where a defendant has furnished substantial assistance in the investigation or prosecution of another criminal, the sentencing court may make a downward departure "[u]pon motion of the government." Appellants contend that they rendered such substantial assistance to the United States, but to no avail; the government stubbornly eschewed the filing of any motion. In appellants' view, the challenged provisions give too large a stick to the prosecutor, infracting defendants' due process rights in several ways, e.g., by impermissibly shackling the sentencing court's discretion, by unlawfully restricting the information which the sentencing court can consider, and by unfairly limiting defendants' ability to influence sentencing judgments.

III. APPELLATE JURISDICTION

Despite the fact "that a criminal defendant cannot normally ground an appeal" on the sentencing court's discretionary decision not to essay a downward departure from the sentencing guidelines, United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990); see also United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989), we believe we have jurisdiction to determine the instant appeals. When, as here, defendants challenge not the judge's exercise of discretion but the constitutionality of the scheme under which they were sentenced, their appeals are properly before us under 18 U.S.C. Sec. 3742(a)(1) (defendant may appeal sentence "imposed in violation of law"). See United States v. Tholl, 895 F.2d 1178, 1180 n. 2 (7th Cir.1990) (court of appeals has jurisdiction over constitutional challenge to guidelines under Sec. 3742(a)(1)); see also United States v. Colon, 884 F.2d 1550, 1553 (2d Cir.) ("only sensible view of Sec. 3742(a)(1) is that it was largely intended to ensure that the appellate review previously available for claims that a sentence was in excess of the statutory maximum, was based on impermissible considerations, or was the result of some other demonstrable error of law ... would be retained"), cert. denied, --- U.S. ----, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989); cf. United States v. Tucker, 404 U.S. 443, 448, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1982) (even before Reform Act liberalized right to appeal from sentencing decisions, defendant could appeal if sentencing court relied on improper, inaccurate information).

IV. PROCEDURAL DEFAULT

Appellate jurisdiction being assured, another obstacle lurks at the threshold. In the district court, appellants neither attacked the government's failure to move for a downward departure nor flew the banner of constitutional breach which they hoist before us. Ordinarily, such an omission would be fatal; our usual praxis is to ignore on appeal issues which were not seasonably raised below. See, e.g., United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987); United States v. Argentine, 814 F.2d 783, 791 (1st Cir.1987); Nogueira v. United States, 683 F.2d 576, 580 (1st Cir.1982). Yet, the exception sometimes proves the rule: an appellate court has discretion, in an exceptional case, to reach virgin issues. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); United States v. One Urban Lot, Etc., 885 F.2d 994, 1001 (1st Cir.1989); United States v. Doe, 878 F.2d 1546, 1554 (1st Cir.1989); United States v. Krynicki, 689 F.2d 289, 291 (1st Cir.1982). While that power should be exercised sparingly, it may appropriately be invoked in this instance.

We need not paint the lily. In Krynicki, we catalogued the criteria which made a situation so exceptional as to encourage an appellate tribunal to relax the raise-or-waive rule. See id. at 291-92. These appeals fit the mold rather well: the new issue is strictly a question of law; it is "almost certain to be presented in identical terms in other cases," United States v. Golon, 511 F.2d 298, 301 (1st Cir.), cert. denied, 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 483 (1975); ³ and if the defendants' constitutional claim has merit, it would be a rank miscarriage of justice to allow their sentences to stand. Furthermore, the point can be resolved with certitude on the existing record, a factor that often inclines a court to entertain a pivotal argument for the first time on appeal. See Singleton, 428 U.S. at 121, 96 S.Ct. at 2877; cf. United States v. Parrilla Bonilla, 648 F.2d 1373, 1386 (1st Cir.1981) (refusing to consider new argument on appeal where correct resolution doubtful).

When all is said and done, "[r]ules of practice and procedure are devised to promote the ends of justice, not to defeat them." Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941). Because appellants' challenge to the statutory scheme and the guidelines raises an issue of constitutional magnitude which, if meritorious, could substantially affect these, and future, defendants, we believe we should address their arguments despite the fact that they were not made below. Accord United States v. Justice, 877 F.2d 664 (8th Cir.) (reaching and discussing identical issue notwithstanding defendant's failure seasonably to assert constitutional challenge), cert. denied, --- U.S. ----, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989).

V. THE CONSTITUTIONAL CLAIM

Turning to the thrust of the argument on appeal, we consider whether the challenged statute and/or guideline abridged defendants' constitutional rights. To be sure, the contested provisions inhibit a judge's discretion to impose a sentence below the guideline minimum on grounds of the defendant's cooperation, limiting such downward departures to cases in which the government takes the initiative. ⁴ Appellants claim that this restriction transgresses due process, principally by "eliminat[ing] or interfer[ing] with the sentencing court's right to [employ] judicial discretion in individualized sentencing." Appellant's Brief in No. 89-1620, at p. 1. We disagree.

A

It is by now apodictic that the sentencing guidelines effectively stunt the wide discretion which district judges formerly enjoyed in criminal sentencing. See United States v. Aguilar-Pena, 887 F.2d 347, 353 (1st Cir.1989) ("Times have changed. Under existing law, district courts, in passing sentence, no longer write on a blank page, circumscribed only by the statutory limits appertaining to the offense of conviction."); see also United States v. Allen, 873 F.2d 963, 966 (6th Cir.1989); United States v. Seluk, 873 F.2d 15, 17 (1st Cir.1989) (per curiam); United States v. Vizcaino, 870 F.2d 52, 54 (2d Cir.1989); United States v. Frank, 864 F.2d 992, 1008 (3d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989). Uniformity in sentencing was undeniably a primary goal of Congress and the Sentencing Commission in establishing a neoteric sentencing framework. See 28 U.S.C. Sec. 991(b)(1)(B) (Supp. V 1987); U.S.S.G. Ch. 1, Part A, Introduction 3; see also United States v. Aguilar-Pena, 887 F.2d at 352; United States v. Seluk, 873 F.2d at 17; United States v. Vizcaino, 870 F.2d at 53-54. Thus, it is no exaggeration to say that the guidelines were conceived and developed...