U.S. v. Harris

• Decision Date: 11 July 1989
• Docket Number: No. 88-3223,88-3223
• Citation: 876 F.2d 1502
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Curtis Patrick HARRIS and Beverly Ann Holmes, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1502

876 F.2d 1502

58 USLW 2131

UNITED STATES of America, Plaintiff-Appellee, v. Curtis Patrick HARRIS and Beverly Ann Holmes, Defendants-Appellants.

No. 88-3223.

United States Court of Appeals Eleventh Circuit.

July 11, 1989.

Armando Garcia, Asst. Federal Public Defender, Tallahassee, Fla., for harris.

Daniel A. McKeever, Live Oak, Fla., for Holmes.

Lyndia P. Barrett, Stephen S. Dobson, III, Asst. U.S. Attys., for U.S.

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

Before JOHNSON and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

Beverly Ann Holmes and Curtis Patrick Harris appeal from their judgments of sentence entered following conviction for conspiracy to possess with intent to distribute more than 50 grams of cocaine and possession with intent to distribute more than 5 grams of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Appellant Holmes contends that the evidence is insufficient to sustain her conviction. Both appellants challenge the constitutionality of the Sentencing Guidelines promulgated under the Sentencing Reform Act of 1984 ("the Act"), Pub.L. No. 98-473, 98 Stat. 2017 (codified as amended at 18 U.S.C. Sec. 3551 et seq. and 28 U.S.C. Sec. 991 et seq.), under which their sentences were imposed. Appellants also contest the district court's calculation of credit for pre-trial detention.

I. STATEMENT OF THE CASE AND OF THE FACTS

In the fall of 1987, appellants were living together with another roommate in the roommate's apartment in a housing complex in Gainesville, Florida. On November 27, 1987, appellants were asleep in the apartment, when a Drug Enforcement Administration agent, federal narcotics officers and several Gainesville police officers entered and arrested appellants pursuant to a state warrant. Cocaine was found under the mattress on which appellants had been sleeping and inside and on top of a bedroom dresser; a gun and cash were also found. The arrest was by state officers, acting on a warrant issued by a state court judge. The state officers, however, had been alerted by a federal narcotics agent who attempted but failed to find a federal magistrate to issue the warrant.

Holmes and Harris were each charged in a two-count indictment and tried by a jury. At the trial, the government relied upon the testimony of appellants' roommate, a co-conspirator with appellants, and a third witness who resided at the housing complex. The jury returned verdicts of guilty. The court, pursuant to the new Sentencing Guidelines, sentenced Holmes to two concurrent prison terms of 131 months, with five years of supervised release, and Harris to two concurrent 210-month terms, with five years of supervised release.

II. DISCUSSION

A. Sufficiency of the Evidence

Holmes contends that her mere presence in the apartment and her association with Harris are insufficient to support the conviction. The government proffered evidence not simply of Holmes' mere presence, but of her "presence under a particular set of circumstances," United States v. Cruz-Valdez, 773 F.2d 1541, 1545 (11th Cir.1985) (en banc), cert. denied, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986). The government then bolstered the circumstantial evidence with the testimony of three witnesses familiar with appellants' activities. We conclude that the evidence and the inferences that may be drawn from it, viewed in the light most favorable to the government, permitted a reasonable trier of fact to find Holmes guilty beyond a reasonable doubt on both counts. United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

B. Constitutionality of the Sentencing Guidelines

Appellants both contend that the Sentencing Reform Act of 1984 and the Guidelines promulgated thereunder are unconstitutional. Their arguments that the Act permits an improper delegation of legislative authority and violates separation of powers principles were rejected in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Appellants' third contention, however, that the Act denied them of their due process right to an individualized sentencing procedure, was not raised or specifically discussed in Mistretta.

Appellants argue that the Guidelines unconstitutionally restrict a sentencing judge's discretion by requiring the mechanical application of a sentencing procedure and preventing the judge from weighing various factors relating to factual and personal background: age, education, vocational skills, physical, mental and emotional condition, previous employment record, and family or community ties. Holmes contends, specifically, that the Guidelines prohibited the district court from considering the humanitarian circumstances of her case; she had no prior record and her daughter and sister were killed in an automobile accident one month before Holmes began living with Harris.

Appellants rely upon the reasoning of the district court for the Western District of Pennsylvania, which found that due process requires a defendant to have the opportunity to challenge the weight accorded various facts which enter into the sentencing formula. U.S. v. Frank, 682 F.Supp. 815 (W.D.Pa.1988). ¹ The Court of Appeals for the Third Circuit, however, vacated the judgment of sentence entered by the district court and remanded the case for resentencing, because it found that the Act and Guidelines, while "substantially circumscrib[ing] the discretion which the district judges formerly exercised over sentencing," did not violate a defendant's due process rights. U.S. v. Frank, 864 F.2d 992, 1008 (3d Cir.1988).

Likewise, the Court of Appeals for the Second Circuit rejected the argument that a defendant has a due process right to individualized sentencing in a non-capital case. United States v. Vizcaino, 870 F.2d 52 (2d Cir.1989). More recently, the Court of Appeals for the Fifth Circuit also upheld the Guidelines against a due process challenge. United States v. White, 869 F.2d 822 (5th Cir.1989) (per curiam).

We, too, recognize that the Guidelines restrict the discretion of the district court, to some extent, in sentencing. Congress has the authority to impose such a restriction, however. As the Supreme Court stated in Mistretta:

Historically, federal sentencing--the function of determining the scope and extent of punishment--never has been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of government. Congress, of course, has the power to fix the sentence for a federal crime, United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820), and the scope of judicial discretion with respect to a sentence is subject to congressional control. Ex Parte United States, 242 U.S. 27 [37 S.Ct. 72, 61 L.Ed. 129] (1916). Congress early abandoned fixed-sentence rigidity, however, and put in place a system of ranges within which the sentencer could choose the precise punishment. See United States v. Grayson, 438 U.S. 41, 45-46 [98 S.Ct. 2610, 2613-14, 57 L.Ed.2d 582] (1978). Congress delegated almost unfettered discretion to the sentencing judge to determine what the sentence should be within the customarily wide range so selected. This broad discretion was further enhanced by the power later granted the judge to suspend the sentence and by the resulting growth of an elaborate probation system.

Mistretta, 109 S.Ct. at 650.

With the discretion Congress delegated to the judiciary ever broadening, wide disparities in sentences for similar crimes abounded, leading to the significant legislative reform enacted in 1984. Congress' aim in creating the Sentencing Commission was to reduce the sentencing disparities and "establish sentencing policies and practices for the Federal criminal justice system that ... provide certainty and fairness in meeting the purposes of sentencing." 28 U.S.C. Sec. 991(b)(1)(B). Under the new legislation, Section 3553 of Title 18 requires the court to impose a sentence within the relatively narrow range established by the Sentencing Commission. The court may find, however, that certain aggravating or mitigating circumstances, not adequately considered by the Sentencing Commission in formulating the Guidelines, dictate a departure from the prescribed range. 18 U.S.C. Sec. 3553(b). In that case, the court must state "the specific reason for the imposition of a sentence different from that described." 18 U.S.C. Sec. 3553(c).

The Guidelines embody the most recent congressional pronouncement on sentencing. Congress thereby exercised its power to specify the sentence for a federal crime and to control judicial discretion in imposing the sentence. The Guidelines essentially set the minimum and maximum penalty the sentencer may impose for given categories of offenses and defendants.

With this characterization, we are bound by this Court's decision in United States v. Holmes, 838 F.2d 1175 (11th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 2829, 100 L.Ed.2d 930 (1988), which held that a mandatory minimum sentencing provision does not deprive a defendant of an individualized sentencing procedure in violation of due process rights. If a mandatory minimum sentence withstands due process scrutiny, so must the sentencing procedure of the Guidelines. The latter even permits the sentencing judge to depart from the prescribed range, if warranted by certain aggravating or mitigating circumstances. 18 U.S.C. Sec. 3553(b). ² See also Smith v. U.S. 284 F.2d 789, 791 (5th Cir.1960) ("[I]t is entirely proper that Congress determine what constitutes the crime and its degrees and what punishment shall be meted out by a court after the judicial ascertainment of guilt. In the wisdom of Congress this may at times be a minimum--maximum fine or imprisonment, or both. In others, as here, it may be mandatorily...