U.S. v. Jensen

• Decision Date: 28 June 2007
• Docket Number: No. 06-2284.,No. 06-2497.,06-2284.,06-2497.
• Citation: 493 F.3d 997
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Rodney Jay JENSEN, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

493 F.3d 997

UNITED STATES of America, Appellee/Cross-Appellant, v. Rodney Jay JENSEN, Appellant/Cross-Appellee.

No. 06-2284.

No. 06-2497.

United States Court of Appeals, Eighth Circuit.

Submitted: January 9, 2007.

Filed: June 28, 2007.

Counsel who presented argument on behalf of the appellant was Jay E. Denne, Sioux City, Iowa.

Counsel who presented argument on behalf of the appellee was Ian K. Thorn, AUSA, Cedar Rapids, Iowa. Also appearing on the brief was Shawn S. Wehde, special AUSA, Sioux City, Iowa.

Before COLLOTON and GRUENDER, Circuit Judges, and GOLDBERG, Judge.¹

COLLOTON, Circuit Judge.

Rodney Jensen pled guilty to conspiring to distribute more than 500 grams of methamphetamine, and to possessing with intent to distribute more than 500 grams of methamphetamine. Because he had sustained two previous convictions for drug trafficking offenses, Jensen was subject to a mandatory term of life imprisonment, pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851. As part of his plea agreement, Jensen cooperated with law enforcement in the investigation and prosecution of other persons, and the government moved the district court, pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e), to reduce Jensen's sentence from life imprisonment to a term of years.

The district court granted the motions and reduced Jensen's sentence to 180 months' imprisonment. The court specified that, for purposes of its analysis, it equated life imprisonment with a term of 360 months' imprisonment. The court then reduced that sentence in two increments: first, to 216 months' imprisonment based on Jensen's substantial assistance in the investigation and prosecution of others, and second, to 180 months' imprisonment based on other factors set forth in 18 U.S.C. § 3553(a).

Neither party is happy with the sentence. Jensen argues that because he was 59 years old at the time of sentencing, and his personal life expectancy was thus less than 360 months, the district court should have adopted a shorter term of imprisonment as a "starting point" for analysis, and then reduced his sentence from there. The government contends that because the sentencing table published in the United States Sentencing Guidelines Manual extends as high as 405 months' imprisonment, and because the Sentencing Commission has defined life sentences as 470 months in its annual Sourcebook for Federal Sentencing Statistics, the district court should have used a greater term of imprisonment as the starting point for its analysis. The government also argues that the district court was not permitted to reduce Jensen's sentence based on factors set forth in 18 U.S.C. § 3553(a) that are unrelated to assistance.

Taking the last point first, we agree with the government that the district court's reduction of sentence from 216 months to 180 months was contrary to law. When the government files a motion under 18 U.S.C. § 3553(e), the court has "limited authority" to sentence a defendant below the statutory minimum. In United States v. Williams, 474 F.3d 1130 (8th Cir.2007), we held that this reduction in sentence below the statutory minimum must reflect only the defendant's substantial assistance. Id. at 1132. The court may not reduce the sentence further based on factors unrelated to assistance, such as those set forth in 18 U.S.C. § 3553(a), because such a reduction exceeds the limited authority granted by § 3553(e). Id. The district court did not have the benefit of our decision in Williams, but it is now clear that the second increment in the court's reduction was not permissible.

The remaining question is whether the district court abused its discretion in reducing Jensen's sentence from life imprisonment to 216 months. Jensen says the court should have analyzed the reduction by equating "life" with Jensen's actual life expectancy of 20.49 years, and then reducing the sentence from there based on substantial assistance. We reject Jensen's contention as inconsistent with the structure of the advisory guidelines. Departures and reductions based on substantial assistance are to be considered in the context of the advisory guidelines system, see United States v. Saenz, 428 F.3d 1159, 1162 (8th Cir.2005), and that system contemplates a range of incremental punishments ranging from 0-6 months' imprisonment up to Jensen's pre-assistance sentence of life imprisonment. USSG Ch. 5, Pt. A (sentencing table). These punishments are fixed without regard to the offender's life expectancy, and many offenders — including offenders of Jensen's age who are viewed by the Sentencing Commission as less serious than Jensen — are subject to terms of imprisonment of greater than 20.49 years. Thus, it would be anomalous to treat Jensen as the equivalent of an offender who is subject to a term of only 20 years under the guidelines, when other less serious offenders who earn sentence reductions are subject to a higher "starting point" in the sentencing scheme.

The government, on the other hand, contends the district court should have analyzed the reduction by equating "life" with a term of 470 months' imprisonment. We did hold in United States v. Keller, 413 F.3d 706 (8th Cir.2005), that a district court's use of 470 months as a "starting point" was not "in error," id. at 711, but we are not convinced that it must be the starting point in every case. Cf. United States v. Selby, 184 Fed.Appx. 589, 591 (8th Cir.2006) (per curiam) (unpublished) (holding in post-Keller decision that district court did not err in using 405 months as a starting point for departure from life imprisonment). The 470-month figure is derived from the Sentencing Commission's Sourcebook of Federal Sentencing Statistics, where the Commission has explained that "to reflect life expectancy of federal criminal defendants more precisely and to provide more accurate length of imprisonment information, life sentences are now defined as 470 months." United States Sentencing Commission, 2005 Sourcebook of Federal Sentencing Statistics, App. A (Post-Booker), at 2. There is no indication that the Commission's selection of 470 months was a policy judgment about the incremental punishment that should accompany an increase in an offender's offense level from Level 42 (which carries a minimum advisory sentence of 360 months) to Level 43 (which prescribes life imprisonment). Prior to fiscal year 1993, the Commission defined life imprisonment as 360 months, and the change to 470 months was based purely on empirical data concerning the life span of present-day inmates. Id.

We are doubtful about the district court's use of 360 months' imprisonment as a starting point, because that figure represents no incremental punishment from Level 42 to Level 43. In addition, the guideline sentencing table contemplates sentencing ranges that go as high as 405 months, so it would be odd to equate the maximum sentence of life with a lesser term of 360 months. See Selby, 184 Fed. Appx. at 591. Nonetheless, while the parties are fixated on selecting a specific number of months as a starting point, we find that exercise unnecessary to resolve this case. A starting point expressed in a number of months is essential to the analysis only if one...