U.S. v. Justice

• Decision Date: 07 August 1989
• Docket Number: No. 88-2539,88-2539
• Parties: UNITED STATES of America, Appellee, v. Roger JUSTICE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 664

877 F.2d 664

2 Fed.Sent.R. 31

UNITED STATES of America, Appellee, v. Roger JUSTICE, Appellant.

No. 88-2539.

United States Court of Appeals,

Eighth Circuit.

Submitted April 10, 1989.

Decided June 8, 1989.

Rehearing and Rehearing En Banc Denied Aug. 7, 1989.

Lee T. Lawless, St. Louis, Mo., for appellant.

Patricia A. McGarry, St. Louis, Mo., for appellee.

Before FAGG, Circuit Judge, FLOYD R. GIBSON and TIMBERS, ^* Senior Circuit Judges.

FLOYD R. GIBSON, Senior Circuit Judge.

Roger Justice appeals his sentence imposed after he entered a plea of guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Justice was sentenced to 71 months imprisonment pursuant to the sentencing guidelines. For the following reasons we affirm the sentence imposed by the district court. ¹

I. BACKGROUND

Justice raises two arguments on appeal. First, he argues that the sentencing guidelines are unconstitutional and, second, he argues that the district court erred in failing to depart from the guidelines when imposing his sentence.

Justice's argument challenging the constitutionality of the guidelines was briefed prior to the recent Supreme Court decision in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Mistretta upheld the guidelines and rejected the arguments which are now raised by Justice. Accordingly, we will not discuss this issue further.

The remaining issue in this appeal challenges the district court's refusal to depart below the guidelines in assessing Justice's sentence. Justice maintains that because of his substantial cooperation with the government in investigating other criminal activity he was entitled to a sentence which departed below the guidelines. Justice also argues that the criminal history category resulting from his four prior misdemeanor convictions overstated the seriousness of his criminal background. ² The sentencing range for Justice's offense under the guidelines was 63-78 months. The district court sentenced Justice to 71 months imprisonment.

II. DISCUSSION

A. Substantial Assistance to Authorities

The government does not dispute the fact that Justice provided substantial assistance. However, the government argues that a departure below the guidelines for substantial assistance requires a motion by the government. Such a motion was not made.

We begin our analysis by noting that historically, our review of sentences has been very limited. We do not know, at this point, the extent to which the new guidelines will change our role in the sentencing process. It does appear, however, that we will be called upon to review sentences with a much greater frequency. The standard of review applicable to the sentences imposed in the pre-guideline era limited appellate review to only those sentences which were "excessive under traditional concepts of justice" or "manifestly disproportionate to the crime or the criminal." Woosley v. United States, 478 F.2d 139, 147 (8th Cir.1973) (en banc) (citations omitted). This review gave the sentencing court much discretion in arriving at its sentence. The guidelines take a great deal of discretion out of the district court's sentence determination. To some extent the sentencing has been relegated to a somewhat mechanical process. A sentencing range is determined under the guidelines and the only discretion left to the district judge is imposing a sentence within this range or in extraordinary cases the district court may exercise its discretion in granting a departure. ³ We recognize that this description of sentencing under the guidelines is an oversimplification; the point we are trying to make is that some discretion is still left to the district court. Areas in which discretion in the district court has been retained in the new guidelines were recently recognized by this court. In United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989), a panel of this court noted that

[u]nder the Guidelines, sentencing judges retain discretion to accept or reject a plea bargain, to resolve factual disputes about the appropriate base offense level, to consider adjusting that base level for mitigating and aggravating circumstances, to choose from a range of sentences, to set probation conditions, and to determine when to depart from the Guidelines. Thus, some discretion, some power to fit sentences to the individual offender, is left.

We believe that in these areas the limited scope of review applicable in the pre-guideline era retains its full vigor. Accordingly, the issues raised in this case are reviewed under the pre-guideline abuse of discretion standard.

Justice argues that 18 U.S.C. Sec. 3553(b) provides a basis for a departure below the guidelines. Section 3553(b) provides that departure from the guidelines may be warranted where there exists "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines * * * * " 18 U.S.C. Sec. 3553(b) (Supp. V 1987). We do not find this argument persuasive because it is clear that Sec. 3553(b) was intended to provide a very limited basis for departure. That section was intended to apply to those situations not addressed by the Commission in its guidelines, policy statements, and official commentary. Id. Departures under Sec. 3553(b) were intended to be quite rare. Furthermore, departure for substantial assistance to authorities was specifically dealt with by the Commission in a policy statement. See, e.g., United States v. Taylor, 868 F.2d 125, 126 (5th Cir.1989).

Section 5K1.1 provides: "Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines." Sentencing Guidelines, Chapter 5, Part K--Departures, Section 5K1.1 (emphasis added) [hereinafter Section 5K1.1 or Sec. 5K1.1].

Because the Commission has provided a policy statement relating to substantial assistance to authorities departure under Sec. 3553(b) would be improper. Any departure for substantial assistance must be made, if at all, pursuant to section 5K1.1. United States v. Taylor, 868 F.2d at 126.

In United States v. Musser, 856 F.2d 1484, 1487 (11th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989), the Eleventh Circuit rejected a challenge to the "substantial assistance" provisions contained in Fed.R.Crim.P. 35(b) ⁴ and 18 U.S.C. Sec. 3553(e). ⁵

Both provisions provide, in language similar to Sec. 5K1.1, that a motion by the government is necessary before a district court may consider a defendant's substantial assistance to authorities. In Musser the substantial assistance provisions were challenged as unconstitutional "because [they] delegate[ ] to prosecutors unbridled discretion to decide who is entitled to a sentence reduction." United States v. Musser, 856 F.2d at 1487 (footnote omitted). The Eleventh Circuit rejected this argument noting that "the only authority 'delegated' by the rule is the authority to move the district court for a reduction of sentence in cases in which the defendant has rendered substantial assistance. The authority to actually reduce a sentence remains vested in the district court * * * * " Id. (emphasis in original). Finally, the Eleventh Circuit commented that there is "no constitutional right to the availability of the 'substantial assistance' provision, and hence no grounds upon which to challenge Congress' manner of enacting it." Id.

We have several problems with Sec. 5K1.1's requirement that a motion by the government is necessary before a district judge can depart from the guidelines. First, this arrangement places discretion that has historically been in the hands of a federal judge into the hands of the prosecutor. Under the guidelines the prosecutor has the discretion whether to file a motion in a particular case. Second, whether the prosecutor has abused this discretion in refusing to file a motion in a particular case is a question that appears to be unreviewable. If a judge is powerless to depart in the absence of a motion, the prosecutor is able to exercise far greater discretion than has historically been vested in the district judge. While a district judge's actions were subject to some degree of appellate review in the pre-guideline cases, under the new guidelines there appears to be no right of review or remedy if the prosecutor refuses to file a motion. Third, the issue of whether a defendant has provided substantial assistance to authorities may be a disputed factual issue. Section 5K1.1 basically gives the prosecutor the role of the trier of fact in resolving this issue. In this regard, we note that the guideline only requires a defendant to make a "good faith effort to provide substantial assistance in the investigation or prosecution of another * * * * " Section 5K1.1 (emphasis added).

These problems we have just noted are readily apparent in the instant case where the government does not dispute that Justice has made a good faith effort to provide substantial assistance to authorities. Indeed, the government has stipulated to many of the steps that Justice has taken to aid authorities. For example, Justice attempted to carry out the delivery of drugs to his co-conspirators and he identified his colleagues and their financial backers. He provided all the identifying information he had with respect to his source of supply including a contact number. Justice also attempted to contact his source on two occasions. Finally, Justice provided information regarding other drug activities and agreed to provide grand jury and trial testimony as needed. Thus, the government's refusal to motion the court for departure under Sec. 5K1.1 in this case seems to be unreasonable in light of its stipulation.

Under these facts the...