U.S. v. Lattimore, 91-3454

• Decision Date: 19 October 1992
• Docket Number: No. 91-3454,91-3454
• Citation: 974 F.2d 971
• Parties: UNITED STATES of America, Appellant, v. Robert Norman LATTIMORE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 971

974 F.2d 971

UNITED STATES of America, Appellant, v. Robert Norman LATTIMORE, Appellee.

No. 91-3454.

United States Court of Appeals Eighth Circuit.

Submitted May 12, 1992.

Decided Sept. 3, 1992.

Rehearing Denied Oct. 19, 1992.

Margaret T. Burns, Asst. U.S. Atty., Minneapolis, Minn., argued, for appellant.

Arthur R. Martinez, Minneapolis, Minn., argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

The United States appeals from a sentence of 72 months levied upon Robert Lattimore by the District Court after his plea of guilty to one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Lattimore's range under the United States Sentencing Guidelines was 78 to 97 months, but the District Court departed downward, citing the Sentencing Commission's failure to take properly into consideration the mandatory minimum sentences contained in 21 U.S.C. § 841(b), 787 F.Supp. 170 (D.Minn.1991). We reverse.

I.

The facts of this case are not in dispute. Lattimore, pursuant to a negotiated plea with the government, pleaded guilty to one count of possession with intent to distribute 23 grams of crack cocaine. Following a presentence investigation, the District Court determined that Lattimore had a total offense level of 28 and a criminal-history category of I, which produced a sentencing range of 78 to 97 months. In addition, under 21 U.S.C. § 841(b)(1)(B)(iii), the defendant was subject to a mandatory minimum sentence of five years.

Before sentencing the defendant, the District Court notified the parties that it was contemplating a departure from the sentencing range because of what it considered the Sentencing Commission's inadequate consideration of mandatory minimum sentencing. After hearing arguments from the government, the Court departed downward, stating:

Under 18 United States Code Section 3553(b), a court may depart from a presumptive sentence when they find ... "an aggravating or mitigating circumstance of a kind or degree not adequately taken into consideration by the Sentencing Commission...." The guidelines should be applied in any crime or could be applied for any crime. But here it is applied particularly to a crime which invokes a statutory minimum. And it appears in my review of the sentencing guideline materials that the Guideline Commission has inadequately considered the impact of the mandatory minimum in guideline calculations.

In Section 5G1.1, the guidelines direct that where a mandatory minimum sentence is lower than the guideline range, the statutory maximum would be the guideline sentence. Similarly, a statutory minimum, which is greater than a guideline range, the statutory minimum would be the guideline sentence. In other words, the statutory minima and maxima serve to expand the guideline range in those specific circumstances. In any other case, according to 5G1.1, the sentence may be imposed "at any point within the applicable guideline range as long as the sentence is not greater than the statutory maximum or less than the minimum." The guidelines do not specifically distinguish this situation, where the statutory minimum is less than the Guideline range: here, 78 to 97 months. The statutory minimum is 60 months. 18 U.S.C. § 841(b)(1)(B).

In this Court's view, the statutory minimum is Congress's own clear expression ... of the mandatory minimum for a particular offense, and the Court however, finds no recitation in the Guidelines reflecting the Commission's consideration of that fact. Accordingly, I will depart from the presumptive sentence by incorporating the statutory minimum. Thus, the Court would find the applicable Sentencing Guideline range, then, to be from 60 months to 97 months.

Sentencing Transcript 9-11. In addition to these statements, the Court noted the potential disparate impact upon minorities of the Sentencing Guidelines' treatment of crack offenses.

Following these statements, the Court imposed a sentence of 72 months--the minimum 60 months for the drug offense and 12 additional months for possession of a .32 caliber revolver at the time of the offense. Lattimore also received a four-year term of supervised release and a $50.00 special assessment. The government now appeals, arguing that the departure was unwarranted. This is a question of law which we review de novo. United States v. Werlinger, 894 F.2d 1015, 1016 (8th Cir.1990).

II.

With the passage of the Anti-Drug Abuse Act of 1986, Congress established basic sentencing levels for crack cocaine offenses. Under 21 U.S.C. § 841(b)(1)(B)(iii), a person convicted of possession with intent to distribute five grams or more of crack cocaine is subject to a mandatory minimum of five years and a maximum of 40 years in prison. In the present case, the defendant pleaded guilty to possessing with intent to distribute 23 grams of crack. Under the Sentencing Guidelines, he was assigned a sentencing range of 78 to 97 months. The District Court, finding that his sentencing range should begin at the mandatory minimum, departed downward to 60 months, the mandatory minimum under 21 U.S.C. § 841(b). This was error. A reading of § 2D1.1 and the related commentary clearly indicates that the Sentencing Commission adequately considered the established mandatory minimums when it created its sentencing ranges. The commentary to § 2D1.1 states:

The base offense levels in § 2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the levels established by statute, and applied to all unlawful trafficking. Levels 32 and 26 in the drug quantity table are the distinctions provided by the Anti-Drug Abuse Act; however, further refinement of drug amounts is essential to provide a logical sentencing structure for drug offenses. To determine these finer distinctions, the Commission consulted numerous experts and practitioners, including authorities at the Drug Enforcement Administration, chemists, attorneys, probation officers and members of the Organized Crime Drug Enforcement Task Forces, who also advocate the necessity of these distinctions.

The base offense levels at level 26 and 32 establish Guideline ranges with a lower limit as close to the statutory minimum as possible; e.g., level 32 ranges from 121 to 151 months, where the statutory minimum is ten years or 120 months.

In the present case, the defendant had a limited criminal history, which resulted in his being given the lowest criminal history category, I. Had he possessed an amount of crack between five grams (the statutory minimum) and 20 grams, with no other aggravating circumstances, he would have received a base offense level of 26 and a sentencing range of 63 to 78 months. The bottom of this level is close to the mandatory minimum established in 21 U.S.C. § 841(b)(1)(B)(iii). In this case, however, Lattimore possessed 23 grams of crack. This amount raised his offense level to 28 and produced a Guideline range of 78 to 97 months. This sentence reflects the aim of the Guidelines to provide incremental and graduated sentencing. Such a sentencing scheme does not run afoul of the mandatory minimum created by Congress. This sentencing range fits comfortably within the statutory range of 5 to 40 years provided in 21 U.S.C. § 841(b)(1)(B)(iii) and reflects the appropriate sentence for this particular defendant and this particular crime.

Section 5G1.1 further evidences the Commission's consideration of the mandatory minimums created by Congress. Under § 5G1.1(a), if the statutory maximum sentence is less than the minimum sentence contained in the Sentencing Guidelines, the statutory maximum will be the defendant's sentence. Thus, if the defendant is subject to a statutory maximum of five years (60 months), and his Sentencing Guideline range is 78 to 97 months, defendant's sentence would be 60 months. In the reverse situation, under § 5G1.1(b), if the statutory minimum sentence is greater than the maximum sentence under the Guidelines, the defendant's sentence will be raised to meet the statutory minimum. Thus, if the defendant is facing a five year mandatory minimum sentence (like Lattimore in this case) and he is given a Guideline range of 46 to 57 months, his sentence will be five years, the mandatory minimum. Furthermore, § 5G1.1(c) states that the defendant may be sentenced to any term of months contained within his applicable Guideline range, provided that he is sentenced to no more than the statutory maximum and no less than the statutory minimum. These statements reflect the Commission's regard for the mandatory minimums established in 21 U.S.C. § 841(b).

III.

We deem appropriate also to address the District Court's statements concerning racial disparity in sentencing under the Guidelines. The District Court stated:

[T]his Court is mindful of the recent observations made by the chairman of the Sentencing Guideline Commission, which have been invoked in the public press, showing that the courts and the Commission are recognizing that disparities in contravention of the goals of the sentencing guidelines are being imposed based upon the extraordinary penalties invoked for crack cocaine as well as on the imposition of mandatory minimums. The fact that those disparities are now rearing their head and they are being brought to the attention of the Congress, the popular press, the Sentencing Guideline Commission, this Court would be blind were it to turn its view from that.

Chairman Wilkins of the Commission has observed that those sentences have again reintroduced racial disparities and variances, the very kind that the guidelines were designed to reduce. The mandatory--the publication called "Mandatory Minimum Penalties," or the section of the Guideline Commission Report, "Mandatory Minimum Penalties in the Federal Criminal Justice System," which report was produced in August of 1991,...