U.S. v. Lewis, 88-3030

Decision Date20 February 1990
Docket NumberNo. 88-3030,88-3030
Citation896 F.2d 246
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Eric Stephen LEWIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Christian R. Larsen, Ann M. Kisting, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Michael E. McMorrow, Milwaukee, Wis., for defendant-appellant.

Before RIPPLE, MANION and KANNE, Circuit Judges.

MANION, Circuit Judge.

Eric Lewis pleaded guilty to one count of armed bank robbery, 18 U.S.C. Sec. 2113(a), and one count of distributing cocaine, 21 U.S.C. Sec. 841(a)(1). The district court sentenced Lewis on the bank robbery conviction under the federal sentencing guidelines. (Lewis' sentence on his cocaine distribution conviction is not at issue on this appeal.) In calculating Lewis' criminal history, the court assessed points against him for prior convictions for operating a motor vehicle while under the influence of alcohol (OWI). The court found that the applicable guideline range called for a prison sentence between 51 and 63 months.

Sentencing Guideline Sec. 5K1.1 provides that upon the government's motion, a sentencing court may depart from the applicable guideline range in sentencing a defendant if 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." Although Lewis had cooperated with state and federal authorities after his arrest, the government did not move the district court to depart from the guidelines. Consequently, the district court did not depart, and sentenced Lewis to 54 months imprisonment, a sentence within the applicable guideline range.

Lewis contends that Sec. 5K1.1's requirement that the government file a motion before the sentencing court can depart from the guidelines because of a defendant's "substantial assistance" violates the Sentencing Commission's statutory mandate. 28 U.S.C. Sec. 994(n) (Supp. V 1987) provides that

[t]he [Sentencing] Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by a statutory minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

According to Lewis, Sec. 5K1.1 violates Sec. 994(n)'s command because if the government does not make a motion, the district judge may not depart from the guidelines for substantial assistance. Thus, argues Lewis, Sec. 5K1.1 does not assure that the trial court take a defendant's substantial assistance into account.

Section 994(n) does not specify exactly how the Sentencing Commission must take a defendant's substantial assistance into account in the guidelines. Instead, Congress has delegated broad authority to the Sentencing Commission to provide for recognizing substantial assistance in the guidelines. Since Congress left it to the Sentencing Commission to fill in the details, we must uphold Sec. 5K1.1 unless it is "arbitrary, capricious, or manifestly contrary to the statute." Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984); see also United States v. White, 869 F.2d 822, 827 (5th Cir.1989).

Section 5K1.1 reflects a reasonable interpretation of Sec. 994(n)'s mandate. The government motion requirement is "predicated on the reasonable assumption that the government is in the best position to supply the court with an accurate report of the defendant's assistance...." White, 869 F.2d at 829; see also United States v. Ayarza, 874 F.2d 647, 653 (9th Cir.1989). And, contrary to Lewis' argument, Sec. 994(n), on its face, does not require that the sentencing judge consider a defendant's substantial assistance in every case. Section 994(n) requires only that the guidelines recognize the "general appropriateness" of lowering a sentence for substantial assistance. It is possible for the guidelines to recognize that as a general principle it is appropriate to impose a lower sentence on a defendant who substantially assists the government while at the same time not absolutely requiring the district court to consider this factor in every case.

Moreover, when Congress enacted Sec. 994(n), it also enacted parallel provisions granting district courts the express authority to reduce sentences for defendants' substantial assistance. Both those provisions condition the court's exercise of that authority on a government motion. This, in itself, shows that it was reasonable for the Sentencing Commission to include the government motion requirement in Sec. 5K1.1. Congress enacted what is now Sec. 994(n) as Sec. 1008(1) of the Anti-Drug Abuse Act of 1986, Pub.L. 99-570, 100 Stat. 3207-7. In Sec. 1007 of the Anti-Drug Abuse Act, Congress also enacted what is now 18 U.S.C. Sec. 3553(e) (Supp. V 1987), and in Sec. 1009 Congress amended Fed.R.Crim.P. 35(b). See 100 Stat. 3207-7 to 3207-8. 18 U.S.C. Sec. 3553(e) grants district courts the authority upon the government's motion to impose a sentence below a statutory minimum to reflect a defendant's substantial assistance. Section 3553(e) also provides that the court shall impose the lower sentence "in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to [18 U.S.C. Sec. 994]." Similarly, the Anti-Drug Abuse Act amended Rule 35(b) to provide that a district court may lower a sentence to reflect a defendant's post-sentencing substantial assistance and that any sentence a district court so lowers shall be lowered "in accordance with the guidelines and policy statements...." See Pub.L. 99-570, Sec. 1009, 100 Stat. 3207-8. Before its amendment, Rule 35(b) required a government motion before a district court could lower a sentence to reflect a defendant's substantial assistance; the 1986 amendment did not change that requirement. See Historical Note to 18 U.S.C.A. Rule 35 (West Supp.1989).

In Sec. 3553(e) and Rule 35(b), Congress gave courts limited power to lower sentences to reflect a defendant's substantial assistance. See United States v. Huerta, 878 F.2d 89, 91 (2d Cir.1989). Since Congress conditioned the courts' power to lower sentences to reflect substantial assistance on the government's motion, it was not unreasonable for the Sentencing Commission to conclude that Congress intended for it to include a government motion requirement in any guideline it wrote providing for lower sentences to reflect substantial assistance. This is especially so given that both Sec. 3553(e) and Rule 35(b) require courts to impose lower sentences to reflect substantial assistance "in accordance with the guidelines and policy statements"; a statute empowering a court to impose a lower sentence only upon government motion but requiring the court to impose the sentence according to a guideline that did not require a government motion would not make much sense. In fact, given Sec. 3553(e) and Rule 35(b), one could argue that the Sentencing Commission would have violated Sec. 994(n) by not including a government motion requirement in Sec. 5K1.1. At any rate, comparing Sec. 994(n) with Sec. 3553(e) and Rule 35(b) demonstrates at least that the Sentencing Commission reasonably interpreted Sec. 994(n) in drafting Sec. 5K1.1, and that Sec. 5K1.1's government motion requirement thus does not violate Sec. 994(n). See Ayarza, 874 F.2d at 653 n. 2.

Lewis also contends that Sec. 5K1.1's government motion requirement violates his right to due process. Lewis presents three separate but related arguments. First, Lewis contends that the government motion requirement improperly restricts the sentencing judge's traditional discretion. Second, Lewis contends that the government motion requirement deprives him of his right to present accurate and reliable information to the trial court concerning his substantial assistance. Third, Lewis contends that the government motion requirement presents an unacceptable risk of prejudgment or bias because the prosecutor determines whether a court may consider departing from the guidelines because of a defendant's substantial assistance.

All of Lewis' attacks on Sec. 5K1.1 are premised on the notion that a criminal defendant has a right to an individualized sentence, imposed by a judge, and based upon consideration and weighing of all arguably relevant factors. We rejected that notion in United States v. Pinto, 875 F.2d 143 (7th Cir.1989), where we held that a defendant has no right to an individualized sentence set by a judge. Id. at 145. Accord United States v. Allen, 873 F.2d 963 966 (6th Cir.1989); United States v. Brittman, 872 F.2d 827 (8th Cir.1989); United States v. Vizcaino, 870 F.2d 52, 53-57 (2d Cir.1989); United States v. White, 869 F.2d at 825; United States v. Frank, 864 F.2d 992, 1010 (3d Cir.1988). As we explained in Pinto, there is nothing "traditional" about judges exercising discretion to set individualized sentences. Indeed, "[j]udicial discretion comes late to our history." Pinto, 875 F.2d at 145. Congress has always had the power to control judicial sentencing discretion or even eliminate such discretion by fixing precise, rather than indeterminate, sentences. See id.; see also Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 650, 102 L.Ed.2d 714 (1989) ("the scope of judicial discretion with respect to a sentence is subject to congressional control").

Congress' power to control judicial sentencing discretion (a power Congress has delegated to the Sentencing Commission) carries with it the power to control what factors a court may consider in setting a sentence. Thus, Lewis has no constitutional right to any "substantial assistance" provision in the guidelines. See United States v. Francois, 889 F.2d 1341, 1344 (4th Cir.1989); United States v. Musser, 856 F.2d...

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