U.S. v. Maddox

• Decision Date: 21 February 1995
• Docket Number: No. 93-5591,93-5591
• Citation: 48 F.3d 791
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Brian Scott MADDOX, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 791

48 F.3d 791

63 USLW 2551

UNITED STATES of America, Plaintiff-Appellant, v. Brian Scott MADDOX, Defendant-Appellee.

No. 93-5591.

United States Court of Appeals, Fourth Circuit.

Argued April 14, 1994.

Decided Feb. 21, 1995.

ARGUED: David J. Cortes, Asst. U.S. Atty., Raleigh, NC, for appellant. William Webb Plyler, McMillan, Kinzey & Smith, Raleigh, NC, for appellee. ON BRIEF: James R. Dedrick, U.S. Atty., Raleigh, NC, for appellant.

Before RUSSELL, Circuit Judge, BUTZNER, Senior Circuit Judge, and DOUMAR, United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed in part, vacated in part, and remanded by published opinion. Judge RUSSELL wrote the opinion, in which Senior Judge BUTZNER and Judge DOUMAR joined.

OPINION

DONALD RUSSELL, Circuit Judge:

The government appeals the district court's sentencing of Defendant Brian Scott Maddox for charges arising from his armed robbery of a bank. Specifically, the government challenges the district court's downward departure from both a statutory mandatory minimum sentence and the Sentencing Guidelines range based upon the grounds of: (1) substantial assistance under 18 U.S.C. Sec. 3553(e) and U.S.S.G. Sec. 5K1.1; (2) extraordinary vulnerability to victimization in prison; and (3) extraordinary family ties under U.S.S.G. Sec. 5H1.6. We reverse in part, vacate in part, and remand.

I.

On January 25, 1991, Defendant Maddox and Larry Randall Bullock robbed a small branch of the United Carolina Bank in Raleigh, North Carolina. Bullock brandished a pistol while Maddox shouted at bank tellers to give him money from the teller drawers. They escaped by car to Franklinton, North Carolina, where they divided the $3,544.00 they had stolen.

On July 23, 1991, a prisoner in the Vance County Jail told Detective William Gardner of the Raleigh Police Department that Maddox and Bullock had robbed the bank. On July 25, 1991, Detective Gardner provided this information to FBI Special Agent Gregory Baker, who spoke with relatives of Bullock. Bullock's brother Barney identified Maddox and Bullock in the bank's surveillance photographs. Barney also informed Agent Baker that Maddox had admitted robbing the bank about two weeks after the robbery.

Upon learning that the FBI was looking for him, Maddox turned himself in to the Vance County Sheriff's Department on July 25, 1991. He confessed to the robbery, identified himself and Bullock in the surveillance photographs, and informed the FBI that Barney had "cased out" the bank and shared in the loot. Maddox also helped FBI agents search for Bullock, who had heard of his pending arrest and reportedly was hiding in the woods. Agent Baker apprehended Bullock the next day and obtained his confession.

On August 13, 1991, Maddox and Bullock were both indicted for conspiracy to commit armed bank robbery (Count One), armed bank robbery (Count Two), and use of a firearm during a crime of violence (Count Three). During pretrial negotiations, the United States Attorney for the Eastern District of North Carolina made the same plea offer to each defendant: the government would consider moving for downward departure on the basis of substantial assistance if the defendant would plead guilty to Counts Two and Three, and testify against the other defendant. ¹ Thus, the government did not care which, if either, defendant received the downward departure motion; but the government would only consider making the motion if one defendant pleaded guilty and actually testified against the other who pleaded not guilty. If both had pleaded guilty, then neither would have qualified for the downward departure motion because no testimony would have been needed. ²

As of late September 1991, neither defendant had accepted the government's offer, but both had expressed interest in testifying against the other. Maddox never accepted the government's offer. On October 1, 1991 Bullock accepted the offer by signing a plea agreement. Pursuant to the agreement, he pleaded guilty to Counts Two and Three on October 7, 1991, and the government dismissed Count One. Later that day, Maddox pleaded guilty to Counts One and Two. The next day, he went to trial on Count Three, the firearm charge. With the help of Bullock's testimony, ³ the jury convicted Maddox.

At Maddox's first sentencing hearing on February 3, 1992, the district court adopted the factual findings and Sentencing Guidelines applications in the presentence report. The court found that Maddox's total offense level was 18 and his criminal history was Category I. The court also found that Counts One and Two imposed an imprisonment range of 27 to 33 months and that Count Three required a mandatory five-year term of imprisonment to run consecutively with the term imposed on the other counts. Maddox raised questions concerning the extent of his assistance to the government and the allegedly improper rationale behind the government's decision to refuse to file a downward departure motion for him. The court ordered another hearing to explore these issues further.

When the court invited Maddox to speak in his own behalf, he began crying after only a few words. The court instructed counsel for Maddox and the government to submit briefs concerning the possibility of a downward departure based upon Maddox's mental condition. At a second sentencing hearing on March 2, 1992, the court ordered that Maddox undergo a psychological study to determine whether he was suffering from a mental disease or defect, and whether his condition would have made him more susceptible to coercion or duress by another person during the robbery. Maddox was examined by two clinical psychologists, Dr. C. Keith Conners and Dr. George Fowles. On September 24, 1992, at the third sentencing hearing, the court determined that, on the basis of the testimony of the psychologists, Maddox was not entitled to a departure because of coercion or diminished capacity.

On November 5, 1992, the court conducted a fourth sentencing hearing to determine whether Maddox was entitled to a downward departure for providing substantial assistance. On April 13, 1993, the court issued an order finding that Maddox had rendered substantial assistance and that the government had violated his constitutional rights by failing to move for downward departure. The court, sua sponte, also directed the parties to brief the question of whether Maddox should receive a downward departure as "an especially vulnerable person as discussed in United States v. Lara, 905 F.2d 599, 603 (2d Cir.1990), and other recent cases." JA at 391.

On July 6, 1993, the district court conducted a fifth sentencing hearing. Two experts, Dr. Sally Johnson and Dr. Fowles, testified that Maddox was not extraordinarily vulnerable, relative to the general federal prison population, to violence or physical abuse. Dr. Johnson, the associate warden for health services at the federal prison in Butner, North Carolina, concluded that Maddox's borderline intelligence and dependent personality disorder are not unusual in the federal prison population, which has many people like Maddox in it. Dr. Fowles confirmed Dr. Johnson's findings and added that Maddox did not appear to be especially frail or effeminate. ⁴

The only contrary evidence offered by Maddox was a one-page letter from Dr. Conners stating that "[i]ndividuals like Brian are particularly vulnerable to aggression and mistreatment from others." JA at 399. The government objected to this letter because Dr. Conners had shown no prior experience in dealing with prisoners and had not previously testified concerning the mental state of a criminal defendant. In fact, there was no evidence that Dr. Conners had ever been inside a federal prison.

In an order issued on July 22, 1993, the district court found that Maddox was entitled to departure based on his substantial assistance, as determined earlier, and on the additional ground of extraordinary vulnerability. Furthermore, without advance notice to the government, the court found sua sponte that Maddox also was entitled to a downward departure because of his extraordinary family ties. The court noted that one of Maddox's sisters is mentally retarded and suffers from a seizure disorder. The court found that the sister related well to Maddox, who "is of invaluable assistance in helping to care for her." JA at 397. The court also found that Maddox provides relief to his mother and is "crucial to the stability of his family." JA at 397.

The district court sentenced Maddox to five years probation, notwithstanding the five-year mandatory minimum sentence required by his conviction for using a firearm during a crime of violence under 18 U.S.C. Sec. 924(c). ⁵

II.

The government challenges the district court's granting of Maddox's motion for downward departure based on substantial assistance despite the government's refusal to move for downward departure under either 18 U.S.C. Sec. 3553(e) or U.S.S.G. Sec. 5K1.1. This Court has held that absent a motion by the government, district courts cannot consider whether a defendant is entitled to a downward departure from the Sentencing Guidelines range based on substantial assistance. United States v. Francois, 889 F.2d 1341, 1344-45 (4th Cir.1989), cert. denied, 494 U.S. 1085, 110 S.Ct. 1822, 108 L.Ed.2d 951 (1990). In Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), the Supreme Court carved out two exceptions to the virtually unreviewable decisionmaking power of prosecutors regarding such motions. A district court may review the government's refusal to file a substantial assistance motion, and grant a remedy, if the court finds that the refusal: (1) is based on an unconstitutional motive; or (2) is not rationally related to a legitimate government objective. Id. at 184-87, 112 S.Ct. at 1843-44. ⁶

The district court found as a matter of law that the government's refusal to move for downward departure...