U.S. v. Mondello, 90-50121

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 927 F.2d 1463
• Docket Number: No. 90-50121,90-50121
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward X. MONDELLO, Defendant-Appellant.
• Decision Date: 07 March 1991

Page 1463

927 F.2d 1463 UNITED STATES of America, Plaintiff-Appellee,
v.
Edward X. MONDELLO, Defendant-Appellant. No. 90-50121. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Oct. 4, 1990.
Decided March 7, 1991.

Page 1464

Carolyn Chapman, San Diego, Cal., Robert M. Leen, Seattle, Wash., for defendant-appellant.

John R. Kraemer, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before BEEZER and TROTT, Circuit Judges, and CROCKER, District Judge. ^*

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TROTT, Circuit Judge:

Edward X. Mondello appeals his sentence imposed under the United States Sentencing Guidelines (U.S.S.G.), and the denial of his motion to suppress evidence. He claims (1) the district court applied the Guidelines incorrectly, (2) the Guidelines are contrary to the Sentencing Reform Act of 1984 (codified as amended), 18 U.S.C. Sec. 3551 et seq. (1988), and 28 U.S.C. Sec. 991 et seq. (1988), (3) the Guidelines are unconstitutional in several respects, and (4) the warrant authorizing the search of his luggage was issued on the basis of information obtained during his illegal detention, requiring suppression of the evidence found inside. We affirm.

I

Based on evidence from an informant, customs agents believed Mondello was transporting drugs between San Diego, Ft. Lauderdale, and Boston. Mondello was about to fly out of San Diego one night when an agent rapped on the window of his privately chartered plane and asked to board it for inspection. The door was opened, and the agent entered. He asked Mondello if he could search his bags, but Mondello told him to get a warrant first. The agent replied he would try to obtain a warrant, but told Mondello to wait for a moment while he took the bags off the plane to have a trained dog sniff them for contraband. The sniff test was positive and was completed within thirty minutes of the beginning of Mondello's detention. Mondello was then held for an additional ninety minutes before he was released. His bags remained with the agents, who eventually obtained a warrant to open them. The bags contained 210 pounds of marijuana.

The authorities began searching for Mondello within a few days of his arrest. They contacted Mondello's attorney, who tried to arrange his surrender, but Mondello proved uncooperative. For approximately two weeks his whereabouts could not be determined. When federal officers finally located him on a freeway, he fled from his car and was captured after a forty minute chase.

The district court denied Mondello's motion to suppress the evidence taken from his luggage. Mondello then pleaded guilty to possession of marijuana with intent to distribute. 21 U.S.C. Sec. 841(a)(1) (1988). The district court enhanced Mondello's sentence by two levels based on his flight, on the ground he had "willfully ... attempted to obstruct or impede, the administration of justice...." U.S.S.G. Sec. 3C1.1. Mondello timely appeals.

II

Two Point Enhancement for "Obstructing Justice"

Mondello argues the flight from his car does not qualify as an "obstruction of justice" under U.S.S.G. Sec. 3C1.1. Generally, "[a] district court's determination of whether a defendant obstructed justice is reviewed as a factual finding under the clearly erroneous standard...." United States v. Lofton, 905 F.2d 1315, 1316 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 365, 112 L.Ed.2d 328 (1990) (citation omitted). As the Second Circuit has observed, however, the question whether flight constitutes obstruction of justice "turns primarily on the legal interpretation of a guideline term" and properly is reviewed de novo. United States v. Stroud, 893 F.2d 504, 507 (2d Cir.1990).

Section 3C1.1 provides: ¹

If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.

Id. Mondello emphasizes the "willfulness" element of the test, characterizing his conduct as a panicked flight from pursuing officers that did not amount to a "willful"

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attempt to obstruct the administration of justice.

In Stroud, police officers surprised the defendant in the act of committing a bank robbery and chased him for several blocks before catching him. The district court increased his sentence by two levels based on the flight, relying on section 3C1.1. The Second Circuit reversed:

[W]e are convinced that the word "willfully," as used in section 3C1.1, requires that the defendant consciously act with the purpose of obstructing justice. We therefore hold that mere flight in the immediate aftermath of a crime, without more, is insufficient to justify a section 3C1.1 obstruction of justice enhancement.

Stroud, 893 F.2d at 507 (emphasis in original) (footnote omitted). The court was careful to limit its holding to cases where flight occurs "in the immediate aftermath of a crime," as a spontaneous reaction:

Here, the purpose of [defendant's] flight was not a deliberate pre- or post-arrest attempt to frustrate or impede an ongoing criminal investigation, as in the case of an individual who flees while being sought for questioning some time after the commission of a crime. Nor is this a case where instinctual flight, due to its duration or acts occurring in the course thereof, ripens into a willful attempt to impede or obstruct the administration of justice. [citation omitted] Rather, Stroud's flight appears to have been a natural attempt to avoid apprehension, not a willful attempt to impede or obstruct justice within the purview of section 3C1.1.

Id. at 508 (emphasis supplied) (footnote omitted).

This circuit has embraced the Stroud court's view of the "willfulness" requirement in section 3C1.1, ² as well as its more specific holding on the issue of flight:

The commentary to [section 3C1.1] states that it provides an enhancement for a defendant "who engages in conduct calculated to mislead or deceive authorities or those in a judicial proceeding, or otherwise to willfully interfere with the disposition of criminal charges." It is clear from this commentary that what is intended is something different from the instinctive flight of a suspect who suddenly finds himself in the power of the police. "Mere flight in the immediate aftermath of the crime " does not justify the enhancement. United States v. Stroud, 893 F.2d 504, 507 (2d Cir.1990).

United States v. Garcia, 909 F.2d 389, 392 (9th Cir.1990) (emphasis supplied). The Garcia court did not expand on the "immediate aftermath of the crime" distinction drawn in Stroud, but it did quote the critical phrase from that case, implying such a distinction was sound. ³

Mondello's flight did not occur in the immediate aftermath of his crime. The crime had taken place three weeks before. Mondello had already been arrested for the offense and told he was a suspect in a criminal case. This is far from the situation where, for example, a criminal is surprised in the act of committing a crime and

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makes an evasive dodge to avoid apprehension. For two weeks prior to his final arrest Mondello played a cat-and-mouse game of avoiding the authorities, though he knew he was expected to surrender himself voluntarily. Moreover, upon fleeing his car, Mondello forced the arresting officers to chase him for over forty minutes before they captured him. Based on these circumstances, we hold Mondello obstructed the administration of justice within the meaning of section 3C1.1. ⁴ III

Constitutional Challenges to the Sentencing Guidelines

We review de novo the question whether the Sentencing Guidelines violate the Constitution. United States v. Brady, 895 F.2d 538, 539 (9th Cir.1990).

A. The Guidelines' Limitation on Judicial Discretion

Mondello claims the Sentencing Guidelines offend due process because they restrict the district court's sentencing discretion, ignore mitigating factors relating to the defendant's character and background, and generally encourage less individualized sentencing. The Ninth Circuit has rejected these precise claims as well as closely related due process theories. United States v. Chalker, 915 F.2d 1254, 1258-59 (9th Cir.1990); United States v. Wilkins, 911 F.2d 337, 339 (9th Cir.1990); United States v. Litteral, 910 F.2d 547, 551 (9th Cir.1990); United States v. Sanchez, 908 F.2d 1443, 1446 (9th Cir.1990); United States v. Jones, 907 F.2d 929, 930 (9th Cir.1990); United States v. Foreman, 905 F.2d 1335, 1336 n. 1 (9th Cir.1990); Brady, 895 F.2d at 540-44; United States v. Belgard, 894 F.2d 1092, 1100 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 164, 112 L.Ed.2d 129 (1990).

B. The Prosecutor's Acquisition of Sentencing Powers

Mondello's next theory is that the Guidelines violate due process and separation of powers because the prosecutor effectively can set a defendant's sentence by determining what crime to charge at the outset. The due process aspect of this argument was rejected in Sanchez, 908 F.2d at 1445-46. The separation of powers claim is meritless as well for the reasons stated in United States v. Thomas, 884 F.2d 540, 544 (11th Cir.1989) and United States v. Saldivar, 730 F.Supp. 329, 330-31 (D.Nev.1990). Cf. United States v. Ayarza, 874 F.2d 647, 652-53 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 847, 107 L.Ed.2d 841 (1990); United States v. Huerta, 878 F.2d 89, 91-93 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 845, 107 L.Ed.2d 839 (1990); United States v. Grant, 886 F.2d 1513, 1513-14 (8th Cir.1989). Prosecutors have long had the ability to influence a defendant's sentence by deciding what crime to charge. The Sentencing Guidelines do not appreciably augment this historic power.

C. The Right Against Self-Incrimination

Mondello contends the "acceptance of responsibility" provision in section 3E1.1 of the Guidelines violated his Fifth...