U.S. v. Poland, Criminal No. 05-69-P-H.

• Decision Date: 04 February 2008
• Docket Number: Criminal No. 05-69-P-H.
• Parties: UNITED STATES of America v. Jonathan POLAND, Defendant.
• Court: U.S. District Court — District of Maine

533 F.Supp.2d 199

UNITED STATES of America v. Jonathan POLAND, Defendant.

Criminal No. 05-69-P-H.

United States District Court, D. Maine.

February 4, 2008.

Darcie N. McElwee, Assistant United States Attorney, Portland, ME, for United States of America.

Joseph H. Groff, III, Jensen, Baird, Gardner & Henry, Portland, ME, for Jonathan Poland.

AMENDED DECISION AND ORDER ON GOVERNMENT'S MOTION FOR SENTENCE REDUCTION¹

D. BROCK HORNBY, District Judge.

Pre-Booker cases consistently held that in granting a prosecutor's motion to reduce a prison sentence on account of the offender's substantial assistance to the government after sentencing, the federal sentencing judge could not enlarge the reduction for factors unrelated to the assistance. All, those cases, however, applied a Federal Rule of Criminal Procedure — Rule 35(b) — that explicitly required the reduction to "reflect" the substantial assistance or to be in "accord" with Sentencing Commission Guidelines and policy statements. As of December 1, 2007, all that language has disappeared from the Rule. Now it reads simply that a "court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person" (emphasis added). The Advisory Committee Note says that the Rule was changed in, an effort to "conform H" the Rule to the Supreme Court's decision in Booker; it reports that the drafters removed the previous language "because it treats the guidelines as mandatory[;]" and it quotes a portion of Booker that said that other factors contained in 18 U.S.C. 3553(a) (factors that do not relate to substantial assistance) could affect the sentence as well. I am unaware of any cases measuring the effect of the new language and Note. I write this opinion to explain why I conclude that on a Rule 35(b) motion, a district judge still cannot enlarge the sentence reduction for factors unrelated to substantial assistance. A different conclusion would place the new Rule beyond the authority conferred upon the rule-making process under the Rules Enabling Act.²

I. FACTS AND PROCEDURAL HISTORY³

Less than four months different in age, the teenaged defendant and his cousin (their fathers are brothers) were good friends who spent time together. On March 19, 2004, when the defendant was three months over age eighteen and his cousin was twenty-two days under, they constructed two homemade pipe bombs. Having together stolen pipe nipples with end caps from a Home Depot, having together bought black powder from a gun shop, and the cousin having bought timed hobby fuse over the internet, they built the bombs, exploded the first in an open field, and then after 10 p.m., exploded the second in a soda machine outside a truck stop after it closed. The cousin placed the second bomb and lit the fuse. Fortunately, no one was injured, but the soda machine was destroyed. Suspicion settled on the defendant because he had tried to buy a large quantity of ammonium nitrate at a Farmers Union store. As a result of a consensual search and a confession, authorities had enough evidence to prosecute him federally on the charges of possession of an unregistered destructive device, 26 U.S.C. § 5861(d), and malicious damage or destruction of property by means of an explosive, 18 U.S.C. § 844(i). The defendant was arrested and bailed in April 2004, but not indicted until August 2005. Then he refused to cooperate and lied at a suppression hearing (as did his parents) to try to establish (unsuccessfully) that he did not confess voluntarily. A jury convicted him. The mandatory minimum sentence was five years. On December 15, 2006, I sentenced him at the bottom of the Guidelines range, sixty-three months. In considering the § 3553(a) factors, I concluded that the extra three months were necessary to reflect an appropriate small additional penalty for obstructing justice by lying. I remanded him immediately to custody.

Federal authorities did not have enough evidence to convict the cousin without the defendant's testimony. Once the defendant had been convicted, the government filed a juvenile information against the cousin (although he was by then just days shy of his twenty-first birthday, at which time he could have been prosecuted as an adult⁴), and obtained a court order compelling the defendant to testify against him. With a new lawyer, the defendant decided to cooperate. He agreed to withdraw his appeal of his conviction, his sentence, and the denial of his suppression motion; and he made a proffer. Because of the defendant's proffer, his cousin consented to disposition as a juvenile delinquent (the equivalent of a guilty plea), resulting in a serious rift in the extended family of the two young men. A different judge for a variety of reasons (including the limitations imposed by juvenile proceedings) sentenced the cousin to a drastically shorter period of confinement.

Now the government has moved under Rule 35(b) to reduce the defendant's sentence below both the statutory minimum and the Guidelines range. Initially, the government said in a written submission that I should reduce his sentence to forty-eight months considering his substantial assistance alone. The government explained that even with the twenty-five percent reduction it recommended, the defendant's sentence of forty-eight months would still be sixteen times longer than the sentence his cousin received. Then at the hearing, the prosecutor agreed that under the new Rule language, it would be appropriate to consider other factors, particularly sentencing disparity. The defendant requested that I consider all the § 3553(a) factors and grant him a substantially lower (but unspecified) sentence. In a written memorandum filed after the hearing, the government's position has become more opaque.⁵

II. ANALYSIS

I start with some history.

A. Rule 35(b) Pre-Booker

Before the Sentencing Reform Act of 1984 created the Sentencing Commission and directed the writing of the Guidelines, Rule 35 gave district judges wide discretion to reduce a previously imposed sentence, provided that they acted within certain time limits.⁶ According to the First Circuit, a Rule 35 motion was a "plea for leniency" and was "committed to the informed discretion of the trial court." United States v. Distasio, 820 F.2d 20, 24 (1st Cir.1987).

(1) Rule 35 as Amended by the Sentencing Reform Act of 1984

But with the Sentencing Reform Act and its new and strict limitations on federal judges' discretion in imposing sentences, Congress also introduced new limits on federal judges' authority to reduce a sentence previously imposed. Under subchapter D, captioned "Imprisonment", Congress adopted what is now 18 U.S.C. § 3582, a section that distinguishes between imposing a term of imprisonment (subsection (a)), and modifying a term of imprisonment previously imposed (subsection (c)).

In subsection (c), Congress recognized three basic categories of modification (reduction) for sentences previously imposed.⁷ One category is reduction on motion by the Bureau of Prisons, seeking a prisoner's early release, generally on account of age and/or severe illness. 18 U.S.C. 3582(c)(1)(A). Another category is reduction because later Guidelines amendments have reduced the applicable sentencing range for an already sentenced offender. 18 U.S.C. § 3582(c)(2). For both these categories, Congress specified that the reductions must be "consistent with applicable policy statements issued by the Sentencing Commission." § 3582(c)(1)(A), (c)(2). Third, as relevant to this case:

The court may not modify a term of imprisonment once it has been imposed except that —

(1) in any case —

(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute⁸ or by Rule 35 of the Federal Rules of Criminal Procedure....

Sentencing Reform Act of 1984, Pub.L. No. 98-473, Title II, § 212(a)(2), 98 Stat. 1837 (1984), codified at 18 U.S.C. § 3582(c). When it enacted this provision, Congress simultaneously rewrote Rule 35 of the Federal Rules of Criminal Procedure to contain an express provision concerning the extent of the permitted modification and the Sentencing Commission's role. Rule 35(b) as rewritten by Congress took effect in 1987. It provided:

The court, on motion of the Government, may within one year after the imposition of a sentence, lower a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense, in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code. The court's authority to lower a sentence under this subdivision includes the authority to lower such sentence to a level below that established by statute as a minimum sentence.

Sentencing Reform Act of 1984, Title II, § 212(b), as amended by Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, Title X, § 1009, 100 Stat. 3207 (1986).⁹

The language of § 3582(c), along with congressionally-written Rule 35(b), shows that Congress expected the Commission to write a Guideline or policy statement, for all three post-sentence reduction categories. In fact, Congress specifically directed the Commission to promulgate general policy statements for "the sentence modification provisions set forth in section [] ... 3582(c) of title 18." 28 U.S.C. § 994(a)(2)(C). Nowhere is there a suggestion that these "sentence modification provisions" are the same as initial sentence imposition and that Congress contemplated an entirely new resentencing with full reconsideration of everything involved.¹⁰

(2) Implementation of Rule 35(b) as amended by the Sentencing Reform Act

In response to the statute, the Commission has written a policy statement for Bureau of Prisons motions, USSG § 1B1.13; it has written a policy statement for Guidelines amendments that reduce the sentencing...