U.S. v. Rodriguez, 94-2080

• Decision Date: 04 January 1996
• Docket Number: No. 94-2080,94-2080
• Citation: 73 F.3d 161
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rene RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 161

73 F.3d 161

UNITED STATES of America, Plaintiff-Appellee, v. Rene RODRIGUEZ, Defendant-Appellant.

No. 94-2080.

United States Court of Appeals, Seventh Circuit.

Jan. 4, 1996.

Stephen J. Liccione, Submitted on briefs, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Hugh Davis, Kevin Ernst, Detroit, MI, for Defendant-Appellant.

Prior report: 67 F.3d 1312 (1995).

Before BAUER and MANION, Circuit Judges, and MILLER, District Judge. ^*

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

The court has considered the petition for rehearing and suggestion for rehearing en banc, and answer thereto, filed in this case. All of the judges on the original panel voted to deny rehearing, and the petition is accordingly denied.

A judge in active service called for a vote on the suggestion of rehearing en banc, which failed to obtain a majority. Judges Posner, Flaum, Ripple, Rovner, and D. Wood voted for rehearing en banc.

POSNER, Chief Judge, with whom DIANE P. WOOD, Circuit Judge, joins, dissenting from the denial of rehearing en banc.

The defendant was sentenced to life in prison without possibility of parole. He had been charged with conspiracy to sell marijuana, and the judge instructed the jury that all it had to find in order to convict was that the defendant had conspired to sell a "measurable" amount of marijuana. The prosecutor invited the jury to convict on the basis of evidence that the defendant had delivered ten ounces. At the sentencing hearing following the defendant's conviction, the judge found by a preponderance of the evidence that the defendant had actually sold more than 1,000 kilograms of marijuana, and this amount, together with the defendant's criminal history, triggered a mandatory sentence of life imprisonment. 21 U.S.C. Sec. 841(b). Although there is no doubt that the evidence satisfied the preponderance standard, the government does not claim to have established the defendant's responsibility for the sale of 1,000 kilograms by clear and convincing evidence or beyond a reasonable doubt. The jurors were actually rather troubled by the issue of guilt--enough so that the judge had to give an Allen-type charge to blast a verdict out of them.

The question on which rehearing en banc is sought is whether a heightened standard of proof, either clear and convincing evidence or proof beyond a reasonable doubt, is required in a case in which the real trial occurs at the sentencing hearing rather than at the trial of guilt. It is a difficult and important question, worth the attention of the full court, especially since it received only brief attention in the panel's opinion. That opinion does not cite a key precedent, our decision in United States v. Masters, 978 F.2d 281 (7th Cir.1992).

The extraordinary severity of the punishments prescribed by Congress for sellers of marijuana, and Congress's increasing tendency to specify mandatory minimum prison terms, thereby curtailing the sentencing discretion of judges and the Sentencing Commission, are controversial. But I accept absolutely the power of Congress to adopt these policies and I have no desire to attempt an end run around them. Yet even if their legitimacy, if not necessarily their wisdom, is wholeheartedly accepted, as I think it my duty as a judge to do, there is a serious question whether it is permissible to sentence a person to life in prison, without possibility of parole, at the end of a brief and casual sentencing hearing in which there is no jury, in which the rules of evidence are not enforced, in which the standard of proof is no higher than in an ordinary civil case, and in which the judge's decision will make the difference between a light punishment and a punishment that is the maximum that our system allows short of death. Had the defendant been sentenced on the basis of a sale of 10 ounces of marijuana, his sentence might have been as short as 18 months. The difference between 18 months and life is, obviously, enormous. Given the defendant's criminal history, his sentence would have been longer than 18 months, perhaps twice or even three times longer, but, for a man of Rodriguez's age (49), still far short of life in prison.

The general formula for deciding what procedural safeguards due process requires was set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). It requires weighing the magnitude and likelihood of error if the safeguard is not adopted against the cost of the safeguard. Given that evidence presented at a sentencing hearing is often unreliable, both because the rules of evidence are not enforced in such hearings and because evidence of quantity of drugs sold is ordinarily given by criminals, the defendants' former associates, the risk of error cannot be reckoned trivial; and the magnitude of the potential error is enormous in a case in which quantity will determine whether the defendant gets a light sentence (even four and a half...