U.S. v. Smith

• Decision Date: 14 January 1992
• Docket Number: No. 90-3606,90-3606
• Citation: 953 F.2d 1060
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey C. SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1060

953 F.2d 1060

60 USLW 2527

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey C. SMITH, Defendant-Appellant.

No. 90-3606.

United States Court of Appeals Seventh Circuit.

Argued July 10, 1991.

Decided Jan. 14, 1992. ^*

Christina McKee, argued, Larry A. Mackey, Asst. U.S. Attys., Indianapolis, Ind., for plaintiff-appellee.

Kevin P. McGoff, argued, J. Richard Kiefer, Safrin, Kiefer & McGoff, Indianapolis, Ind., for Jeffrey C. Smith.

Before CUDAHY and EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Section 5K1.1 of the sentencing guidelines provides: "Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines." Defendants often estimate the value of their assistance, and the risks they have taken to provide it, more highly than does the prosecutor. Regularly they ask the court to reward their aid with a lower sentence notwithstanding the absence of a motion under § 5K1.1. Jeffrey C. Smith made such a request in this case, to which the district judge replied that "there is no motion from the government, and that's a threshold hurdle." We must decide whether this assessment is correct.

Smith stands convicted under 26 U.S.C. §§ 5841 and 5861(d) of possessing an M-16 automatic rifle, a military weapon stolen from a military depot. After an altercation at a bar, the owner ejected Smith and accompanied him to his truck. Smith snatched a Colt .45 gun from the glove compartment; the owner wrestled the gun away from Smith. The owner told Smith that he would turn the gun over to the police (and did, promptly); Smith's girlfriend rejoined that "we will be back to kill you". On reaching home Smith took a loaded Sig Sauer P226 pistol and holster from his safe. He put on the holster and strapped extra clips of ammunition to the belt. A former gun dealer, Smith fitted the M-16 rifle with the shorter barrel of an AR-15 (so that it would look more intimidating, Smith testified). He stuffed an extra magazine of ammunition for the M-16 into his back pocket. Thus armed like some character from a Mad Max film, he set off for the bar in a car, his girlfriend following in the truck. A patron saw Smith approach, and the owner was waiting at the door; Smith barged in, pointed the M-16 at the owner, and threatened his life before being tackled; Smith fired two shots (hitting only the glass door) as the owner and patron wrested the guns from him. Smith pleaded guilty to possessing the stolen M-16, which he insisted that he would have used only to "persuade" the owner of the bar to return his Colt .45. Our only issues concern the appropriate sentence.

The district judge started with U.S.S.G. § 2K2.1, which addresses weapons offenses, but turned to § 2A2.2, which covers assaults, on the authority of § 2K2.1(c)(2) and § 2X1.1. Section 2K2.1(c)(2) sends the court to § 2X1.1 when "the defendant used or possessed the firearm in connection with commission or attempted commission of another offense", and the "resulting offense level is greater than that determined above." Section 2X1.1 tells the judge to get adjustments to the base score from the table for the real offense. Section 2A2.2 provides a base offense level of 15, with enhancements of 5 for discharging a firearm and 2 for "more than minimal planning". The district court applied both, for a total offense level of 22. The court deducted 2 levels for acceptance of responsibility. Because Smith had no criminal history, the guidelines prescribed a range of 33-41 months. Smith asked the judge to depart downward on the basis of his assistance to the prosecution in trying to track down the thief; the judge refused and sentenced Smith to 36 months' imprisonment holding that he lacked authority in the absence of a motion.

We have rejected arguments that § 5K1.1 violates the Constitution by reposing too much power in the Executive Branch. E.g., United States v. Lewis, 896 F.2d 246 (7th Cir.1990); United States v. Valencia, 913 F.2d 378, 386 (7th Cir.1990); United States v. Bayles, 923 F.2d 70 (7th Cir.1991). Smith asks us to hold nonetheless that an arbitrary refusal to make a motion does not block a district judge from departing from the guidelines. Several of our opinions reserve decision on this question. E.g., Lewis, 896 F.2d at 249 n. 1.

Arbitrariness--that is, unjustified disparities in the treatment of similarly situated persons--is not among the grounds on which to contest an exercise of prosecutorial discretion. Unless the prosecutor acts on forbidden grounds such as race or speech, the court must respect the executive's selection from the menu of crimes with which the defendant could have been charged. Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979).

Our cases have sidestepped the question whether the prosecutor's decision not to make a § 5K1.1 motion should be treated in the same way as the selection of the charge or (what is perhaps the closest analogy) refusal to make a plea bargain. Now is the time for decision, for the district judge, having told Smith that the lack of a motion from the prosecutor was a stopper, also discouraged him from introducing evidence pertinent to the extent and success of his assistance. We know that Smith set up meetings with the person who gave him the M-16, and that at least one of these meetings put Smith in danger (the supplier correctly suspected that Smith was wired). We also know that the investigation came to naught--Smith blames the investigators, and they blame him. Few details are in the record, and nothing allows us to compare Smith's assistance with the aid that the United States Attorney for the Southern District of Indiana has deemed sufficient to justify a motion in other cases. We confront a legal issue, just as the district judge made a strictly legal decision. ¹

Smith first raises a possibility broached in Bayles: that § 5K1.1 does not exhaust the grounds of departure on account of cooperation. Courts may depart if the Sentencing Commission did not adequately consider a circumstance, 18 U.S.C. § 3553(b), and it may be that by writing a policy statement rather than a guideline the Commission has signalled that it does not think its treatment definitive. Whether § 5K1.1 leaves such "flexibility" has divided the courts of appeals. Compare United States v. White, 869 F.2d 822, 828-29 (5th Cir.1989) (yes), with United States v. Garcia, 926 F.2d 125 (2d Cir.1991) (departure without motion possible for assistance to the judiciary although not for assistance to the prosecutor), with United States v. Romolo, 937 F.2d 20, 24-25 (1st Cir.1991), United States v. Bruno, 897 F.2d 691, 695 (3d Cir.1990), United States v. Goroza, 941 F.2d 905, 908 (9th Cir.1991), and United States v. Chotas, 913 F.2d 897, 900 (11th Cir.1990) (no).

Although the use of a policy statement may imply tentative rather than definitive resolution of a question, we believe that the Sentencing Commission adequately considered whether a prosecutorial motion is necessary. Section 5K1.1 is written without leeway; its next door neighbor, § 5K2.0, identifies "some of the factors that the Commission has not been able to take into account fully in formulating the guidelines." There follows a list, §§ 5K2.1-2.15, of items that have not been fully considered, with invitations to courts to depart under circumstances limned but not delimited. Nothing comparable suggests that the terms of departure for assistance to the prosecution have been less than exhaustively canvassed. Congress itself made departure from a statutory minimum penalty contingent on motion of the prosecutor, 18 U.S.C. § 3553(e), and likewise conditioned a reduction after pronouncement of sentence on a motion. Fed.R.Crim.P. 35(b). The Sentencing Commission followed the statutory model. Section 3553(b) requires a judge to stick to the guidelines once the Commission has covered a subject.

That sets up Smith's contention that § 5K1.1 itself allows a court to depart when the failure of the prosecutor to make a motion is arbitrary or in bad faith--and is unconstitutional if it does not allow this flexibility. Finding the power in § 5K1.1 is problematic. Section 5K1.1 does not say that the court may reduce a sentence when it thinks the prosecutor should have filed a motion. The Sentencing Commission provides the prosecutor a way to facilitate lenity in exchange for assistance. The guideline does not suggest any standards limiting the exercise of the prosecutor's discretion--s 5K1.1 does not speak to the reasons that inform the prosecutor's decision, and therefore does not authorize review of that decision. There is, in the standard phrase, "no law to apply", and correspondingly no review.

Section 5K1.1 tracks three statutes: 18 U.S.C. § 3553(c), 28 U.S.C. § 994(n), and Fed.R.Crim.P. 35(b). The statutes allow a court to give a sentence below a statutory minimum, or to reduce a sentence after its imposition, on motion of the prosecutor. Guidelines that follow a statutory model take the same meaning as the statute. Consider Chapman v. United States, --- U.S. ----, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). A statute made the sentencing range depend on the weight of a "mixture or substance" containing a drug; the guideline used the same formula to govern the exercise of discretion within the statutory range. The Supreme Court interpreted the statute and, without further analysis, imputed the same meaning to the guideline. Our principal question, then, is whether a court may give a sentence less than a statutory minimum, or reduce a sentence after its imposition, without a prosecutorial motion. The answer in each case is no. United States v. Wilson, 922 F.2d 1336, 1342 (7th Cir.1991) (§ 3553(c)); ...