U.S. v. West

• Citation: 552 F.Supp.2d 74
• Decision Date: 07 May 2008
• Docket Number: Criminal Action No. 06-10281-WGY.
• Parties: UNITED STATES of America, v. Matthew D. WEST, Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 74

552 F.Supp.2d 74

UNITED STATES of America, v. Matthew D. WEST, Defendant.

Criminal Action No. 06-10281-WGY.

United States District Court, D. Massachusetts.

May 7, 2008.

John T. McNeil, United States Attorney's Office, Boston, MA, for United States of America.

SENTENCING MEMORANDUM¹

YOUNG, District Judge.

I. INTRODUCTION

Given the multi-page judgment and statement of reasons form, AO 245B Judgment in a Criminal Case (05-MA)(Rev.06/05), the written explanations required therein, augmented by the transcript of the detailed explanation rendered in open court of each criminal sentence imposed, I write sentencing memoranda rarely—usually only when remarkable facts or an especially knotty legal question requires such disciplined analysis.

This is not such a case.

Here, the derivation of the particular sentence imposed is fairly straight forward. Nevertheless, as the consequences of disparagement and delay evident in this case so well demonstrate two particularly unfortunate and persistent artifacts of that now thoroughly discredited oxymoron— mandatory guidelines—a decent respect for sentencing consistency requires that I frankly admit my own complicity in such unfortunate persistence and explain how my institutional approach to criminal sentencing has evolved.

II. PROLOGUE: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury"—U.S. Const, art. III, § 2, cl. 3.

With this simple language, the United States became the only nation in the history of the world to make constitutional officers of those ordinary citizens called to serve on the nation's juries. To succeed, this stunning experiment in direct democracy called forth the development of a professionalism in our trial judiciary that, over the course of two centuries, evolved into a system of precise, even-handed fact finding which, in turn, undergirds the entire concept of judicial independence and trial judge constitutional interpretation. See ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 337-39 (Schocken 1st ed.1961) (1835); Michelle D. Beardslee & William G. Young, The Eclipse of Fact Finding: It Foreshadows the Twilight of Judicial Independence (forthcoming 2008).

III. THE PAST: The Oxymoron of Mandatory Guidelines

Twenty-one years ago, the Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat. 1837, 1987-2040 (1984) (amended 1990, 1998), took effect—an unconstitutional statute that strikingly marginalized the constitutional fact-finding function of America's juries, pervasively impaired that crown jewel of America's doctrine of separation of powers—independent fact finding by juries within the judicial branch, and severely undermined the very bedrock of our Constitution, judicial independence.

No one realized this at the time, of course. Indeed, during my own confirmation hearing in 1984, I testified honestly to the Senate Judiciary Committee that, overall, I considered sentencing guidelines worthwhile. When they were enacted by bipartisan majorities in the Congress, there was no judicial outcry or institutional resistance. I well recall the teaching of now Justice Stephen Breyer, who was then a judge in the First Circuit and a Sentencing Commissioner, that the guidelines were just that, guidelines, and judges were free to depart based on reasoned, individualized analysis. See United States v. Rivera, 994 F.2d 942, 947-49 (1st Cir.1993) (discussing how guidelines structure sentencing judges' decision-making); Stephen Breyer, The Federal Sentencing Guidelines and Key Compromises on Which They Rest, 17 HOFSTRA L. REV. 1, 5-6, 18 (1988). I remember thinking that he made a lot of sense and, considering that he had served as counsel to the Senate Judiciary Committee during the drafting of the guidelines legislation, he probably had it right.

Unfortunately, realization of the Breyer vision has been a long time coming.

In actuality, save in the Second Circuit which developed a strong departure jurisprudence, the "guidelines" quickly ossified into a relatively strict sentencing code. See Lisa M. Farabee, Disparate Departures Under the Federal Sentencing Guidelines: A Tale of Two Districts, 30 CONN. L.REV. 569, 591-92 (1998) (noting Second Circuit trend); see also United States v. Sklar, 920 F.2d 107, 109, 114-117 (1st Cir.1990) (discussing nature of departure and reason for reversing it); United States v. Studley, 907 F.2d 254, 257-60 (1st Cir.1990) (discussing same); United States v. Williams, 891 F.2d 962, 967 (1st Cir. 1989) (summarizing improper departure). Having become a sentencing code, the "guidelines" worked poorly, focusing judges on apparently arbitrary distinctions that had little to do with genuine culpability. See United States v. Burke, 999 F.2d 596, 599-602 (1st Cir.1993) (discussing what constituted marijuana "plant"); Steven G. Kalar & Jon M. Sands, An Object All Sublime: Let the Punishment Fit the Crime; CHAMPION, Mar. 2008, at 20, 24 (noting 100:1 crack-cocaine disparity). It became apparent that the government's charging decision had more to do with the sentence ultimately imposed than the jury's fact finding. See United States v. Watts, 519 U.S. 148, 149-151, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam) (discussing connection between charges defendants faced and sentences imposed). In fact, so unworkable did a mandatory guidelines system become, that in significant areas along America's borders, it was simply abandoned under' a "fast track" euphemism to permit handling large volumes of cases. United States v. Green, 346 F.Supp.2d 259, 276-77 (D.Mass.2004), vacated in part sub nom. United States v. Yeje-Cabrera, 430 F.3d 1 (1st Cir.2005), and vacated and remanded sub nom. United States v. Pacheco, 434 F.3d 106 (1st Cir.2006). Even more devastating, imposition of mandatory guidelines came to be based on faux facts largely presented by the executive without the constitutional guarantee of confrontation or other evidentiary safeguards. Green, 346 F.Supp.2d at 278-79. Indeed, judges frequently found themselves reduced to little more than automatons, imposing a sentence as to which they had little or no input whatsoever. Id.

This resulted in a rising chorus of criticism, especially among district court judges, who were virtually unanimous in condemning mandatory "guidelines" that had become barriers to justice rather than channels to a fair individualized result. Jose A. Cabranes, Sentencing Guidelines: A Dismal Failure, 2/11/92 N.Y.L.J. 2, 2 (col.3) (1992); Lawrence K. Karlton, Commentary, 4 Fed. Sent'g Rep. 186, 186-87 (1991); William W. Schwarzer, Judicial Discretion in Sentencing, 3 Fed. Sent'g Rep. 339, 341 (1991); Ellsworth A. Van Graafeiland, Some Thoughts on the Sentencing Reform Act of 1984, 31 VILL. L.REV. 1291, 1293-94 (1986); Joseph F. Weis, Jr., The Federal Sentencing Guidelines—It's Time For a Reappraisal, 29 AM.CRIM. L.REV. 823, 823, 825-6 (1992); Morris E. Lasker, U.S. District Judge for the Southern District of New York, Remarks Before Symposium on Sentencing Guidelines (Sept. 9, 1997), available at http://www.november.org/dissenting opinions/Lasker.html/; see generally Gerald W. Heaney, The Reality of Sentencing Guidelines: No End to Disparity, 28 AM. CRIM. L.REV. 161 (1991). Vainly did the courts of appeal exhort that mandatory guidelines were a "clarion call" to which the district judges, like old war horses, owed unstinting obedience; more recently, one grumbled that the district judges were conducting a "guerilla war" against the guidelines. United States v. Jackson, 30 F.3d 199, 204 (1st Cir.1994) (indicating courts are bound to follow clear legislative policy); see Richardson v. United States, 477 F.Supp.2d 392, 404 n. 14 (D.Mass.2007) (noting court of appeals judge's reaction to district court judges' sentencing practices).

Mandatory guidelines gave rise to an explosion of executive power to control the criminal justice system and it was not lost on the Congress that, if federal judges could be weaned away from the independence of jury fact-finding, they could be more easily controlled and made to do Congress' bidding in specific cases. GEORGE FISHER, PLEA BARGAINING'S TRIUMPH 210-15 (2004) (discussing shift of power away from judiciary under guidelines); see Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 YALE L.J. 1681, 1723-24 (1992) (detailing how prosecutors can affect sentences); Orrin G. Hatch, The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 WAKE FOREST L.REV. 185, 191-92 (1993) (commenting on shift of power and Congress's role). The passage of the notorious Feeney Amendment, Pub.L. No. 108-21, Title IV, 117 Stat. 650, 667-676 (2003), with its case specific reporting requirements, made palpable the assault on the judiciary as a separate and independent branch of government. United States v. Kitsch, 287 F.Supp.2d 1005, 1006-07 (D.Minn.2003); see United States v. Grigg, 442 F.3d 560, 565-66 (7th Cir.2006) (summarizing district court's comments about Feeney Amendment during sentencing procedure); United States v. Khan, 325 F.Supp.2d 218, 233 (E.D.N.Y.2004) (discussing criticisms of Feeney Amendment); Douglas A. Kelley, Minnesota Federal Judge Caught in a Constitutional Crossfire, 27 HAMLINE L.REV. 427, 444-45 (2004) (noting Judge Magnuson's discussion of intimidation of the judiciary); David M. Zlotnick, The War Within the War on Crime: The Congressional Assault on Judicial Sentencing Discretion, 57 SMU L. REV. 211, 233-36 (2004) (describing reaction of judges to Feeney Amendment).

My personal "sad epiphany" occurred when it became apparent that, notwithstanding long standing precedent that one would have thought prevented undue burdening of the Sixth Amendment right to trial by jury, the First Circuit actually and knowingly embraced a system where one set of "facts"...