U.S. v. White, VALDEZ-TREVIN

Citation869 F.2d 822
Decision Date31 March 1989
Docket Number88-1247,88-3233,VALDEZ-TREVIN,D,88-3215,Nos. 88-1073,88-1354 and 88-2259,88-1410,88-1424,88-3389,s. 88-1073
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Suzie WHITE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel ORTEGA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael W. CHAMBLESS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mobud OKABE, a/k/a Masami Machibda, a/k/a Tony Okabe, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert LEMOINE, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jesus VENEGAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jorge SOLTERO, and Alexander Rodriguez, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Pedro Otonielefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Keri Lynn HUKEL, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Thomas S. Morgan (Court-appointed), Midland, Tex., for White.

Karen Skrivseth, Atty., Appellate Section, Criminal Div., U.S. Dept. of Justice, Washington, D.C., LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for U.S. in No. 88-1073.

John R. Steer, David E. Anderson, Deputy Gen. Counsels, U.S. Sentencing Com'n, Washington, D.C., for amicus U.S. Sentencing Com'n.

Christine W. Kelso, Asst. Public Defender, Lucien B. Campbell, Federal Public Defender, El Paso, Tex., for Ortega.

LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., Clifford R. Cronk, Asst. U.S. Atty., El Paso, Tex., for U.S. in No. 88-1247.

Patti A. Goldman, Public Citizen Litigation Group, Washington, D.C., Virginia Laughlin Schlueter, Asst. Public Defender, John T. Mulvehill, Federal Public Defender, New Orleans, La., for Chambless.

Robert J. Boitmann, Asst. U.S. Atty., John Volz, U.S. Atty., Gerry Deegan, Asst. U.S. Atty., New Orleans, La., for U.S. in No. 88-3215.

Patti A. Goldman, Public Citizen Litigation Group, Washington, D.C., Francis King, Asst. Federal Public Defender, New Orleans, La., for Okabe.

Kathleen Kahoe, Robert J. Boitmann, Asst. U.S. Attys., New Orleans, La., for U.S. in No. 88-3233.

John H. Craft, Asst. Federal Public Defender, New Orleans, La., for Lemoine.

John Volz, U.S. Atty., New Orleans, La., for U.S. in No. 88-3389.

Robert R. Harris, El Paso, Tex., for Venegas and Soltero.

LeRoy Morgan Jahn, Janet E. Bauerle, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for U.S. in Nos. 88-1410, 88-1354.

Salvador C. Ramirez, El Paso, Tex., for Ramirez.

LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for U.S. in No. 88-1424.

Tony Chavez, Michael McLeaish, Odessa, Tex., for Valdez-Trevino.

Marjorie Meyers, Roland E. Dahlin, Louis J. Menendez, Federal Public Defenders, Houston, Tex., for Hukel.

Frances H. Stacy, Asst. U.S. Atty., Henry Oncken, U.S. Atty., Houston, Tex., for U.S. in No. 88-2259.

Appeals from the United States District Court for the Western District of Texas.

Appeals from the United States District Court for the Eastern District of Louisiana.

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

Before CLARK, Chief Judge, BROWN and JOLLY, Circuit Judges.

PER CURIAM:

These cases, which have been consolidated for argument and appeal, involve the application of the sentencing guidelines promulgated by the United States Sentencing Commission pursuant to the Sentencing Reform Act of 1984. Following oral argument, this panel, exercising the court's supervisory power, directed that the guidelines be applied in all district courts of the Fifth Circuit. United States v. White, 855 F.2d 201 (5th Cir.1988). We retained our jurisdiction over these cases but rendered no decision on the merits pending the decision of the United States Supreme Court in Mistretta v. United States, which was to address the substantial constitutional issues presented here. The Supreme Court has now rendered its decision in Mistretta, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), and we in turn reach the remaining issues raised by the appellants.

Those remaining issues address both constitutional attacks not raised in Mistretta and the legality of the sentencing guidelines. It is argued that the guidelines are unconstitutional because they too narrowly limit the sentencing court's discretion, thereby limiting the defendant's right to present mitigating factors in violation of the Due Process Clause of the United States Constitution and because they deprive defendants of their right to a jury trial by encouraging guilty pleas in contravention of the sixth amendment. In one of these consolidated cases, United States v. White, 855 F.2d 201 (5th Cir.1988), the appellant argues that application of the guidelines to a conspiracy that began prior to the enactment of the guidelines violates the Ex Post Facto Clause. The appellants also argue that the sentencing guidelines contravene the clear congressional mandate of the Sentencing Reform Act of 1984. Finally, the appellants argue that the guidelines never became effective because the required General Accounting Office (GAO) report was inadequate and untimely. The arguments described above are without merit. The other issues raised are controlled by the holdings of Mistretta v. United States. We affirm the sentences imposed on all defendants.

Each of the defendant/appellants in these consolidated appeals was sentenced according to the sentencing guidelines promulgated by the United States Sentencing Commission. With one exception discussed below, their crimes are irrelevant. They attack the validity of the guidelines, not the application of the guidelines in particular cases. For a discussion of the methodology for applying the guidelines see United States v. Mejia-Orosco.

I.

The guidelines were designed to create some limits to the discretion of district judges in sentencing, so as to produce greater uniformity among the sentences imposed upon similar offenders convicted of like crimes. See Mejia-Orosco, 867 F.2d 216 (5th Cir.1989). Appellants argue that this restricted discretion violates the Due Process Clause because it unduly limits the right of an accused to present mitigating factors prior to sentencing. There is, however, no such right guaranteed by the Constitution. The Constitution does not require individualized sentences. Lockett v. Ohio, 438 U.S. 586, 602, 98 S.Ct. 2954, 2963, 57 L.Ed.2d 973 (1978). Congress has the power to completely divest the courts of their sentencing discretion and to establish an exact, mandatory sentence for all offenses. Id. at 603-04, 98 S.Ct. at 2964-65. If Congress can remove the sentencing discretion of the district courts, it certainly may guide that discretion through the guidelines.

II.

The guidelines provide for a reduction in sentence if the defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility" for his criminal conduct. Guideline 3E1.1. A defendant who puts the government to its proof by challenging factual guilt may find it difficult, after conviction, to persuade the district court that he is entitled to this reduction. The official commentary to guideline 3E1.1 states,

A defendant may manifest sincere contrition and take steps toward reparation and rehabilitation even if he exercises his constitutional right to a trial. This may occur when a defendant decides to go to trial to assert and preserve issues that do not relate to factual guilt, to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct, or to raise evidentiary issues that may result in an acquittal.

Id., commentary. It is argued that this provision places an unconstitutional premium on the exercise of an accused's right to a trial by jury under the sixth amendment.

Even assuming that the sole purpose of this guideline is to encourage guilty pleas, it is not unconstitutional for the government to bargain for a guilty plea in exchange for a reduced sentence. Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1970); Roberts v. United States, 472 F.2d 1195, 1196 (5th Cir.1973). The guideline, in fact, does not guarantee that a defendant who pleads guilty will receive a lower sentence. The defendant must establish his sincere contrition. The commentary to the guideline states, "A guilty plea may provide some evidence of the defendant's acceptance of responsibility. However, it does not, by itself, entitle a defendant to a reduced sentence under this section." Guidelines 3E1.1, commentary. The fact that a more lenient sentence is imposed upon a contrite defendant does not establish a corollary that those who elect to stand trial are penalized. Smith v. Wainwright, 664 F.2d 1194, 1196 (11th Cir.1981); United States v. Thompson, 476 F.2d 1196, 1201 (7th Cir.), cert. denied, 414 U.S. 918, 94 S.Ct. 214, 38 L.Ed.2d 154 (1973).

III.

Suzie White argues in her appeal, No. 88-1073, that application of the sentencing guidelines to her crime violates the Ex Post Facto Clause. White was convicted of conspiracy to possess heroin with the intent to distribute it, in violation of 21 U.S.C. Secs. 841(a)(1) & 846. The conspiracy for which she was charged and convicted began before the effective date of the sentencing guidelines, November 1, 1987. United States v. Byrd, 837 F.2d 179, 181 (5th Cir.1988). Thus, she argues, any application of the guidelines to her crime would be ex post facto. Conspiracy is a continuing offense. Assuming that the guidelines proscribe a sentence for her drug conspiracy offense greater than the previous norm, the Ex Post Facto Clause, which bars an increase in the punishment for an offense after it has been committed, is not violated by applying an increased penalty to White's...

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