U.S. v. Workman

• Decision Date: 01 April 1997
• Docket Number: No. 270,D,270
• Citation: 110 F.3d 915
• Parties: UNITED STATES of America, Appellee, v. Norman WORKMAN, aka Norm, aka Tony, Defendant-Appellant. ocket 95-1330.
• Court: U.S. Court of Appeals — Second Circuit

Page 915

110 F.3d 915

UNITED STATES of America, Appellee, v. Norman WORKMAN, aka Norm, aka Tony, Defendant-Appellant.

No. 270, Docket 95-1330.

United States Court of Appeals,Second Circuit.

Argued Sept. 30, 1996.

Decided April 1, 1997.

William J. Hochul, Jr., Assistant United States Attorney, Buffalo, NY, (Patrick H. NeMoyer, United States Attorney for the Western District of New York, Buffalo, NY), for Appellee.

Bruce R. Bryan, Syracuse, NY, for Defendant-Appellant.

Before: KEARSE, LEVAL, and NORRIS, ^* Circuit Judges.

LEVAL, Circuit Judge:

Norman Workman appeals from a judgment of the United States District Court for the Western District of New York (Curtin, J.), convicting him, upon his guilty plea, of racketeering in violation of 18 U.S.C. § 1962(c) and illegal use of a communication facility to commit a narcotics offense in violation of 21 U.S.C. § 843(b). The court sentenced Workman to concurrent terms of imprisonment of 95 months for the racketeering count and 48 months for the communication count, concurrent terms of supervised release of three years for the racketeering count and one year for the communication count, a mandatory special assessment of $100, and a $1,000 fine, with payments to be scheduled "[a]t a rate to be determined by the Bureau of Prisons."

Workman argues principally that: (1) the court should not have fined him $1,000 because he is indigent, and in any event should not have delegated the scheduling of payments to the Bureau of Prisons; (2) the probation department's failure to interview him in the preparation of the presentence report and his receipt of the report less than 35 days prior to sentence violated his rights under Fed.R.Crim.P. 32, as well as his due process rights under the Constitution; (3) his attorney provided ineffective assistance by failing to raise these arguments at the time of his sentence; and (4) he was entitled to a three-level reduction under the United States Sentencing Guidelines for acceptance of responsibility. We affirm in part and reverse and remand in part.

Background

On July 10, 1992, Norman Workman was arrested on a warrant pursuant to a 73-count indictment charging him and others with multiple offenses related to the activities in Buffalo of a narcotics trafficking gang known as the LA Boys. The LA Boys was a major drug-trafficking enterprise operating from the late 1980s through the early 1990s, whose members, including Workman, committed murders, kidnappings, and drive-by shootings, in furtherance of their drug conspiracy. Shortly after his arrest, Workman entered into a plea and cooperation agreement with the government (the "Agreement").

The Agreement was of the type specified in Fed.R.Crim.P. 11(e)(1)(C), which if accepted by the court commits the court either to sentence as agreed between the parties or to release the parties from the agreement and allow the defendant to revoke his plea. See Fed.R.Crim.P. 11(e)(2); United States v. Braimah, 3 F.3d 609, 611-12 (2d Cir.1993); United States v. Cunavelis, 969 F.2d 1419, 1422-23 (2d Cir.1992); United States v. Kemper, 908 F.2d 33, 37 (6th Cir.1990); USSG § 6B1.3. In exchange for Workman's guilty plea to one count of racketeering and one communication count, the government agreed to dismiss the remaining counts of the indictment against him and the parties stipulated to a combined adjusted offense level of 36. ¹ The Agreement also provided that if the government determined that Workman provided substantial assistance in the prosecution of other LA Boys members, the government would move for a downward departure pursuant to U.S.S.G. § 5K1.1. The parties agreed, however, that in departing downward the court could go no lower than level 30. Level 30 carries a sentencing range of 108 to 135 months imprisonment for criminal history category II.

On January 13, 1992, Workman pleaded guilty before Judge John T. Curtin of the Western District of New York. During the plea colloquy, the court reviewed the Agreement, with specific reference to the maximum potential departure to level 30 and implicitly accepted the Agreement pursuant to Fed.R.Crim.P. 11(e)(2), thereby binding itself to the sentence range provided. Cunavelis, 969 F.2d at 1422-23.

Workman proceeded to cooperate; he testified in detail against the violent and dangerous members of his drug-dealing gang and thereby unquestionably placed his life in danger. Deeming Workman's assistance particularly valuable, the government in April 1995 filed a motion pursuant to § 5K1.1 for a downward departure to level 27, thereby releasing the court from its obligation under Rule 11(e)(1)(c) to depart no lower than the stipulated level 30.

At sentencing, noting the value of Workman's cooperation and his acceptance of responsibility, the government urged departure to level 27. Judge Curtin observed that Workman had played a major role in the criminal enterprise and initially refused to depart below level 30. However, after Workman testified to his remorse, the danger his cooperation posed to himself and his family, and his acceptance of responsibility for his conduct, the court reconsidered and imposed a sentence of 95 months, which lies in the upper end of the level 27 range of 78 to 97 months.

Although Workman's guidelines range called for a fine between $20,000 and $200,000, the court found that he was able to pay only $1,000. Accordingly, the court imposed a fine of $1,000, due immediately, but stayed execution of the fine "provided that [Workman] makes timely installments, on a schedule to be fixed by the Bureau of Prisons while incarcerated." Anticipating that the fine "will be paid before his release," the court did not direct payment during the period of supervised release.

Discussion

I. The Fine

A. Imposition. We can dispose at the outset of Workman's contention that the court should not have imposed the fine of $1,000 due to his indigence. Section 5E1.2(a) of the United States Sentencing Guidelines provides that "[t]he court shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine." Current indigence is not an absolute barrier to imposition of a fine. See United States v. Fermin, 32 F.3d 674, 682 n. 4 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1145, 130 L.Ed.2d 1104 (1995). Even an incarcerated defendant can earn money in his prison account to pay the fine by working within the prison. Moreover, Workman did not object to the fine at sentencing and has made no showing, even on appeal, that he is unlikely to become able to pay the modest fine of $1,000. We affirm the imposition of the $1,000 fine.

B. Delegation of Scheduling of Fine Payments. Workman's more significant contention is that the district court lacked authority under 18 U.S.C. § 3572(d) to delegate the scheduling of partial payments of the $1,000 fine to the Bureau of Prisons. In United States v. Porter, 41 F.3d 68, 71 (2d Cir.1994), we held, with respect to restitution payments, that a district court may not delegate to the probation officer the task of making a payment schedule. See also United States v. Mortimer, 52 F.3d 429, 436 n. 8 (2d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 208, 133 L.Ed.2d 141 (1995). We recognized in Porter that the scheduling of future restitution payments involved a problem that had "troubled sentencing judges ever since the enactment of the Victim and Witness Protection Act of 1982," to wit, how to predict at the time of sentence what resources a then-indigent defendant might have in the future. Porter, 41 F.3d at 70. But the language of 18 U.S.C. § 3663(f), which provides for restitution, makes the order of restitution "part of the sentencing process," Porter, 41 F.3d at 70, and identifies the court as the maker of decisions relating to restitution, and though we sympathized with the district court's dilemma, we concluded that Congress had not intended to allow the district judge to "resolve this dilemma by authorizing a probation officer to make post-sentencing decisions as to either the amount of the restitution ... or the scheduling of installment payments." Id. at 71 (citations omitted).

In United States v. Kassar, 47 F.3d 562 (2d Cir.1995), we extended that restriction to cover the making of schedules for the payment of fines. We reasoned that because the statutory language in § 3572(d), providing for the assessment of fines, was identical to that in § 3663(f)(1) covering restitution, Congress must have intended the same restrictions for fines as for restitution. Id. at 568.

At oral argument of this case the government called to our attention the legislative history of § 3572(d), regarding fines. The government argues that this legislative history reveals Congress's expressed intention that courts would delegate the scheduling of deferred fine payments. The Report of the House Judiciary Committee for the Criminal Fine Improvements Act of 1987 explains that new § 3572(d), concerning the time and method of payment of a fine, "eliminates the Sentencing Reform Act requirement that the specific terms of an installment schedule be fixed by the court. The court is thus able to delegate the responsibility for setting specific terms to a probation officer." H.R.Rep. No. 390, 100th Cong., 1st Sess., § 7 (1987), reprinted in 1987 U.S.C.C.A.N. 2137, 2143.

Although this legislative history speaks only of delegation to "a probation officer," the government contends that it furnishes an adequate basis to permit delegation as to the scheduling of fines to the Bureau of Prisons, an agency outside the Judicial Branch, regardless whether such delegation is permitted for the scheduling of restitution payments.

We recognize that where the court sets a fine and determines that the defendant cannot make full payment immediately, but will be able to do so in the future, delay of the scheduling of future installments would be eminently sensible. The...