US v. Boshell, CR-88-361-S

• Decision Date: 11 January 1990
• Docket Number: CR-88-430-S.,No. CR-88-361-S,CR-88-361-S
• Citation: 728 F. Supp. 632
• Parties: UNITED STATES of America, Plaintiff, v. John BOSHELL, Defendant.
• Court: U.S. District Court — District of Washington

728 F. Supp. 632

UNITED STATES of America, Plaintiff, v. John BOSHELL, Defendant.

Nos. CR-88-361-S, CR-88-430-S.

United States District Court, E.D. Washington.

January 11, 1990.

Earl Hicks, Asst. U.S. Atty., Spokane, Wash., for plaintiff.

Aaron L. Lowe, Spokane, Wash., for defendant.

MEMORANDUM

ROBERT S. McNICHOLS, Chief Judge.

After a jury trial, Mr. Boshell was convicted of a single count of conspiracy to distribute cocaine. He was sentenced on January 4, 1990. At that time, the Court indicated that because the sentence imposed deviates substantially from that mandated under the Sentencing Guidelines, or at least the government's construction thereof, an explanatory memorandum would follow.

By all accounts, the venture which gave rise to the charge was impressive in scope, involved several dozen participants, as much as 90 kilograms of cocaine, and a nation-wide delivery scheme. While Mr. Boshell's role should not be minimized, he was a comparatively insignificant player. He also has some unique personal attributes.

Defendant had wanted to follow in the footsteps of his father and brother in law enforcement ever since he was a child. He did so by becoming a Los Angeles County Sheriff's Deputy for five years, and produced an unblemished record replete with citations for heroism and service beyond the call of duty. His involvement in the conspiracy commenced, not uncoincidentally, with the deterioration of his marriage. He apparently lost control of his life and served as a courier on at least five occasions. For that role, the Guidelines dictate a period of incarceration ranging from 151 to 188 months.

The government concedes that in the overall hierarchy, Mr. Boshell was an "average" player. The government further concedes that defendant built an enviable record during his years in law enforcement, but argues that having achieved a position of trust and authority, and having breached that position, an appropriate sentence would be the top end of the Guidelines.

Mr. Boshell posits various arguments in mitigation, and asks the Court to find that: (1) his participation was minimal (United States Sentencing Commission, Guidelines Manual, § 3B1.2(a) (Nov.1989) hereinafter "U.S.S.G."; (2) he has accepted responsibility (Id. at § 3E1.1; (3) he should be held accountable only for a quantity of less than 500 grams (Id. at § 2D1.1(a)(3)); and (4) his individual life history should weigh heavily in favor of departing from the Guidelines. The first three are factual matters and need not be addressed in this memorandum. The last presents issues of statutory construction, and provides the grist for this mill.

I. Statutory Conflict

To place the matter in perspective, the perceived conflicts are arrayed below.

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

18 U.S.C. § 3661.

In view of this limitation on limitations, it is surprising to see the Sentencing Guidelines purport to accomplish precisely what § 3661 says cannot be done. For example, the Guidelines limit the Court in a number of salient aspects in determining when departure is justified. Among those characteristics which cannot be considered, or given only limited consideration, are the following: (1) age (U.S.S.G. § 5H1.1, p.s.); (2) education (Id. at § 5H1.2, p.s.); (3) vocational skills (Id.); (4) mental condition (Id. at § 5H1.3, p.s.); (5) emotional instability (Id.); (6) physical condition (Id. at § 5H1.4, p.s.); (7) drug dependency (Id.); (8) successful recovery from drug dependency during the course of proceedings (Id.);¹ (9) employment history (Id. at § 5H1.5, p.s.); and (10) prior community service (Id. at § 5H1.6, p.s.).

Historically, when rehabilitation still remained a goal of the criminal justice system, each of these factors might have been deemed highly relevant depending upon the circumstances of a given case, but their continuing validity as sentencing criteria has now been effectively wiped out by virtue of the sections cited.²

The Guidelines purport to reconcile this conflict by appending language to § 3661 not placed there by Congress.

In determining the sentence to impose within the guidelines range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U.S.C. § 3661.

U.S.S.G., § 1B1.4 (emphasis added).

At first glance, this construction appears plausible since the focus is on information used for the "purpose of imposing an appropriate sentence," and, of course, what is an "appropriate sentence" is defined with reference to the Guidelines. The necessary assumption in order to validate this circular result, however, is that the Guidelines are on a par with congressional enactments. Therein lies the dilemma. If Congress said "Thou shalt," and in purportedly implementing legislative intent, the Secretary of an administrative agency said "Thou shalt not," then clearly the regulatory exercise would be ultra vires and thus void. McNabb v. Bowen, 829 F.2d 787, 789 (9th Cir.1987).

That the Guidelines do not per se offend the Separation of Powers Doctrine is settled. Mistretta v. United States, ___ U.S. ___, 109 S.Ct. 647, 658, 102 L.Ed.2d 714 et seq. (1989). The extent to which the Commission may displace existing legislation is not. Stated another way, it cannot be doubted that Congress has the authority to delegate supplemental rule-making powers. Id. What can be doubted is whether Congress may delegate the authority to strike down an express statute which both pre-existed the Guidelines, and which Congress recodified as part and parcel of the Sentencing Reform Act SRA which gave birth to the Guidelines.

If the inquiry could end here, so would this discussion with a ruling that to the extent the Guidelines purport to limit a court's discretion in making a departure decision, they are void for lack of a statutory predicate.

However, there is more, for not only is there a conflict between the cited Guideline policy statements and § 3661, but also a statutory conflict. The substantive provisions of the SRA are found, as might be expected, in Title 18, U.S.C. The procedural provisions are located in Title 28. The sometimes fine line between what is substantive and what is procedural has never been more obscure, for 28 U.S.C. § 994 contains provisions which suggest that § 3661, although re-enacted and recodified together with the SRA, may not mean what it says.

The Commission in establishing categories of defendants for use in the guidelines and policy statements governing the imposition of sentences of probation, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or supervised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, with respect to a defendant, have any relevance to the nature, extent, place of service, or other incidents of an appropriate sentence, and shall take them into account only to the extent that they do have relevance —

(1) age:

(2) education;

(3) vocational skills;

(4) mental and emotional condition to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant;

(5) physical condition, including drug dependence;

(6) previous employment record;

(7) family ties and responsibilities;

(8) community ties;

(9) role in the offense;

(10) criminal history; and

(11) degree of dependence upon criminal activity for a livelihood.

28 U.S.C. § 994(d).

More explicit in terms of direction is § 994(e):

The Commission shall assure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant.

To say there is a conflict between 28 U.S.C. § 994(d) & (e) and 18 U.S.C. § 3661 would be to understate the proposition.³ The plain and inescapable fact is that they cannot coexist.

Instructive in approaching this conflict is United States v. Wills, 881 F.2d 823 (9th Cir.1989). Wills addressed the question of whether a court has discretion to order a federal sentence to run concurrently with a state sentence. The import of the issue was that if such discretion does not exist, and if a federal sentence automatically runs consecutively, then the result would be a "direct consequence" of the plea and an accused would be entitled to be apprised of that consequence pursuant to FRCrP 11.

What troubled the Wills Court was the conflict between 18 U.S.C. § 3584(a) which clearly confers discretion on the trial court to determine whether a sentence should run consecutively, and U.S.S.G. § 5G1.3 which holds that if a defendant is already serving an unexpired sentence, the new sentence "shall" run consecutively. As is the situation at bar, there was also the overlay of a conflict between Title 18 and Title 28.

28 U.S.C. § 994(a)(1)(D) confers upon the Sentencing Commission the authority to promulgate guidelines dictating "a determination whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively." The same section goes on to provide as follows:

The Commission, in the guidelines promulgated pursuant to subsection (a)(1), shall for each category of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code.

28 U.S.C. § 994(b)...