US v. Curran

• Decision Date: 29 September 1989
• Docket Number: No. 88-10027-02.,88-10027-02.
• Parties: UNITED STATES of America, Plaintiff, v. Kimberly CURRAN, Defendant.
• Court: U.S. District Court — Central District of Illinois

724 F. Supp. 1239

UNITED STATES of America, Plaintiff, v. Kimberly CURRAN, Defendant.

No. 88-10027-02.

United States District Court, C.D. Illinois.

September 29, 1989.

K. Tate Chambers, Asst. U.S. Atty., Peoria, Ill., for plaintiff.

Richard H. Parsons, Peoria, Ill., for defendant.

MEMORANDUM OPINION

MIHM, District Judge.

On September 21, 1989, Defendant Kimberly Curran came before this Court to be sentenced. She had previously pleaded guilty to conspiracy to possess with intent to distribute cocaine. In return for her plea of guilty, charges of distribution of cocaine and possession with intent to distribute cocaine had been dropped.

The Sentencing Guidelines provided a sentencing range of 57 to 63 months, while the statute provided a mandatory minimum sentence of five years. 21 U.S.C. §§ 841(b)(1)(B) and 846. This Court determined, however, that the Defendant had provided "substantial assistance" to the Government and that statutory and Sentencing Guideline provisions dealing with reductions for substantial cooperation were unconstitutional. A sentence of 48 months, lower than either the Guideline range or the statutory minimum, was imposed. This opinion is intended to supplement and explain the Court's oral findings on that date.

BACKGROUND

At the sentencing hearing, the United States presented evidence through an FBI agent which established that the Defendant had provided complete and truthful information to the Government regarding her involvement in a multi-kilo cocaine conspiracy. Curran had testified against co-Defendant Donald Meeks at his trial and gave crucial testimony at the sentencing hearing of Charles "Blackie" Spears, another co-Defendant, on the same day she was sentenced. In the absence of her testimony against Blackie Spears, the Government would have been hard pressed to prove the number of kilos for which it argued Defendant Spears should be held accountable in his sentence. Curran's testimony increased the probable amount of cocaine chargeable to Spears from just over one kilogram to over five kilograms, thus increasing the range from 97-121 months to 188-235 months.

In spite of the Government's position that Defendant Curran had rendered substantial assistance to them, no motion was filed pursuant to either 18 U.S.C. § 3553(e) or § 5K1.1 of the Sentencing Guidelines, requesting the Court to impose a sentence below the mandatory minimum sentence or below the guideline range.

The reason given by the U.S. Attorney for his decision not to file such a motion was that Defendant Curran did not meet the U.S. Attorney's profile for the filing of such a motion. Specifically, the profile requires that, in order to be considered for such a motion, the defendant must have (among other things) participated in covert operations as part of her cooperation. Kimberly Curran's cooperation did not involve any covert activity.

18 U.S.C. § 3553(e) provides in pertinent part:

Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

Section 5K1.1 of the Sentencing Guidelines authorizes a similar departure from the guideline range:

Upon motion of the Government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

The Court finds that both of these provisions are unconstitutional because they are in violation of a Defendant's rights to substantive and procedural due process.

SUBSTANTIVE DUE PROCESS

The right to substantive due process means that the Government cannot take actions which on the whole runs counter to "some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).

What can be more basic to the scheme of constitutional rights precious to us all than the right to fairness throughout the proceedings in a criminal case?¹ The traditions of the judicial process in this country are based upon the concept of the adversarial process, a process which is designed to allow both sides to argue to a neutral decision maker. Yet the provisions at issue here operate at complete odds with that concept. The defendant cannot approach the decision maker with argument on an issue relevant to length of sentence. See, 28 U.S.C. § 994(n). The court cannot consider the issue sua sponte but must depend upon the Government to raise it; in fact, sometimes, such as in this case, the provisions require the Court to ignore facts of which it already has knowledge and which are indisputably relevant. This process thus not only handcuffs the defendant but also impacts upon the neutrality of the decision maker. The results of such a proceeding simply cannot comport with traditional notions of justice fundamental to our system.

If Congress had merely said that anyone who is convicted of this offense will serve a mandatory minimum sentence of five years, with no exceptions, that would have been constitutional; Congress' power to impose minimum mandatory sentences has withstood numerous constitutional challenges. See, e.g., United States v. Smith, 602 F.2d 834 (8th Cir.1979). (See also cases cited herein at page 7 upholding Guidelines). But when Congress added the caveat of § 3553(e), it opened the door to a challenge based on substantive due process. It is not that a mandatory minimum sentence is offensive as a matter of law, nor that the United States Attorney's profile itself offends our collective sense of justice. The problem presented here is more basic, more fundamentally troubling. A scheme of ordered liberty is diminished when one party's participation in a fair, adversarial process is limited, as the defendant is limited by § 3553(e) and § 5K1.1.

This Court has always believed that cooperation with the government is something to be encouraged, and drug enforcement is one area where that is doubly true. The Court does not intend that this ruling interfere with the legitimate decision-making prerogative of the executive branch. But where a statute like 18 U.S.C. § 3553(e) or a regulation like § 5K1.1 withholds from the defendant the right to present to the court an issue so intimately related to the appropriate length of sentence, then such a statute or regulation must be struck down as fundamentally unfair.

The final arbiter of the exercise of prerogatives of this nature must rest with the Court. Either side must be able at least to raise the possibility of a downward departure for cooperation.

PROCEDURAL DUE PROCESS

A longer sentence in this case would have deprived Defendant of a significant liberty interest; a sentence in conformance with the Guidelines or with the statute would have been at least nine months longer and a sentence at the mandatory minimum would have been 12 months longer than the one actually imposed. Certainly that is a significant deprivation of liberty. Furthermore, the deprivation would have been the result of a procedure which is inherently unfair because it is tipped too far in favor of the Government.

A defendant has due process rights during the sentencing stage. United States v. Satterfield, 743 F.2d 827 (11th Cir.1984); United States v. Florence, 741 F.2d 1066 (8th Cir.1984); United States v. Pugliese, 805 F.2d 1117, 1122 (2nd Cir.1986); United States v. Johnson, 607 F.Supp. 258 (N.D. Ill.1985). It is true that due process rights at sentencing may be somewhat more limited than during trial, United States v. Palma, 760 F.2d 475 (3rd Cir.1985), Satterfield, 743 F.2d 827. Generally a sentencing proceeding comports with due process requirements so long as the proceeding is not fundamentally unfair. Armstrong v. Dugger, 833 F.2d 1430 (11th Cir.1987).

The Supreme Court has held that four general factors must be evaluated to determine what process is due at sentencing.

(1) the nature of the individual interest;

(2) the risk of error inherent in present methods;

(3) the value of additional safeguards; and

(4) the Government's interest, including fiscal burdens, of any additional safeguards.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Courts have found that a fair sentencing proceeding consists at least of:

(1) imposition of a sentence based on accurate and true information and not on false, misleading information or on groundless inferences or unfounded assumptions; Satterfield, 743 F.2d at 840;

(2) an opportunity to question the proceedings leading to imposition of sentence; Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977);

(3) an opportunity to contest the facts presented or relied upon by the government, Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Satterfield, 743 F.2d at 840;

(4) adequate notice, Shelton v. United States, 497 F.2d 156, 159 (5th Cir.1974); Satterfield, 743 F.2d at 830.

A number of Circuit Courts have considered whether the Guidelines as a whole violate due process and have agreed unanimously that they do not. United States v. Frank, 864 F.2d 992 (3rd Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989); United States v. White, 869 F.2d 822 (5th Cir.) (per curiam), cert. denied, ___ U.S. ___, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989); United States v. Seluk, 873 F.2d 15 (1st Cir.1989); United States v. Vizcaino, 870 F.2d 52 (2nd Cir. 1989); United States v. Bolding, 876 F.2d 21 (4th Cir.1989); United States v. Allen, 873 F.2d 963 (6th Cir.1989); United States v. Pinto, 875 F.2d 143 (7th Cir.1989); United States v. Brittman, 872 F.2d 827 (8th Cir.1989); United States v. Thomas, 884 F.2d 540 (10th Cir.1989); United States v....