US v. Davis, CR 88-36(a) JSL.

• Decision Date: 30 June 1989
• Docket Number: No. CR 88-36(a) JSL.,CR 88-36(a) JSL.
• Citation: 715 F. Supp. 1473
• Parties: UNITED STATES of America, Plaintiff, v. Greg DAVIS, et al., Defendants.
• Court: U.S. District Court — Central District of California

715 F. Supp. 1473

UNITED STATES of America, Plaintiff, v. Greg DAVIS, et al., Defendants.

No. CR 88-36(a) JSL.

United States District Court, C.D. California.

June 30, 1989.

Greg Davis and David Chesnoff, Las Vegas, Nev., Alfredo Chavaria-Castaneda and Jeffrey Pope, West Covina, Cal., Robert Acevedes-Ramirez and Jerry Scotti, Beverly Hills, Cal., and Moises Negron, Jr. and

Byron C. Thompson, Oakland, Cal., for defendants.

Tom Umberg, Asst. U.S. Atty., Santa Ana, Cal., for plaintiff.

OPINION AND ORDER

LETTS, District Judge.

The issue presented by this case is whether the Sentencing Guidelines, 18 U.S. C.A. §§ 3551-3742 (West 1985 & Supp. 1989) and 28 U.S.C.A. §§ 991-998 (West Supp.1989) (the "Guidelines"), can be applied without violating the Due Process Clause of the Fifth Amendment. This court holds that they cannot.

FACTS

On October 25, 1988, a federal jury found defendant Greg Davis and three co-defendants, Alfredo Chavaria-Castaneda, Robert Acevedes-Ramirez and Moises Negron, Jr., guilty of conspiracy and other crimes arising out of their attempt to purchase cocaine.¹ None of the defendants testified at trial. The Government's evidence included testimony that the attempt was made in the course of a "sting" operation in which a special agent of the Federal Drug Enforcement Agency ("the Agent") agreed to supply the cocaine and the defendants agreed to bring money to a specified place of exchange. When the defendants later attempted to make the exchange, they were arrested.

Pursuant to the Sentencing Guidelines, the probation office prepared a Presentence Investigation Report (the "Presentence Report") prior to sentencing. Davis refused to discuss the offense with the probation officer, first because he could not reach his counsel,² and then on advice of counsel.

Davis was arrested, tried and convicted under the name "Greg Davis." According to the Presentence Report, fingerprint identification indicated that Davis' true name is "David Preston Hollier."³ While no criminal record was found under the name of "Greg Davis," "David Preston Hollier" has a substantial criminal history.⁴

Under the Guidelines, the specific drug offenses for which Davis was convicted requires confinement for periods ranging from 10 months⁵ to life imprisonment. In the Presentence Report, the probation officer determined that the applicable guideline range within which Davis should be incarcerated was from 360 months to life. The total offense level upon which this determination was made was calculated as follows: (1) Base Level Offense—36 points; (2) Adjustment for Role in the Offense—plus four points; (3) Obstruction of Justice— plus two points; (4) Acceptance of Responsibility — no reduction. Davis received one point each for three vehicle code violations, which placed him in Criminal History Category II.⁶

Davis now challenges the Sentencing Guidelines on Fifth Amendment due process grounds.⁷

OVERVIEW

The Guidelines require courts to apply certain factors in determining the term of incarceration to be imposed upon defendants convicted in criminal cases. To determine which of the factors are applicable, a court must decide numerous questions of fact. The available information upon which a court must rely in making these determinations is often by necessity sparse, biased or otherwise inadequate. The court is nevertheless required to apply the factors found to be applicable in accordance with fixed predetermined weights. See generally United States Sentencing Commission, Guidelines Manual, §§ 1B1.-1-1B1.9, at 1.13 (hereinafter "Guidelines Manual").⁸ The Guidelines provide no means for altering these weights to reflect relative uncertainties of the underlying facts.

It is important to distinguish the issue decided here from the much larger issues which have tended to dominate the general discussion of the Guidelines.⁹ The issue here is not whether due process requires that every criminal sentence be imposed individually through the exercise of judicial discretion. This issue is significant, but it need not be addressed here. The issue also is not whether Congress has the power to limit the scope of judicial discretion in sentencing or even to eliminate such discretion completely.

The court here assumes, without deciding, that Congress does have the Constitutional power to eliminate judicial discretion as an element of sentencing. It could accomplish this simply by providing mandatory fixed periods of incarceration applicable equally to all who are convicted of specified crimes. The court also assumes, a fortiori, that Congress has the power to limit the scope of judicial discretion without completely eliminating it. This could be accomplished lawfully by establishing maximum and minimum penalties applicable to specific crimes. In this regard, the court further assumes that Congress would have absolute discretion in fixing the spread between such penalties. Finally, the court assumes that Congress has the power to direct any discretion left to courts for sentencing purposes by requiring judges to consider certain sentencing factors, if determined to be applicable, and to require imposition of at least a minimum period of incarceration for the underlying offense.

The general discussion surrounding the Guidelines has suggested that the Guidelines limit a court's discretion in sentencing no further than the court here assumes Congress may. The suggestion is that the Guidelines merely narrow the previously unfettered discretion of judges by forcing them to adopt a more structured mode for their decision-making.

This suggestion, while accurate to a point, hides a far more harsh reality. It is true that the Guidelines leave room for the exercise of unfettered judicial discretion. It is also true that the Guidelines mandate a structured mode of decision.

What is hidden, however, is that the range of sentencing discretion left to the sentencing judge is very narrow.¹⁰ Before this range is even reached, the Guidelines establish vastly disparate yet mandatory periods of incarceration. These periods are based on factors which, for the most part, the sentencing judge is required to apply on the basis of any available information, whether or not that information was introduced at trial or proved beyond a reasonable doubt.¹¹

The weight assigned to each factor determined to be applicable is the preassigned weight established by Congress through the Guidelines. These weights, however, may not be adjusted to reflect any relative uncertainty in the underlying facts. Instead, the weighted factors found to apply are added mechanically, one on top of the other. The cumulation of these factors results in mandatory and substantial periods of incarceration that frequently bear no relation to the severity of the crime for which the defendant was convicted.¹² Indeed, the dominant portion of the sentence received by the defendant may be comprised of sentencing factors, and not the proven elements of the crime of conviction.

Invariably, these non-proven and highly individualized factors vary from defendant to defendant, even among those convicted of the same crime. The result is that through the Guidelines, Congress has required that different persons convicted of the same crime receive disparate sentences based upon facts not made elements of that crime or proved beyond a reasonable doubt.¹³ In this court's view, Congress cannot require such disparities without also requiring that the specific lengths of the sentences turn on facts determined at trial according to a common standard of proof based upon information meeting a common standard of reliability.¹⁴

DUE PROCESS CONCERNS

In no area of law is a higher degree of certainty required than in the determination of the facts upon which an individual is to be deprived of personal liberty. The Due Process Clause commands that Congress may not require that any person be incarcerated for a fixed period directly attributable to a specific fact determination unless proved beyond a reasonable doubt.¹⁵ In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975); see also McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

The Government has argued that a distinction is drawn when the issue is not whether one will be deprived of personal liberty, as in the determination of guilt or innocence, but rather for how long one will be deprived, as in sentencing. The Government points out that in fixing sentencing lengths, judges have always taken into account factors which were not elements of the crime, and as to which the relevant facts were not shown with any articulated degree of certainty.

The Government has not argued — nor could it — that judges have ever applied these factors with fixed weights applicable to all cases without adjustment to reflect differing degrees of certainty. By necessity, the exercise of discretion in sentencing requires the sentencing authority to weigh and balance various factors. United States v. Wilkins, 659 F.2d 769, 773 (7th Cir.1981), cert. denied, 454 U.S. 1102, 102 S.Ct. 681, 70 L.Ed.2d 646 (1981). It requires an equation between the cumulative weight of the factors deemed relevant for sentencing and the length of sentence imposed. Sentencing judges do not assign the same weight to facts deemed more likely than not on the basis of a poorly educated guess as they would to facts proved beyond a reasonable doubt. In the exercise of sentencing discretion, judges adjust the weights of the sentences to reflect the differences in the relative certainty of information on which the sentences are based.

Determinations of fact made by proof beyond a reasonable doubt and based upon evidence presented at a jury trial cannot be said to have the same weight as determinations deemed simply more likely than not on the basis of sparse or unreliable...