US v. Hayes
| Citation | 703 F. Supp. 1493 |
| Decision Date | 11 January 1989 |
| Docket Number | Crim. A. No. 88-AR-136-S. |
| Parties | UNITED STATES of America v. Sam HAYES, Jeffrey Lynn Howard, Herman Lee Curry, and Haskell Watson, Jr. |
| Court | U.S. District Court — Northern District of Alabama |
Frank W. Donaldson, U.S. Atty., John Earnest, Jr., Asst. U.S. Atty., Birmingham, Ala., for U.S.
J. Harry Blalock, Birmingham, Ala., for defendant Sam Hayes.
Tommy Nail, Birmingham, Ala., for defendant Jeffry Lynn Howard.
Russell T. McDonald, Birmingham, Ala., for defendant Herman Lee Curry.
Joel Alexander, Birmingham, Ala., for defendant Haskell Watson, Jr.
This judge has never written an opinion using the personal pronoun. I have always used the traditionally formal and somewhat stilted language, "this court," to describe myself. This case, however, peculiarly lends itself to a deviation from this norm. The personal pronoun will therefore be used hereinafter in order to avoid any possible implication that what I am saying represents the thinking of the entire bench of the United States District Court for the Northern District of Alabama. Some of its judges may agree. Others may not.
In the above-entitled criminal case, there has arisen an issue that pervades the sentencing consideration as to four defendants: Sam Hayes, Jeffrey Lynn Howard, Herman Lee Curry, and Haskell Watson, Jr. I would have imposed upon each of these defendants a lesser custodial sentence than I did but for my conclusion that the minimum allowable sentence as to each defendant is ten (10) years. Their sentencing hearings were held on January 5, 1989, a considerable period of time after their adjudications of guilt. This time allowed counsel a reasonable opportunity to research the subject about which I now speak. Although the individual sentencing orders were actually signed on January 6, 1989, and some notices of appeal may have already been filed, I expressly reserved the right to write an opinion because of the complexity and the importance of the issue, not just in this case, but also in others like it.
On November 28, 1988, pursuant to a plea bargain, Hayes entered a plea of guilty to Count One of the indictment, which originally named eight defendants and contained twenty counts. Only five counts charged Hayes with any criminal violation. In exchange for Hayes' guilty plea to Count One, the government dismissed the other four counts against him and recommended a custodial sentence not to exceed four (4) years, although the maximum penalty for the crime charged in Count One is life imprisonment and a fine of $4,000,000.00. The government pointed to Hayes' extensive cooperation after his arrest as the mitigating factor leading to its recommendation of a lenient sentence.
During the lengthy colloquy which preceded my acceptance of Hayes' plea and my adjudication of his guilt under Count One, I made it crystal clear to Hayes that I think Count One, in all probability, carries a minimum sentence of ten (10) years, perhaps even to be followed by a mandatory term of supervised release of not less than five (5) years. This colloquy was occasioned by the fact that I had just acquired the information that effective November 18, 1988, a "technical" amendment to the criminal statute under which Hayes was being sentenced required a new look at its meaning. This new amendment, Public Law 100-690, was passed by both the House of Representatives and the Senate on October 21, 1988, and was signed into the law by the President on November 18, 1988. The United States Attorney and Hayes were unfamiliar with this fact and with the content of the amendment and with its legislative history until I brought it all to their attention during the plea litany. After accepting the plea, I delayed the imposition of sentence, both in order to study Hayes' pre-sentence report and in order to give Hayes' counsel and the United States Attorney time within which to respond further to the serious question of statutory construction which I had detected from a reading of the legislative reports. I raised the question sua sponte.
On December 10, 1988, Howard, Curry and Watson all were found guilty by a jury of the charges made against them in the same Count One as to which Hayes had already confessed guilt. These three were also set for sentencing on January 5, 1989.
After December 10, 1988, further study has confirmed my earlier, orally expressed, tentative opinion. Because I have invited and expect appeals to the Eleventh Circuit by Hayes, Howard, Curry and Watson from their sentences insofar as their sentences reflect my firm belief that Congress mandated a minimum custody period of ten (10) years, it is appropriate that I articulate my reasons for arriving at that belief.
Hayes entered his guilty plea pursuant to Rule 11(a)(2), F.R.Cr.P., with my permission, upon the express condition that he be allowed to appeal from any sentence in excess of the four (4) years recommended by the government.
I wish to make several preliminary points. First, the four sentences which I imposed on January 6, 1989, were not imposed with any reference to, or any reliance upon, the Sentencing Guidelines. The consensus opinion of the judges of the United States District Court for the Northern District of Alabama is that the Guidelines are unconstitutional. United States v. Allen, 685 F.Supp. 827 (N.D.Ala.1988). We await the decision of the Supreme Court. Second, as to Hayes, nothing in his pre-sentence report or any feeling I have about the level of his participation, or his degree of culpability, would have led me to exceed the government's recommendation of four (4) years. I imposed the ten (10) year sentence on Hayes, and, for that matter, on the other three convicted by the jury, only because I am controlled by overriding statutory constraints. Third, there are admittedly certain elements in this situation which can validly be described as unfair, particularly when equality of punishment was one reason for the creation of the Sentencing Commission and for its promulgation of the Sentencing Guidelines, whether constitutional or not. Another defendant in this case, Harold Singleton, also pled guilty to Count One under an earlier plea bargain, pursuant to which he actually testified against his alleged co-conspirators. On October 26, 1988 (before the recent legislative alert), Singleton was sentenced by Chief Judge Sam C. Pointer, Jr., of this court exactly in accordance with the government's recommendation of a six (6) year custodial term, four (4) years less than what I now find to be the statutory minimum. Singleton's previous criminal history is far more extensive and more offensive to society than any of the criminal records of the four defendants I have sentenced under the same Count One. While Singleton was being sentenced by Judge Pointer, there was no discussion or consideration of the possibility of a statutory construction which would require a minimum sentence of ten (10) years or of a following five (5) year period of supervised release, undoubtedly because there was nothing to bring the potential problem to Judge Pointer's attention. While the disparate treatment of Singleton and my four defendants contains a dimension which may seem unfair, such "unfairness," if it exists, does not release me, and cannot deter me, from imposing on my four defendants what I find to be the minimum sentence mandated by Congress. Admittedly, the situation is bothersome, because I have a conscience, but the judicial prognosis was fully explained to Hayes before his guilty plea was accepted, and Hayes proceeded nevertheless to tender his guilty plea with the full appreciation that, in all probability, his only escape from ten (10) years in jail would be a turning of the key by the Eleventh Circuit or by the Supreme Court, if one or both of these appellate courts should disagree with me.
Count One invoked 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1), and (b)(1)(A)(ii)(II). It charged all eight defendants with conspiring to distribute five (5) kilograms of cocaine. The drug conspiracy statute, § 846, as it appeared in the United States Code when these defendants did whatever they did, provided:
The substantive drug offense statute here invoked, § 841, provides, in pertinent part:
(emphasis supplied).
It has been judicially determined in this case that these defendants did, in fact, conspire to distribute five (5) kilograms of cocaine in violation of § 846. If they had been found guilty of actually distributing, or possessing with intent to distribute, the same five (5) kilograms of cocaine, a custodial sentence of not less than ten (10) years would clearly be unavoidable...
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