US v. Jacobs, No. Cr. 92-116.

• Decision Date: 03 March 1993
• Docket Number: No. Cr. 92-116.
• Citation: 815 F. Supp. 898
• Parties: UNITED STATES of America, Appellee, v. Brenda L. JACOBS, Appellant.
• Court: U.S. District Court — District of South Carolina

815 F. Supp. 898

UNITED STATES of America, Appellee, v. Brenda L. JACOBS, Appellant.

No. Cr. 92-116.

United States District Court, D. South Carolina, Columbia Division.

March 3, 1993.

Eric Ruschky, Asst. U.S. Atty., Columbia, SC, for appellee.

Susan Z. Hitt, Asst. Federal Public Defender, Columbia, SC, for appellant.

OPINION

SHEDD, District Judge.

This matter is before the Court on the Government's appeal of a sentence imposed by the Honorable E.S. Swearingen, United States Magistrate Judge, upon the defendant, Brenda Jacobs. Jacobs was charged with and pled guilty to possession of marijuana in violation of 21 U.S.C. § 844 and driving under the influence, second offense, in violation of South Carolina Code section 56-5-2930, assimilated by 18 U.S.C. § 13 (the Assimilative Crimes Act).¹ The Government objects to the magistrate judge's decision not to impose the minimum fine for driving under the influence, second offense, as required by state law.² The Court has carefully reviewed the record and finds that the magistrate judge's decision was in error. The Government, however, failed to object to the sentence at the sentencing hearing, and the sentence does not result in the denial of fundamental justice. Accordingly, the Court will dispense with oral argument³ and affirm the sentence.

I

On October 24, 1990, appellant, while driving an automobile in the Fort Jackson district of Columbia, South Carolina, was stopped by a Military Police officer who spotted her driving erratically. As a result of the officer's investigation, Jacobs was charged in a five-count Information. On June 10, 1991, she appeared with Assistant Federal Public Defender Susan Z. Hitt in Columbia, South Carolina, and entered a plea of guilty to possession of marijuana in violation of 21 U.S.C. § 844, and driving under the influence, second offense ("second offense DUI"), in violation of South Carolina Code section 56-5-2930, assimilated by the Assimilative Crimes Act. The Government dismissed the remaining charges.

After conducting a sentencing hearing on January 27, 1992, the magistrate judge applied the guidelines promulgated by the United States Sentencing Commission ("the Guidelines") in determining the sentence to be imposed. Although the state statute pursuant to which Jacobs was sentenced requires a fine of at least $1,000, the magistrate judge, pursuant to the Guidelines, determined that Jacobs had no ability to pay and imposed no fine. Instead, he sentenced Jacobs to three years probation on the condition that Jacobs perform eighty hours of community service and participate in a program of drug testing and treatment, to be released from the program when determined suitable by the Probation Office. It is the magistrate judge's decision not to impose a fine that the Government appeals.

II

The standard of review for this appeal is governed by Rule 58(g)(2) of the Federal Rules of Criminal Procedure.⁴ Pursuant to Rule 58(g)(2)(D), a defendant who is convicted by a magistrate judge is not entitled to a trial de novo by a judge of the district court. Instead, the scope of the appeal is the same as an appeal from a judgment of the district court to the court of appeals. On an appeal from a magistrate judge to the district court, the record consists of "the original papers and exhibits in the case together with any transcript, tape, or other recording of the proceedings and a certified copy of the docket entries...." Fed.R.Crim.P. 58(g)(2)(C).

In support of its contention that the magistrate judge erred in deciding not to impose a fine, the Government first argues that in imposing sentences for violations of state law which are encompassed by the Assimilative Crimes Act, federal courts are bound by the minimum and maximum fines provided by the pertinent state statute. The Government then suggests, presumably as an alternative argument, that the magistrate judge erred in finding that Jacobs was unable to pay a fine. The magistrate judge based his decision to impose no fine on his interpretation of the Guidelines. The Court "reviews a question involving the legal interpretation of Guidelines terminology and the application of that terminology to a particular set of facts de novo, as a matter of law." United States v. Wessells, 936 F.2d 165, 168 (4th Cir.1991).

III

This case involves the interaction of the Guidelines with the Assimilative Crimes Act. The Guidelines, promulgated pursuant to the Sentencing Reform Act of 1984, are designed to achieve greater uniformity in the sentencing of federal crimes. United States v. Garcia, 893 F.2d 250, 253 (10th Cir.1989), cert. denied 494 U.S. 1070, 110 S.Ct. 1792, 108 L.Ed.2d 793 (1990). The Assimilative Crimes Act, which "fills in gaps in federal criminal law by providing a set of criminal laws for federal enclaves," is designed "to provide a method of punishing a crime committed on government enclaves in the way and to the extent that it would have been punishable if committed within the surrounding jurisdiction." Id.

The Guidelines' sentencing range for a state law crime encompassed by the Assimilative Crimes Act, however, often varies significantly from the sentencing range established by the underlying state statute. In such instances, the Guideline's policy of federal sentencing uniformity conflicts with the Assimilative Crimes Act's policy of intrastate sentencing uniformity. The Fourth Circuit has resolved this conflict by holding that "the `like punishment' requirement of the Assimilative Crimes Act mandates that the federal court sentences for assimilated crimes must fall within the minimum and maximum terms established by state law, and that within this range of discretion federal judges should apply the Sentencing Guidelines to the extent possible." United States v. Young, 916 F.2d 147, 150 (4th Cir.1990).

In determining this appeal, therefore, the Court must first ascertain the minimum fine established by state law for the offense at issue. Generally, South Carolina's circuit judges "may, in their discretion, suspend sentences imposed by them except in cases of felony upon such terms and upon such conditions as in their judgment may be fit and proper." S.C. Code Ann. § 17-25-100 (Law. Co-op.1976).⁵ Moreover, circuit judges may suspend felony sentences, except for crimes punishable by death or life imprisonment. Id. § 24-21-410 (Law. Co-op.1989). Thus in most instances, a sentence imposed pursuant to South Carolina statutes may be suspended.

The statute pursuant to which Jacobs was sentenced, however, clearly states that second offense DUI is punishable by either imprisonment or community service and "by a fine of not less than two thousand dollars nor more than five thousand dollars.... However, the fine imposed by this item may not be suspended in an amount less than one thousand dollars." Id. § 56-5-2940(2) (Law. Co-op.1991). At first glance, it might seem that this provision conflicts with the statutes allowing a circuit judge to suspend any sentence other than one for crimes punishable by death or life imprisonment.

Application of the traditional rules of statutory construction, however, resolves any perceived conflict. As noted by the Supreme Court, "a general statutory rule usually does not govern unless there is no more specific rule." Green v. Bock Laundry Mach. Co., 490 U.S. 504, 524, 109 S.Ct. 1981, 1992, 104 L.Ed.2d 557 (1989). Moreover, "a statute must, if possible, be construed in such fashion that every word has some operative effect." United States v. Nordic Village, Inc., ___ U.S. ___, ___, 112 S.Ct. 1011, 1015, 117 L.Ed.2d 181 (1992). Hence the general provision that circuit judges may suspend most sentences must give way to the more specific prohibition against imposing a fine of less than $1,000 upon a defendant convicted of second offense DUI. Moreover, ruling that section 17-25-100 permits a sentence of less than $1,000 in this case would render meaningless the prohibition against such suspensions embodied in section 56-5-2940(2). Ruling that section 17-25-100 does not apply in this case, on the other hand, simply recognizes that in certain situations, the South Carolina legislature has provided that the mandatory minimum sentence cannot be suspended.

The Court, therefore, finds that under South Carolina law, a defendant convicted of second offense DUI must be fined at least $1,000. Pursuant to the Assimilative Crimes Act and the Fourth Circuit's decision in Young, the magistrate judge should have imposed a fine of at least $1,000 upon Jacobs. The Court, therefore, finds that the magistrate judge erred in deciding to impose no fine upon Jacobs.

IV

The Court's finding that the magistrate judge erred, however, does not end the inquiry. At the sentencing hearing, the Government raised no objection to the sentence imposed upon Jacobs. In light of the Government's failure to object, the Court must affirm the sentence unless it finds plain error. See United States v. Fant, 974 F.2d 559, 565 (4th Cir.1992); United States v. Davis, 954 F.2d 182, 187 (4th Cir.1992); United States v. The Barge Shamrock, 635 F.2d 1108, 1111 (4th Cir.1980), cert. denied 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 107 (1981); Fed.R.Crim.P. 52. The Court, therefore, will overturn Jacobs' sentence only "if the error is `plain' and if a refusal to consider such would result in the denial of fundamental justice." Stewart v. Hall, 770 F.2d 1267, 1271 (4th Cir.1985). Accord Fant, 974 F.2d at 565; Davis, 954 F.2d at 187; Barge Shamrock, 635 F.2d at 1111.

The Fourth Circuit has not decided whether, in the absence of a contemporaneous objection by the Government, the imposition of a sentence which falls below the statutory minimum sentence is plain error requiring reversal. Other circuits, however, have addressed the issue and have reached conflicting conclusions. The First Circuit held that "the imposition of a term of imprisonment less than the minimum mandated by Congress affects ...