US v. Smith

• Decision Date: 04 January 1990
• Docket Number: Crim. A. No. 89-00139-R/C.
• Citation: 727 F. Supp. 1023
• Parties: UNITED STATES, Plaintiff, v. Readie Van SMITH, Defendant.
• Court: U.S. District Court — Western District of Virginia

727 F. Supp. 1023

UNITED STATES, Plaintiff, v. Readie Van SMITH, Defendant.

Crim. A. No. 89-00139-R/C.

United States District Court, W.D. Virginia, Charlottesville Division.

January 4, 1990.

Frederick T. Heblich, Jr., Charlottesville, Va., for defendant.

Ray Fitzgerald, Asst. U.S. Atty., Roanoke, Va., for plaintiff.

MEMORANDUM OPINION

MICHAEL, District Judge.

This case is currently before the court on the defendant's motion to dismiss the two-count indictment against him. On October 18, 1989, the defendant Readie Van Smith was charged with possession with intent to distribute more than 5 grams of "crack" cocaine, a violation of 21 U.S.C. § 841(a), and use of a firearm during the commission of a drug offense, a violation of 18 U.S.C. § 924(c). He now moves to have the indictment dismissed on two grounds. The first is that his Fifth Amendment Due Process rights have been violated by the United States Attorney's decision selectively to prosecute in federal court persons, such as the defendant, already charged in state courts for the sole purpose of taking advantage of the harsher penalties available in federal court. The second ground is that the Sentencing Guidelines violate his Due Process rights in that they give the prosecution an improper role in the sentencing decision. Both claims are based in large part on the decision in United States v. Roberts, 726 F.Supp. 1359 (D.D.C.1989). A motion in limine is also pending before the court; however decision on that motion has been held in abeyance pending production of further evidence and argument.

I

The defendant was arrested on the afternoon of September 30, 1989, in the City of Charlottesville, Virginia, by uniformed officers of the Charlottesville Police Department responding to a report of "shots fired." Upon arriving at an apartment complex on Michie Drive, the officers were directed to apartment 73 by a woman who appeared at the scene. While officers were investigating the open apartment, the defendant was spotted walking up to the unit. While being questioned by the officers, the defendant reached into his pocket and when he removed his hands a package, later found to contain crack cocaine, fell to the ground. The defendant was then taken into custody. A gun was found during a subsequent search of the attic area of the apartment. The defendant was charged with unlawful discharge of a firearm, Va. Code § 18.2-280, a Class I misdemeanor, and possession of cocaine with intent to distribute, Va.Code § 18.2-248, a felony. Arrest warrants were served on him later that evening at the Charlottesville/Albemarle Joint Security Complex.

On October 2, 1989, a bond hearing was held before the Charlottesville General District Court; bond was denied and a trial date for the firearm charge and a preliminary hearing date for the drug charge were set. After counsel was appointed, a second hearing was held and the defendant was released on bond and a later hearing date set. On October 18, 1989, the United States Attorney obtained the current federal indictment against Smith. When the November 2nd hearing date in state court arrived, the Commonwealth's Attorney obtained a nolle prosequi on the drug charge and Smith was tried and convicted on the gun charge, receiving a thirty day suspended sentence. On the same day, Smith was detained by Order of this court under the federal indictment. Counsel was appointed and, bond having been denied by the United States Magistrate, the defendant has remained in detention. Trial is currently scheduled for the early part of January, 1990.

II

There are two elements to the present motion. The first, for lack of a better term, the court will call the selective transfer claim; the second concerns more directly the prosecutor's role in sentencing under the Sentencing Guidelines (the "Guidelines").¹

As to the first claim, it is clear that the federal government has a right to prosecute a defendant in its own courts for conduct which may also be a crime under state law. See Abbate v. United States, 359 U.S. 187, 194, 79 S.Ct. 666, 670, 3 L.Ed.2d 729 (1959). It may also seek a federal indictment for such conduct after a prosecution has already commenced in state court or after a conviction has been obtained there. See Id. at 195-196, 79 S.Ct. at 670-71. Thus the transferring of the present defendant's prosecution from the Virginia courts to this court does not, by itself, impinge any Due Process rights.

This is not to say that such action might not be carried out in a manner that implicates the Fifth Amendment. Judge Greene concluded that just such an occurrence was taking place in the District of Columbia. Judge Greene was confronted with a repeated pattern of conduct by the U.S. Attorney for the District of Columbia which he felt created Due Process violations, including apparent attempts to use the transfer mechanism to avoid the requirements of the Speedy Trial Act, 18 U.S.C. § 3161(b). It was largely because of this conduct that Judge Greene felt compelled to dismiss the indictments against some of the defendants in Roberts.

Suffice it to say that this court has seen no similar conduct whatsoever on the part of the U.S. Attorney for the Western District of Virginia, or those serving under him. The single case presently before the court certainly does not resemble the cases in Roberts except for the fact of transfer. As noted supra, such a transfer, by itself, is perfectly acceptable. Also, because of the intermingling of jurisdictions in the court systems of the District of Columbia, Judge Greene was faced with what may be a unique situation of limited applicability elsewhere.

In light of the foregoing, so much of the defendant's motion will be denied as alleges a violation of his Due Process rights arising from the transfer of this prosecution from state to federal court. Finding no impropriety in the securing of the present indictment the court will also deny that part of the motion which seeks a dismissal of the indictment. The court must now address the second issue raised by the motion.

At the outset it is important to examine what is not at issue in this case. The present motion does not address the propriety of the Guidelines under the nondelegation doctrine or the separation of powers principle of the Constitution; those claims were addressed and found lacking by the Supreme Court in Mistretta v. United States, ___ U.S. ___, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Nor does the defendant argue that he has a Fifth Amendment Due Process right to individualized sentencing; that argument, as well, has been held invalid by all of the Courts of Appeals which have ruled on the question. United States v. Bolding, 876 F.2d 21, 22-23 (4th Cir.1989); United States v. Allen, 873 F.2d 963, 965-966 (6th Cir.1989); United States v. Seluk, 873 F.2d 15, 16-17 (1st Cir.1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989); United States v. Vizcaino, 870 F.2d 52, 56 (2nd Cir.1989); United States v. White, 869 F.2d 822, 825 (5th Cir.1989); United States v. Frank, 864 F.2d 992, 1008-1010 (3rd Cir.1988).²

The issue raised in this motion, as the court sees it, and by Judge Greene in Roberts, is whether, in light of the way the Guidelines operate, a constitutionally impermissible amount of authority over sentencing is vested in the prosecution. A few further clarifications in the thesis may also be necessary. First, this motion raises a Due Process challenge and not a reincarnation of the separation of powers argument.³ Secondly, the Due Process argument is not based on the executive branch's appointment and removal power over the Sentencing Commissioners, see Vizcaino, 870 F.2d at 57 (holding that such appointment and removal power does not violate Due Process requirements), but instead on the power of the United States Attorneys and their subordinates to control the sentence that a particular defendant actually receives.

The dominant purpose of the passage of the Sentencing Reform Act of 1984 was substantially to reduce, if not eliminate, the disparity that was perceived to exist between sentences issued by different federal judges for substantially similar offenses. While this court may question the wisdom of the approach taken by the Act, and the United States Sentencing Commission pursuant to the Act, it does not quarrel with the underlying assumption that Congress can reduce or eliminate the discretion of federal judges in sentencing. See Lockett v. Ohio, 438 U.S. 586, 603-604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978); White, 869 F.2d at 825. Thus Congress, through the Sentencing Commission, may, as it has, reduce the act of sentencing to what amounts to an exercise in button pushing; the question is whether the Fifth Amendment requires that those buttons be pushed by a federal judge and not by a United States Attorney.

Sentencing under the Guidelines

There are two factors which determine the ultimate sentence that a particular defendant will get under the present system. The first is the actual charge which is brought against the defendant, the second is the "higher mathematics" of the Guidelines. See, Clarke, Ruminations on Restrepo, 2 Fed.Sent.R. 135, 136 (1989). While a judge's discretion is constrained under the labyrinthine Guidelines (by statute, the high end of the range within which the judge must work may not exceed the low end by more than 25% or six months⁴), what discretion remains is freely exercised by the judge without influence by any other party. However, the range within which the judge may work is controlled entirely by the first factor noted above, the charge which the United States decides to bring, as well as what evidence is introduced in the computation of offence level and criminal history category. These latter items are entirely beyond the judge's reach.

Federal judges have never had, and the Fifth Amendment certainly does not require that they have, any control whatsoever over the...