Federal Sentencing Guidelines - Deborah R. Jordan

• Publication year: 1997

Federal Sentencing Guidelinesby Deborah R. Jordan^*

The rule of law governing sentencing in the federal courts is becoming more and more of an intellectual exercise; one that may be interesting to the academics, but is confusing and frustrating to the individuals affected by the process. A review of the decisions issued in 1996 by the Court of Appeals for the Eleventh Circuit, as well as those of the United States Supreme Court, confirms this trend to intellectualize the sentencing process.

Most people who are confronted by the criminal justice system have strong emotions attached to the experience. Crime victims have suffered unjustly and want to see someone pay for their suffering. They want to be made whole. The defendants have been accused of doing something reprehensible, have been arrested and forced into court, have had to deal with attorneys, and have suffered the ruination of their families and normal lives. Given the emotional nature of the experience for the nonprofessionals involved in the sentencing, it is not far-fetched to conclude that these people are not pleased with intellectual answers to their questions. For example, only an academician could be satisfied with the explanation that the quantity of LSD involved in the case is considered to be one weight for purposes of determining the sentencing guideline range, but is a different weight for purposes of determining the minimum mandatory sentence that may trump the guidelines.

The intellectual aspects of sentencing require the sentencing participants to follow two sets of competing rules at the same time, to pretend that sentencing is both uniform and uniformly individualized, and to negotiate agreements that could be undermined by the third-party probation officer that prepares the presentence report. This Article reviews the Eleventh Circuit and Supreme Court sentencing guideline decisions of 1996. The decisions that support the above thesis are discussed first, followed by a review of the other significant decisions of the year.

I. Dual Rules

Both the Supreme Court and the Eleventh Circuit decided cases in 1996 in which they distinguished between the law applicable to sentencing guideline determinations and the law applicable to other sentencing statutes. In Neal v. United States,¹ the Supreme Court held that the 1993 amendment to the United States Sentencing Guidelines that created a per-dose method for calculating the weight of LSD is applicable only to determining the weight for application of the sentencing guidelines.² The per-dose method is not applicable to determine the weight of LSD for application of a statutory mandatory minimum sentence.³

Also on the subject of the interplay between mandatory minimum sentences and the sentencing guidelines, the Supreme Court decided Melendez v. United States.⁴ Melendez pleaded guilty to a drug charge and cooperated with the government in exchange for the government's filing of a section 5K1.1⁵ motion for downward departure from the sentencing guideline range based on the defendant's substantial assistance to the government. Melendez faced a statutory mandatory minimum sentence of ten years and a sentencing guideline range of 135 to 168 months. As promised, the government moved for a downward departure from the sentencing guideline range based on the defendant's assistance. The motion cited section 5K1.1 but did not cite 18 U.S.C. Sec. 3553(e), which permits a sentence below the mandatory minimum on motion by the government based on substantial assistance of the defendant. The trial court sentenced Melendez to the mandatory minimum of ten years imprisonment.⁶

The Supreme Court rejected Melendez's argument that section 5K1.1 created a "unitary" motion system based upon the substantial assistance of the defendant. The Court held that section 5K1.1 governed departures from the guideline range and provided guidance for determining the sentence below the mandatory minimum sentence once a motion pursuant to section 3553(e) was filed.⁷ Section 5K1.1, however, does not authorize a sentence below the mandatory minimum unless the government specifically moves for that pursuant to 18 U.S.C. Sec. 3553(e), and not just for a downward departure pursuant to section 5K1.1.⁸

Melendez teaches two lessons. The general lesson is once again that attorneys must be alert at all times to the interplay between non-guideline law and guideline law. The more specific lesson is that attorneys must negotiate for plea agreements involving the defendant's cooperation with the government with the full understanding of whether the promised reward will be a motion for departure under 5K1.1 alone, or will also cite 18 U.S.C. Sec. 3553(e).

Similarly, but on a completely different subject, the Eleventh Circuit held in United States v. Mikell⁹ that a defendant who is subject to a statutory sentence enhancement under 21 U.S.C. Sec. 841 may challenge the constitutionality of an earlier conviction that is the basis for the enhancement. Mikell had alleged that his counsel on his earlier conviction had a conflict of interest because he represented both Mikell and a codefendant. Mikell claimed that he was denied the effective assistance of counsel as a result of counsel's conflict. However, the district court refused to permit the collateral attack in reliance on United States v. Roman.¹⁰ In Roman, the Eleventh Circuit had ruled en banc that for purposes of determining a defendant's criminal history category under the sentencing guidelines, a prior state conviction may not be attacked as unconstitutional unless the defendant alleges that his state conviction was wholly uncounseled.¹¹ On appeal, the panel in Mikell held that Roman did not affect the statutory system imposed by 21 U.S.C. Sec. 851, which allows constitutional attacks on prior convictions used as a basis for sentence enhancement under section 841.¹²

The decisions in Melendez, Neal, and Mikell point out the imperative for attorneys: Be aware at all times of the dual rules governing sentencing in federal court. Attorneys must be mindful of the rules governing sentencing under the guidelines, as well as the rules governing sentencing under statutes apart from the guidelines.

II. Sentencing That is Uniform in its Individualization

The Supreme Court set the standard of review for sentencing departures in Koon v. United States.¹³ In that case, the Supreme Court reviewed the sentences of the detectives that were acquitted in state court, and then convicted in federal court, in connection with the car chase and videotaped beating of Rodney King.¹⁴ The Court held for the first time that departures should be reviewed for an abuse of discretion.¹⁵ The Court explained that the wrong determination of a question of law is an abuse of discretion.¹⁶ The question of whether a factor is a proper one upon which to base a departure is a question of law.¹⁷ The Court in Koon found that the trial court had abused its discretion in part.¹⁸ This decision was better for defendants than the Ninth Circuit's de novo ruling had been. The Ninth Circuit had rejected the departure completely.¹⁹

The trial court sentenced Stacy Koon and Laurence Powell each to thirty months. That sentence was derived after the court departed eight levels from the original range of seventy to eighty-seven months. The court departed five levels because '"the victim's wrongful conduct contributed significantly to provoking the offense behavior.'"²⁰ Then the court departed another three levels based on a combination of four factors: (1) the defendants would most likely be targets of abuse in prison; (2) the defendants would not only lose their positions as police officers, but would have significant employment consequences in the field of law enforcement; (3) the defendants had been subjected to successive state and federal prosecutions; and (4) the defendants were nonviolent, not dangerous, and unlikely to engage in future criminal conduct.²¹

The Ninth Circuit conducted a de novo review of "whether the district court had authority to depart," and rejected the departure completely.²²

The Supreme Court's decision in Koon attempted to maintain the illusion that the sentencing guidelines actually result in consistent and uniform sentencing practices from case to case across the country. The good news from Koon is that the Supreme Court affirmed the trial court's discretion to depart from the guideline range, and limited appellate courts to a review for abuse of discretion. As pointed out in Koon, the guidelines offer specific considerations that should be bases for departure in the unusual case, other considerations that should not be bases for departure except in the extraordinary case, and some factors that may never be considered bases for departure. As to the remaining factors that counsel may conceive, the guidelines are silent, meaning that if the factor puts the case outside the "heartland" of cases for that offense, it may be a basis for departure.²³

Prior to the Supreme Court's decision in Koon, the Eleventh Circuit employed a three-step review of departures. First, the Eleventh Circuit reviewed de novo the question of whether the proffered basis was a proper ground for departure, then the court reviewed the factual support for the departure for clear error, and finally the court reviewed the extent of the departure for reasonableness.²⁴ The court decided several departure cases in 1996 based on pre-Koon law.²⁵

Since Koon, the Eleventh Circuit has affirmed a departure based on a factor encouraged by the guidelines. The conviction in United States

v. Bernal²⁶ was for exporting a gorilla and an orangutan from the United States to Mexico. Defendants were conservationists whose purpose in exporting the animals was for breeding and exhibition. The district court departed downward pursuant to section 5K2.11 because the conduct of defendants did not "cause or threaten the harm or evil sought to be prevented by the law...