TABLE OF CONTENTS
TABLE OF AUTHORITIES iv
JURISDICTION 1
ISSUE PRESENTED vi
STATUTES AND REGULATIONS vii
STATEMENT OF THE CASE 1
FACTS 3
A.The Offense 3
B.Defendant's Assistance to Authorities 4
C.The Sentencing 5
D.The First Appeal 7
E.The § 2255 Motion 8
SUMMARY OF ARGUMENT 9
DISCUSSION 10
DEFENDANT'S COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE VALIDITY OF U.S.S.G. § 5K1.1, P.S., WHICH IS INVALID BECAUSE IN 28 U.S.C. § 994(n) CONGRESS MANDATED A GUIDELINE, NOT A POLICY STATEMENT, DEALING WITH A DEFENDANT'S SUBSTANTIAL ASSISTANCE TO AUTHORITIES 10
I.THE STANDARDS FOR INEFFECTIVE ASSISTANCE OF COUNSEL 10
A.The Representation 11
B.The Prejudice 12
II.THE VALIDITY OF § 5K1.1 13
A.Consideration By This Court 13
B.There Are Important Differences Between Sentencing Guidelines and Policy Statements 16
C.Congress, in the Anti-Drug Abuse Act of 1986, Specifically Directed the Sentencing Commission to Promulgate a Sentencing Guideline to Address the Situation Where a Defendant has Substantially Assisted Law Enforcement Authorities 22
D.The Sentencing Commission's Promulgation of U.S.S.G. § 5K1.1, p.s., Does Not Comply With the Congressional Mandate in the Anti-Drug Abuse Act of 1986 24
CONCLUSION 27
CERTIFICATE AS TO LENGTH OF BRIEF 27
CERTIFICATE OF SERVICE 28
TABLE OF AUTHORITIES
CASES
Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410, 414 (1992) 20
Kimmelman v. Morrison,
477 U.S. 365 (1986) . . . . . . . . . . . . . . . . . . . 10
SEC v. Chenery Corp.,
318 U.S. 80, 94 (1943) 26
*Stinson v. United States,
113 S. Ct. 1913 (1993) . . . . . . . . . . . . . . . . . 19
Strickland v. Washington,
466 U.S. 668 (1994) . . . . . . . . . . . . . . . . . . 8, 10, 11
United States v. Barbour,
813 F.2d 1232 (D.C. Cir. 1987) . . . . . . . . . . . . . 10
United States v. Beckham,
968 F.2d 47 (D.C. Cir. 1992) . . . . . . . . . . . . . . 16
United States v. Xxxxxx,
990 F.2d 1314 (D.C. Cir. 1993) 7, 8, 14
United States v. Doe,
934 F.2d 353 (D.C. Cir.),
cert. denied, 112 S. Ct. 268 (1991) 11, 13, 14
United States v. Headley,
923 F.2d 1079 (3d Cir. 1991) . . . . . . . . . . . . . . 12
*United States v. Hooker,
993 F.2d 898 (D.C. Cir. 1993) . . . . . . . . . . . . . . 21
United States v. Ortez,
902 F.2d 61 (D.C. Cir. 1990) 11, 13
*United States v. Price,
990 F.2d 1367 (D.C. Cir. 1993) . . . . . . . . . . . . . 26
Wade v. United States,
112 S. Ct. 1840 (1992) . . . . . . . . . . . . . . . . . 15
*Williams v. United States,
112 S. Ct. 1112 (1992) 16, 19, 20, 21
STATUTES AND FEDERAL RULE
18 U.S.C. § 3553 15, 18, 19, 23, 26, 27
18 U.S.C. § 3742 25
21 U.S.C. § 841 2
21 U.S.C. § 841 2, 6
21 U.S.C. § 846 2
28 U.S.C. § 994(n) 8, 9, 10, 13, 16, 17, 18, 20, 24, 25, 26
28 U.S.C. § 1291 1
28 U.S.C. § 2255 1, 8
Fed. R. App. P. 4(b) . . . . . . . . . . . . . . . . . . . . . 1
SENTENCING GUIDELINES
U.S.S.G. § 1B1 25
U.S.S.G. § 2D1.1 5
U.S.S.G. § 3B1 25
U.S.S.G. § 3E1 6
U.S.S.G. § 5K.1, p.s passim
U.S.S.G. § 4A1 19
U.S.S.G. § 4B1 20, 25
MISCELLANEOUS
Violent Crime Control and Law Enforcement Act of 1994,
§ 80001, 140 Cong. Rec. H-8772, 8823
(daily ed. Aug. 21, 1994) 23
Jonathan D. Lupkin, Note, 5K1.1 and Substantial
Assistance Departure: The Illusory Carrot
of the Federal Sentencing Guidelines,
91 Colum. L. Rev. 1519, 1528-34 (1991) 18
2 T. Hutchison & D. Yellen,
Federal Sentencing Law and Practice
App. 11, at 485-86 (1989) 19
ISSUE PRESENTED
Whether the district court erred in finding that defendant's attorney was not ineffective when defendant's attorney failed to challenge the validity of U.S.S.G. § 5K1.1, p.s., even though a challenge to that provision was the only way for defendant to obtain a downward departure from his guideline sentencing range.
STATUTES AND REGULATIONS
The pertinent statutes and regulations appear in the addendum to this brief.
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 94-3008
BRIEF OF APPELLANT
UNITED STATES OF AMERICA,Plaintiff-Appellee,
v.
KEVIN M. Xxxxxx, Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
The district court had jurisdiction of this case under 28 U.S.C. § 2255. Defendant having filed a notice of appeal within the time period of Fed. R. App. P. 4(a), this Court has jurisdiction of the case under 28 U.S.C. §§ 1291 and 2255.
On September 11, 1990, defendant-appellant, Kevin Xxxxxx, was
charged in a five-count indictment with codefendants Quand Xxxxxx
and Christopher Hicks. The charges all involved drug offenses. In
particular, defendant was charged with conspiracy to distribute
more than 50 grams of cocaine base, in violation of 21 U.S.C. §§
846, 841(a), (b)(1)(A)(iii), and with distributing more than 50
grams of cocaine base, in violation of 21 U.S.C. § 841(a),
(b)(1)(A)(iii). (APP 1).
A superseding indictment, filed October 11, 1990, charged defendant, Xxxxxx, Hicks, and a new defendant, Thaxton Young, with drug distribution offenses. Counts One through Five were the same as in the original indictment, except Young was also named as a defendant. Count Six charged defendant and Xxxxxx with distributing more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a), (b)(1)(A)(iii), and Count Seven charged defendant alone with distributing more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a), (b)(1)(A)(iii). (APP 4).
Defendant pleaded guilty to count one of this superseding indictment on October 31, 1990. (PSR ¶ 3.) Xxxxxx pleaded guilty to count six of this superseding indictment on October 31, 1990. A second superseding indictment charged Hicks alone with two drug distribution offenses, conspiracy to distribute, and to possess with intent to distribute, more than 50 grams of cocaine base, and distribution of more than 50 grams of cocaine base. The government dismissed this superseding indictment on February 8, 1991. (PSR ¶ 4.)
Another indictment charged Young alone with two drug distribution offenses, conspiracy to distribute, and to possess with intent to distribute, more than 50 grams of cocaine base, and distribution of more than 50 grams of cocaine base. (PSR ¶ 5.) Young was acquitted of these charges. (See T1 at 14, APP 26).
Agents of the Drug Enforcement Administration began an investigation into drug trafficking at the Tyler House Apartments, located at 1200 North Capitol Street, Washington, D.C., at the request of the management of that complex. On June 8, 1990, an undercover DEA agent purchased cocaine base from codefendant Xxxxxx in the stairway of the complex. The undercover agent again purchased cocaine base from Xxxxxx on June 21, 1990 at the (PSR ¶¶ 8-10.)
On August 1, 1990, the undercover agent purchased an ounce of cocaine base from Xxxxxx. Although the purchase initially was to have taken place at the complex, when the undercover DEA agent (who was accompanied by a second undercover DEA agent) arrived to complete the purchase, Xxxxxx said the purchase would be completed elsewhere. They drove to another location, where Xxxxxx paged his source, and shortly thereafter a vehicle driven by codefendant Young arrived. Xxxxxx went to the vehicle and returned with cocaine base, for which the undercover agents gave him $1,200. (PSR ¶ 11.)
On August 13, 1990, the undercover DEA agent arranged a meeting with Xxxxxx to be held in the 1400 block of Rhode Island Avenue. The purpose of the meeting was to complete a purchase of two ounces of cocaine. When Xxxxxx arrived at the meeting place, he told the agent that he needed to page someone and then placed a telephone call. Shortly thereafter, a vehicle driven by defendant arrived. Xxxxxx got in defendant's vehicle and then went over to the undercover agent with two bags of cocaine base. The agent gave an arrest signal, and Xxxxxx and defendant were arrested. (PSR ¶ 12.)
B.Defendant's Assistance to Authorities
When arrested, defendant agreed to speak with DEA agents and executed a waiver of rights form. Defendant informed the agents that he had additional cocaine base stored at a specified location and identified codefendant Xxxxxx as the supplier of that cocaine base. DEA agents later seized nearly 800 grams of cocaine base at the specified location. (PSR ¶¶ 14, 17.)
Defendant agreed to make a monitored and recorded telephone call to Xxxxxx. During that call, made shortly after his arrest, defendant arranged for the purchase of a kilogram of cocaine base to take place the next day, August 14. A subsequent telephone conversation concerning the sale was, with defendant's consent, monitored and recorded. (PSR ¶ 15.)
Further investigation by DEA indicated that Xxxxxx and Young obtained their cocaine base from Anthony Hassan. The investigation also disclosed that the two ounces of cocaine base that were involved in the August 13 transaction, as well as the nearly 800 grams seized at the storage location identified by defendant, had been "fronted" to defendant by Xxxxxx. (PSR ¶ 16.)
During the time when defendant was cooperating with DEA, he was placed in the witness protection program because of threats directed at him. Defendant's family subsequently was threatened. When his family declined to enter the witness protection program, defendant was faced with the choice of testifying against his codefendants and exposing his family to danger, or declining to testify against his codefendants. Defendant took the latter course of action. (DSM ¶ 1, APP 10; T1 at 10, APP 22, T2 at 7, APP 41.)
Young went to trial and was acquitted. The district court inquired at sentencing whether the government was claiming that Young's acquittal was due to defendant's failure to testify. The government responded that defendant's refusal "weakened considerably" the government's case but "would not go so far as to say we lost the case" because defendant did not testify. (T1 at 14, APP 26.) The government dismissed the case against Xxxxxx and indicated at defendant's sentencing that it did so because defendant declined to testify against Xxxxxx. (T2 at 12, APP 46.)
The presentence report indicated that U.S.S.G. § 2D1.1 was the applicable offense guideline and that defendant's offense level under that guideline was 36. (PSR ¶ 22.) The presentence report deducted two levels for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense level of 34. (PSR ¶¶ 21, 28.) The presentence report also indicated that the defendant was in criminal history category I. (PSR ¶ 31.)
The district court held two sentencing hearings. At the second hearing, the district court, without objection from defendant or the government, determined the total offense level to be 34 and defendant's criminal history category to be I. (Judgment at 4, APP 53.) Offense level 34, criminal history category I, yielded a guideline sentencing range of 151-188 months. (U.S.S.G. Ch. 5, Pt. A (sentencing table); see Judgment at 4, APP 53; PSR ¶ 35.)
Defendant asked the district court to depart downward to a term of imprisonment of 120 months, the minimum term mandated by 21 U.S.C. § 841(b)(1)(A)(iii). (DSM ¶ 2, APP 10; T2 at 6-7, APP 40-41.) Defendant argued that "the peculiar circumstances of his refusal to testify being based on a justifiable concern for the safety of his family is exactly the type of mitigating circumstance not adequately considered by the Sentencing Commission in formulating the sentencing guidelines . . . ." (DSM ¶ 2, APP 10.) The basis for the departure was U.S.S.G. § 5K2.0, p.s. (DSM ¶ 2, APP 10; see T2 at 9, APP 43.)
The district court declined to depart, finding that it lacked authority to do so.
I do not believe I can depart under the section that you have recommended. It was in your memorandum in aid of sentencing, and I have reviewed it, and I have reviewed the guidelines, and I just disagree that I have the ability under that to depart.
(T2 at 13, APP 47.) The court also stated that, "if I had any discretion in this matter, he would not nearly be sentenced to what he must be sentenced to today." (T2 at 13, APP 47.)
The district court then sentenced defendant to a term of imprisonment of 151 months, followed by a five-year term of supervised release, and a $50 special assessment. (Judgment, APP 51-53; T2 at 13-14, APP 47-48.)
Defendant appealed from the original sentencing, raising various challenges to the validity of U.S.S.G. § 5K1.1, p.s., the policy statement dealing with a defendant's substantial assistance to the government. United States v. Xxxxxx, 990 F.2d 1314 (D.C. Cir. 1993). This court reviewed all the claims under the plain error standard, because defendant had not raised any of the claims before the district court. Id. at 1316. This court found that the district court did not plainly err in questioning the validity of § 5K1.1, and affirmed the sentence. Id. at 1317.
In a concurring opinion, Judge Edwards stated that appellant had raised "troubling questions . . . concerning the validity of policy statement 5K1.1." Id. at 1319. Judge Edwards felt that there was an "issue of serious concern regarding the validity of policy statement 5K1.1." Id. at 1317. He agreed, however, with the majority that the case did not meet the test for reversal under plain error, where the district court had not been "given a full and fair opportunity to rule on the issue." Id. at 1319.
After this court affirmed his sentence on direct appeal, defendant filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, and correct his sentence. Defendant claimed that his trial counsel was ineffective because he failed to challenge the validity of § 5K1.1, even though that was the only way defendant could have hoped to obtain a downward departure from his guidelines sentence, given the district court's statements that it felt it could not depart because § 5K1.1 covered defendant's situation.
The § 2255 motion included a declaration from defendant's trial counsel. Counsel stated he never "considered, investigated, or researched the distinction made in . . . 28 U.S.C. § 994(a) between guidelines and policy statements." (APP 61). He further stated that he "never considered whether the Commission violated the mandate of 28 U.S.C. § 994(n) by promulgating a policy statement instead of a guideline." (APP 61).
The district court denied the § 2255 petition without a hearing. After reviewing the facts the district court concluded:
Ineffective assistance has been rendered when counsel's representation fell below an objective standard of reasonableness. Id. at 694. [Referring to Strickland v. Washington, 466 U.S. 668 (1994).] Defendant essentially argues that sentencing counsel's failure to raise at sentencing what an appellate judge subsequently deemed a "troubling question" rises to the level of constitutionally ineffective assistance. Defendant has not demonstrated that, at the time of the sentencing, the failure to challenge § 5K1.1 was objectively unreasonable within the meaning of Strickland. (APP 63).
The appeal of the denial of the § 2255 petition is now before this court.
Defendant's trial counsel made no challenge to the validity of U.S.S.G. § 5K.1, p.s. In failing to do so, he abandoned the only hope defendant had of obtaining a downward departure from his sentence. Defense counsel's conduct was below the standard required under the Sixth Amendment.
Congress, in 28 U.S.C. § 994(n), directed the Sentencing Commission to "assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." (Emphasis added). In response, the Sentencing Commission has promulgated, not a guideline, but a policy statement, entitled "Substantial Assistance to Authorities." Because the Commission did not comply with the Congressional mandate, § 5K1.1, p.s., is invalid.
DEFENDANT'S COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE VALIDITY OF U.S.S.G. § 5K1.1, P.S., WHICH IS INVALID BECAUSE IN 28 U.S.C. § 994(n) CONGRESS MANDATED A GUIDELINE, NOT A POLICY STATEMENT, DEALING WITH A DEFENDANT'S SUBSTANTIAL ASSISTANCE TO AUTHORITIES
I.THE STANDARDS FOR INEFFECTIVE ASSISTANCE OF COUNSEL
The Supreme Court has stated "that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684 (1984) (citing Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), and Gideon v. Wainwright, 372 U.S. 335 (1963)). The Court has emphasized that "the right to counsel is the right to the effective assistance of counsel." Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)).
Ineffective assistance has been rendered when 1) counsel's representation fell below an objective standard of reasonableness; and 2) there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. 694; Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Counsel's performance is deficient if it does not rise to the level of reasonably effective assistance. Id. at 687. A court measures the reasonableness of counsel's performance against prevailing professional norms. United States v. Barbour, 813 F.2d 1232, 1234 (D.C. Cir. 1987). Counsel has a duty to act "on behalf of his client's best interests." Id. A satisfactory showing of prejudice need only rise to the level of a reasonable probability that the result of the proceeding would have been different but for counsel's deficient representation. Strickland, 466 U.S. at 694. On a scale of evidentiary burdens, a reasonable probability is shown by less than a preponderance of the evidence. Id. at 693-694.
In the present case, given the government's refusal to file a § 5K1.1 motion, there was only one means for obtaining a downward departure for the defendant's cooperation - to find an argument that § 5K1.1 was invalid. Yet trial counsel made no attempt to challenge the validity of § 5K1.1 in any way. As stated in his declaration which was attached to the § 2255 motion, he never considered, researched, or investigated the issue that the statute requires a guideline, not a policy statement.
Given that the government did not file a motion, and the district court found that § 5K1.1 covered the situation, thus providing the only possibility of departure, any effective lawyer would have known that a challenge to § 5K1.1 was crucial. Indeed, before the sentencing in this case, this court had already decided two cases dealing with the validity of § 5K1.1., United States v. Doe, 934 F.2d 353 (D.C. Cir.), cert. denied, 112 S.Ct. 268 (1991), and United States v. Ortez, 902 F.2d 61 (D.C. Cir. 1990). This demonstrates that effective defense lawyers were looking for any possible ground to challenge § 5K1.1, because of the absolute bar it puts on a departure for cooperation absent a government motion.
To not even consider, never mind not raise, the issue clearly falls below the standard of reasonably effective counsel. In United States v. Headley, 923 F.2d 1079 (3d Cir. 1991), the court found that a defense lawyer who had failed to request a downward mitigating role adjustment had rendered ineffective assistance of counsel. The court stated, in a passage equally applicable to the present case:
There is no rational basis to believe that . . . trial counsel's failure to argue adjustment was a strategic choice. Clearly it falls outside the prevailing professional norms.
Id. at 1084.
There could be no strategic reason in the present case to fail to challenge the validity of § 5K1.1. In fact, a challenge to § 5K1.1 was the only hope in the case, yet counsel did nothing in that regard. This failure, just as in Headley, clearly falls outside prevailing professional norms.
Defendant must also show that it is reasonably likely that the outcome of the sentencing would have been different had counsel questioned the validity of § 5K1.1. This appears to involve a two-part analysis of: 1) determining whether § 5K1.1 is invalid, and then, 2) if it is, determining whether the district court would have departed downward from the guidelines range.
The answer to the second part of the question is fairly easy. The district court stated at the time of the sentencing that, "if I had any discretion in this matter, [the defendant] would not nearly be sentenced to what he must be sentenced to today." Thus, the prejudice inquiry hinges on the validity of § 5K1.1.
This court has twice considered § 5K1.1, p.s. In the first case, United States v. Ortez, 902 F.2d 61 (D.C. Cir. 1990), the defendant appealed the district court's failure to depart downward for his "cooperation with the government." Id. at 63. This court held that the district court lacked authority to depart, citing "the plain language of § 5K1.1." Id. at 64. This court assumed, without discussion, that the government motion provision was binding in all circumstances.
This court also held in Ortez that § 5K1.1, p.s., "construed to allow downward departures for substantial assistance only upon government motion," is not contrary to 28 U.S.C. § 994(n) or unconstitutional. Id. However, because the defendant had not raised his objections to the government motion provision in the district court, this court applied a plain error test in evaluating whether § 5K1.1, p.s., contravened 28 U.S.C. § 994(n) or the Constitution. Id.
In United States v. Doe, 934 F.2d 353 (D.C. Cir.), cert. denied, 112 S.Ct. 268 (1991), the defendant argued that "section 5K1.1, which requires a government motion before a court may consider a defendant's assistance, conflicts with section 994(n), in which Congress express no intention to so limit consideration of assistance." 934 F.2d at 359. The defendant also argued that § 5K1.1, p.s., violated liberty interests created by the due process clause of the Constitution and by 28 U.S.C. § 994(n).
This court in Doe analyzed 28 U.S.C. § 994(n) in administrative law terms -- whether the government motion requirement "is a reasonable and permissible construction of section 994(n)" by an agency "to which Congress expressly delegated rulemaking authority." 934 F.2d at 359. This court concluded that:
We can find no fault with the Commission's exercise of its delegated authority in this instance. The fact that Congress itself drafted a substantial assistance provision containing a government motion requirement -- located, as it so happens, immediately prior to section 994(n) in the original legislation -- precludes any doubts as to the reasonableness of the Commission's inclusion of such a requirement in section 5K1.1.
Id. This court also rejected claims that the government motion provision violates liberty interests arising from the due process clause of the Constitution or from 28 U.S.C. § 994(n). Id. at 356-58, 360-61.
In the present case, defendant does not contend that 28 U.S.C. § 994(n) itself precludes the Sentencing Commission from including the government motion provision in U.S.S.G. § 5K1.1, p.s. Defendant also does not contend that the government motion provision violates liberty interests arising from the due process clause of the Constitution or from 28 U.S.C. § 994(n).
Defendant instead raises issues about § 5K1.1, p.s., that neither this court nor the Supreme Court has addressed. See United States v. Xxxxxx, 990 F.2d at 1319 (Edwards, J., concurring). The Supreme Court considered § 5K1.1, p.s., in the context of a challenge to the government's exercise of discretion not to file a motion asking for a downward departure for substantial assistance. Wade v. United States, 112 S.Ct. 1840 (1992). The defendant in Wade had been convicted of three drug trafficking offenses, one of which carried a ten-year mandatory minimum, and of carrying a firearm during and in relation to a drug offense, which required a consecutive five-year sentence.
The defendant in Wade sought a downward departure because of his assistance to the government, but the district court declined to depart because the government had not filed a motion. In the Supreme Court, both the defendant and the government assumed that 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, p.s., "pose identical and equally burdensome obstacles." Wade, 112 S.Ct. at 1841. In addition, the defendant conceded that 18 U.S.C. § 3553(e) requires a government motion in order for the district court to depart, "and he [did] not argue otherwise with respect to § 5K1.1." Id. at 1843. The defendant did not challenge the constitutionality of the government motion requirement. Id. The Court concluded that the government has "a power, not a duty, to file a motion when a defendant has substantially assisted." Id. at 1843. The Court also held that "federal district courts have authority to review a prosecutor's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive." Id. at 1843-44.
In the present cases, defendant challenges the government motion provision for failing to comply with the Congressional mandate that "the Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed" if a defendant has provided substantial assistance to authorities. 28 U.S.C. § 994(n). (Emphasis added). Because § 5K1.1, p.s., is merely a policy statement, not a guideline, the Commission has not complied with the Congressional mandate and § 5K1.1, p.s., is invalid.
B.There Are Important Differences Between Sentencing Guidelines and Policy Statements.
The Sentencing Reform Act of 1984 distinguishes between
sentencing guidelines and "general policy statements." See
Williams v. United States, 112 S.Ct. 1112, 1125 (1992) (White and
Kennedy, J.J. dissenting) ("Congress has clearly distinguished
between guidelines and policy statements"); id. at 1119 (agreeing
that sentencing guidelines are different from policy statements,
but stating that "to say that guidelines are distinct from policy
statements is not to say that their meaning is unaffected by policy
statements"). See also United States v. Beckham, 968 F.2d 47
(D.C. Cir. 1992) ("§ 4A1.3 is technically a `policy statement'
rather than a `guideline'"). The Act authorized the Commission to
issue sentencing guidelines "for use of a sentencing court in
determining the sentence to be imposed in a criminal case . . . ."
28 U.S.C. § 994(a)(1) (enacted by Sentencing Reform Act of 1984,
Pub. L. No. 98-473, § 217(a), 98 Stat. 2019). The Act also
authorized the Commission to issue "general policy statements
regarding application of the guidelines or any other aspect of
sentencing or sentence implementation that in the view of the
Commission would further the purposes" of sentencing. 28 U.S.C. §
994(a)(2) (enacted by Sentencing Reform Act of 1984, Pub. L. No.
98-473, § 217(a), 98 Stat. 2019).
The Sentencing Reform Act of 1984 did not expressly authorize the Commission to promulgate commentary, but the Commission labeled portions of the initial Guidelines Manual as commentary. Congress subsequently recognized the legitimacy of commentary. See Sentencing Act of 1987, § 3, 101 Stat. 1266 (amending 18 U.S.C. § 3553(b)).
A sentencing guideline is not the equivalent of a general policy statement. Sentencing guidelines differ from general policy statements in manner of promulgation, purpose, and effect. Sentencing guidelines, and amendments to sentencing guidelines, must be promulgated before May 1 and they cannot take effect unless Congress has at least six months to review them. 28 U.S.C. § 994(p). In addition, the Commission must send Congress a statement of the reasons for its action. Id. Policy statements, and amendments to policy statements, on the other hand, need not be submitted to Congress. "Unlike guidelines, policy statements are not subject to the May 1 statutory deadline for submission to Congress . . . ." U.S.S.G. Ch. 7, Pt. A(3)(a), at 336. Policy statements can be issued at any time, and there is no limitation as to when they can take effect.
The purpose of sentencing guidelines is to enable sentencing courts to calculate "the kind of sentence and sentencing range" applicable to a defendant. 18 U.S.C. § 3553(b), (a)(4). The purpose of policy statements is to assist sentencing courts in applying the sentencing guidelines and to comment about any aspect of sentencing "that in the view of the Commission would further the purposes" of sentencing. 28 U.S.C. § 994(a)(2).
Perhaps the principal difference between a sentencing guideline and a policy statement is the impact they have upon judicial discretion. See generally Jonathan D. Lupkin, Note, 5K1.1 and Substantial Assistance Departure: The Illusory Carrot of the Federal Sentencing Guidelines, 91 Colum. L. Rev. 1519, 1528-34 (1991). Congress has directed sentencing courts to impose a sentence "of the kind, and within the range" that is "set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(1) . . ." 18 U.S.C. § 3553(b), (a)(4), "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration in formulating the guidelines that should result in a sentence different from" that called for by the guidelines, 18 U.S.C. § 3553(b). By contrast, Congress has directed sentencing courts merely to "consider" general policy statements. 18 U.S.C. § 3553(a)(5). As the Justice Department has observed, "GUIDELINES must be distinguished from POLICY STATEMENTS. . . . The guidelines, of course, are mandatory. [citing 18 U.S.C. § 3553(b)] The policy statements, on the other hand, only provide general advisory statements which are not binding." U.S. Dep't of Justice, Crim. Div., Prosecutors Handbook on Sentencing Guidelines and Other Provisions of the Sentencing Reform Act of 1984, at 6-7 (Nov. 1, 1987) (capitals and emphasis in original), reprinted in 2 T. Hutchison & D. Yellen, Federal Sentencing Law and Practice App. 11, at 485-86 (1989).
The Supreme Court's decisions in Williams v. United States, 112 S.Ct. 1112 (1992), and Stinson v. United States, 113 S.Ct. 1913 (1993), underscore the difference between sentencing guidelines on the one hand, and general policy statements and commentary on the other hand. The issue in Williams was what an appellate court must do if it finds that the sentencing court relied upon both valid and invalid factors when departing. The Supreme Court held that the appellate court must remand for resentencing unless the appellate court finds that the sentencing court would have imposed the same sentence had it not relied upon the invalid factor. 112 S.Ct. at 1120 In the course of reaching that decision, the Court had to consider U.S.S.G. § 4A1.3, p.s. The Court noted that there is a distinction between sentencing guidelines and general policy statements, but pointed out that "to say that guidelines are distinct from policy statements is not to say that their meaning is unaffected by policy statements."
The issue in Stinson concerned the effect of commentary that defined the term "crime of violence" as used in the career offender guideline, U.S.S.G. § 4B1.1. The Eleventh Circuit had held that the commentary was not binding, and the Supreme Court took the case because "the various courts of appeals have taken conflicting positions on the authoritative weight to be accorded to the commentary to the Sentencing Guidelines." Stinson, 113 S.Ct. at 1915. The Court reversed the Eleventh Circuit, holding that commentary should be treated as the equivalent of an agency's interpretation of the agency's legislative rules. Stinson, 113 S.Ct. at 1918-19. Relying on Williams v. United States, 112 S.Ct. 1112 (1992), the Court noted that, "as we have often stated, provided an agency's interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given 'controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" Id. (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1992)).
The Commission itself has noted that a general policy statement has a different impact from a sentencing guideline. Congress has authorized the Commission to promulgate guidelines or policy statements to deal with revocation of probation, modification of the terms or conditions of supervised release, and revocation of supervised release. 28 U.S.C. § 994(a)(3). See U.S.S.G. Ch. 7, Pt. A(3)(a) ("the Commission found a choice between promulgating guidelines or issuing advisory policy statements"). The Commission decided to promulgate policy statements and has indicated that it selected policy statements in part because "this approach provided greater flexibility to both the Commission and the courts." Id. While "flexibility", for the Commission, relates to the Commission's ability to amend a policy statement at any time, "flexibility" for the courts must necessarily mean that courts are not bound by the policy statement. Thus, if a particular policy statement proves unworkable or impractical, or leads to bizarre or unreasonable results, the courts are free to do what is reasonable under the circumstances. See also U.S.S.G. ch.1, pt. A (4)(c) ("The Commission decided not to make major changes in plea agreement practices in the initial guidelines, but rather to provide guidance by issuing general policy statements. . . .")
This court has found dispositive the distinction between sentencing guidelines and general policy statements. In United States v. Hooker, 993 F.2d 898 (D.C. Cir. 1993), the court found that the chapter 7 policy statements about revocation of probation and supervised release are advisory and not binding. The court relied upon the fact that the policy statements were "independent of (and a conscious substitute for) any Guideline." Id. at 901. That distinguished the situation from the situation in Williams v. United States, 112 S.Ct. 1112 (1992), where the Supreme Court held that policy statements were binding when they were promulgated in conjunction with, and as an interpretation of, a guideline. Id. at 1119. In Hooker, this court found that policy statements, standing alone, are not binding. 993 F.2d at 901. This is exactly the rationale upon which Judge Edwards relied in his concurring opinion in the direct appeal of this case.
C.Congress, in the Anti-Drug Abuse Act of 1986, Specifically Directed the Sentencing Commission to Promulgate a Sentencing Guideline to Address the Situation Where a Defendant has Substantially Assisted Law Enforcement Authorities.
The enactment of mandatory minimum prison terms for drug cases created a problem for law enforcement authorities. A defendant confronted with a mandatory minimum prison term could not receive a tangible benefit by helping law enforcement authorities unless the President were willing to pardon the defendant or commute the defendant's sentence. The Sentencing Reform Act of 1984 made no provision for imposing a sentence below a statutorily-mandated minimum term of imprisonment. Congress addressed this problem in the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1007 (enacting 18 U.S.C. § 3553(e)), by authorizing a sentencing court, "upon motion of the Government, to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance" to law enforcement authorities.
A similar problem did not exist with respect to the sentencing
guidelines. The Sentencing Reform Act of 1984, by authorizing
departures, had given sentencing courts the ability to impose a
sentence below the applicable guideline range if there was a factor
in the case that the Sentencing Commission did not consider (or
inadequately considered). As long as the sentencing guidelines did
not specifically account for assistance to law enforcement
authorities, the sentencing court could depart below the guideline
range.
Congressional action was unnecessary.
Nevertheless, Congress acted. The Anti-Drug Abuse Act of 1986, in the provision immediately following the provision that enacted 18 U.S.C. § 3553(e), directed the Commission to
assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.
Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1008, 100 Stat. 3207-7 - 3207-8 (enacting 28 U.S.C. § 994(n)).
Congress, in the recently-passed crime bill, again addressed
the matter of mandatory minimums, and in doing so reaffirmed that
Congress recognizes the differences between sentencing guidelines
and general policy statements. Section 80001(a) of the Violent
Crime Control and Law Enforcement Act of 1994, adds a new
subsection to 18 U.S.C. § 3553. The new subsection authorizes the
court to sentence without regard to an otherwise-applicable
mandatory minimum if the defendant meets five criteria. See 140
Cong. Rec. H-8772, 8823 (daily ed. Aug. 21, 1994). Section
80001(b) of the legislation amends 28 U.S.C. § 994 concerning
implementation of the new subsection. Congress (1) requires the
Commission to promulgate "guidelines, and amendments to guidelines,
to carry out the purposes" of the new subsection, and
(2) authorizes (but does not require) the Commission to promulgate
"policy statements, or amendments to policy statements, to assist
in the application of" the new subsection. Id. (emphasis added).
D.The Sentencing Commission's Promulgation of U.S.S.G. § 5K1.1, p.s., Does Not Comply With the Congressional Mandate in the Anti-Drug Abuse Act of 1986.
The Sentencing Commission sought to comply with the Congressional mandate in the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1008, 100 Stat. 3207-7 - 3207-8, by promulgating a policy statement, U.S.S.G. § 5K1.1, p.s., which provides that "upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines." Congress, however, mandated a sentencing guideline. See 28 U.S.C. § 994(n) ("the Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed" if a defendant has provided substantial assistance to authorities) (emphasis added).
There is an important policy reason why Congress would want substantial assistance dealt with by a guideline rather than by a policy statement. By requiring a guideline, Congress ensured a greater likelihood of uniformity of treatment. Mandating a guideline meant that substantial assistance could be dealt with as an adjustment to the offense level, just as role in the offense is dealt with. See U.S.S.G. §§ 3B1.1, 3B1.2. Without a guideline, the only way a court could have accounted for substantial assistance is by departure, which would have risked unjustified disparity. Different courts, for example, might place a significantly different value on the same level of assistance and depart to significantly different degrees. Both sentences might be valid, though disparate, because each would be considered reasonable. See 18 U.S.C. § 3742(e)(3) (test on review for sentence outside of guideline range is whether the sentence "is unreasonable, having regard for (A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and (B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c)" of title 18, United States Code).
The Commission has fully complied with other Congressional mandates. For example, Congress has mandated that "the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized" for specified career offenders. 28 U.S.C. § 994(h) (emphasis added). In response, the Commission has promulgated a guideline, U.S.S.G. § 4B1.1, not a policy statement. In response to the mandate of 18 U.S.C. § 3582(c)(2) for "policy statements," the Commission has promulgated U.S.S.G. § 1B1.10, p.s., a policy statement, not a guideline.
This court has required strict Sentencing Commission compliance with statutory mandates. In United States v. Price, 990 F.2d 1367 (D.C. Cir. 1993), this court reviewed the Commission's action in defining the term "controlled substance offense" in the career offender guideline to include conspiracies. The Commission stated that the definition was justified by the Congressional mandate of 28 U.S.C. § 994(h), which requires that the Commission assure that the guidelines call for a sentence at or near the statutory maximum for certain offenses. Because conspiracy to commit those offense was not specified in 28 U.S.C. § 994(h), this court found that the Congressional mandate did not justify the Commission's action. As the court noted, Commission action "may not stand if the agency has misconceived the law." 990 F.2d at 1370 (quoting SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)).
Because § 5K1.1, p.s., is a policy statement, it is invalid for failure to comply with the Congressional mandate, and a sentencing court must, when there has been substantial assistance to authorities, determine whether to depart by applying the statutory departure standard of 18 U.S.C. § 3553(b). That standard requires that there be "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration in formulating the guidelines that should result in a sentence different from" that called for by the guidelines. Because the guidelines do not take account of substantial assistance to authorities (if they did, there would be no basis upon which § 5K1.1 could state that a "court may depart from the guidelines" if the defendant has substantially assisted authorities in the investigation or prosecution of another person), the only question under 18 U.S.C. § 3553(b) would be whether the district court finds it appropriate to exercise the discretion to depart.
Defendant's counsel failed to challenge the validity of § 5K1.1. There was no tactical reason for failing to do so. Because such a challenge was defendant's only hope, he did not receive effective assistance of counsel. Defendant was prejudiced by this failure because § 5K1.1 is invalid, and the district court stated it would have given defendant a lower sentence if it had the power to do so. Defendant, therefore, respectfully requests this court vacate his sentence and remand for resentencing.
Respectfully submitted,
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE AS TO LENGTH OF BRIEF
I hereby certify that the foregoing brief contains no more
than the number of words allowed by Circuit Rule 28(d).
A.J. KRAMER
I HEREBY CERTIFY that two copies of the foregoing Brief of Appellant and one copy of the Appendix of Appellant were on this 6th day of September, 1994, served by hand-delivery upon John R. Fisher, Chief, Appellate Division, United States Attorney's Office, Room 10-435, 555 Fourth Street, N.W., Washington, D.C. 20001.
A. J. KRAMER