United States v. Griffin 17 F.3d 269

BEAM, Circuit Judge.

Terrance Griffin, Kevin Cokes and Joseph Donnell were arrested for conspiracy to distribute cocaine base. All three entered pleas of guilty and cooperated with the FBI and other drug enforcement authorities in investigations of the drug conspiracy. In exchange for this cooperation, the government made 5K1.1 motions for downward departure at the sentencing hearings in all three cases. As a result, Griffin, Cokes and Donnell received sentences significantly below the guideline range and below the statutory ten-year mandatory minimum. The government later filed a motion for correction of sentence pursuant to Rule 35(b)1 and requested a further reduction in the sentences for subsequent, substantial assistance.

The same district judge2 who initially sentenced the appellants directed a magistrate judge to conduct hearings and to recommend a disposition for the Rule 35(b) motions. The magistrate judge issued findings of fact and conclusions of law recommending that the Rule 35(b) motions be denied as inappropriate. After an independent review of the record, the district court adopted the magistrate judge’s report and denied the motions. Griffin, Cokes, and Donnell appeal contending that the Rule 35(b) motions were an integral part of their plea agreements and that the district court abused its discretion by denying the motions. We affirm.

The government filed the Rule 35(b) motions, thereby fulfilling any obligations it may have had under the plea agreement. The appellants concede that the district court was not bound to grant the Rule 35(b) motions. After a hearing, the magistrate judge concluded that the appellants had not provided subsequent, substantial assistance that would warrant further reductions in their sentences. The district court adopted this conclusion. The decision to grant or deny a Rule 35(b) motion is entirely within the discretion of the district court. Goff v. United States, 965 F.2d 604 (8th Cir.1992) (per curiam). Absent an abuse of that discretion,3 the appellate courts cannot interfere. We find no evidence that the district court *271abused its discretion in this case. Accordingly, the decision of the district court is affirmed.

BRIGHT, Senior Circuit Judge,

dissenting.

I dissent.

The facts are undisputed.1

1. The federal prosecutor promised the defendants-appellants that he would make the appropriate motions to reduce the heavy drug sentence each faced if defendants assisted in the prosecution of other members of the drug conspiracy. Immediately, the defendants cooperated; the prosecutor made the necessary motions2 to reduce defendants’ sentences and the district court recognized and enforced the prosecutor’s promises.3

2. The prosecutor further promised the defendants that if each provided, further assistance in pending drug investigations, he would move for a second reduction in their sentences. The defendants gave additional assistance for other pending prosecutions. The prosecutor made the appropriate motions but the magistrate judge hearing the case determined, as a matter of fact and law, that the court could not honor the prosecutor’s promises. The district court adopted the magistrate judge’s findings and conclusions and denied further sentence reductions. This appeal followed.

In my view, the magistrate judge erred and the district court continued the error. I would therefore reverse and remand for reconsideration of the motions.

I.

The prosecutor represented to the magistrate judge that defendants Terrance Griffin *272and Kevin Cokes provided additional and new assistance more than one year after the defendants had been initially sentenced.4 The prosecutor also represented that under the arrangement made with Joseph Donnell, who assisted in getting Cokes to cooperate, Donnell would benefit from Cokes’ further cooperation. Additional assistance from these defendants and others led to the preparation of cases against other drug defendants, who then pleaded guilty. Nevertheless, the prosecutor represented that assistance from these defendants gave the government important new information which benefitted the government in its additional prosecutions.

The magistrate judge rejected the defendants’ claims for a second reduction, asserts ing that the additional assistance counted for nothing as a matter of law or fact. The magistrate judge’s rationale appeared to rest solely on his own personal experience as an Assistant U.S. Attorney, who in that role, had made all deals “up front.” In part, the magistrate judge said:

I would suggest, though, that in the future, Mr. Ossorio [Assistant United States Attorney presenting the motion], you might alert your fellow assistant United States attorneys that as was my practice and I know you love to hear this, when I was in that office, I always gave everybody the benefit on the front end, so that it was clear that I anticipated they would testify and they got the benefit for that testimony at the time the [§ 5K1.1] motion was filed, even though it hadn’t been accomplished.

Motion Tr. (11/10/92), at 31 (emphasis added). Further, the magistrate judge claimed that the prosecutor’s arrangement violated an Attorney General policy.

We reject this reasoning, as Fed.R.Crim.P. 35(b) contains no limitation excluding an additional reduction of sentence when that defendant has already received a benefit for prior substantial assistance under § 5K1.1 or 18 U.S.C. § 3553(e).

Moreover, the asserted violation of the Attorney General’s policy appears to be irrelevant and probably wrong. The policy violation of the prosecutor, as here asserted by the magistrate judge, may be a concern of the Department of Justice but is generally not binding on a judge who is limited to matters of fact and law in making sentencing decisions. Cf. United States v. Lorenzo, 995 F.2d 1448, 1453 (9th Cir.1993) (U.S. Attorney’s Manual does not create any substantive or procedural right enforceable at law). Moreover, Attorney General Thornburgh’s policy in part reads:

The most important departure is for substantial assistance by a defendant in the investigation or prosecution of another person. Section 5K1.1 provides that, upon motion by the government, a court may depart from the guidelines and may impose a non-guideline sentence. This departure provides federal prosecutors with an enormous range of options in the course of plea negotiations. Although this departure, like all others, requires court approval, prosecutors who bargain in good faith and who state reasons for recommending a departure should find that judges are receptive to their recommendations.

App. at 55-56.

Thus, the policy gives the prosecutor broad discretion in this area. Here, the prosecutor clearly acted in “good faith” and stated reasons for recommending departure. Thus, the alleged “policy” violation appears groundless.

The record indicates that the magistrate judge confused his function as a judge with his prior duties as a federal prosecutor.5 This confusion led to his error in failing to *273consider defendants’ additional assistance before rejecting their pending motions. The district court adopted the magistrate judge’s views and persisted in the error, as indicated above.

Accordingly, I would reverse and remand for reconsideration of the motions for reduction of the sentences. I would suggest a referral, if any, by the district judge, be made to a different magistrate judge.

II.

THE MYTH OF CONSISTENCY IN SENTENCES.

I take this opportunity to comment on the obvious unfairness of mandatory mínimums and guideline sentencing. First, this case graphically punctures a myth that mandatory mínimums and guideline sentences in drug cases result in equal treatment for offenders. The promise under federal law that all drug dealers and other drug offenders shall serve long prison terms as a strong deterrent in the so-called war on drugs is also false. As already observed, the defendants received heavy slashes in the guideline mandatory sentences through motions made by the prosecutor, accepted by the sentencing judge.6

In this case these defendants and others had something to sell — information on their former cohorts.7 For that each became entitled to a motion for sentence reduction and *274initially received sentences well below the guidelines and the mandatory mínimums. Further, as disclosed by the letter quoted in footnote 7, some of the conspiracy members had obtained additional sentence reductions.

I do not criticize this policy. Its rationales include “giving the prosecutor a powerful law enforcement tool, ... [and] providing a just reward for a cooperative defendant.” United States v. Kelley, 956 F.2d 748, 755 (8th Cir.1992). I must observe, however, that prosecutors, not federal judges, possess this awesome power to initiate reductions of prison sentences below mandatory mínimums and below guideline ranges.

Some of the defendants in this case may or may not be the most culpable in the conspiracy. I do suggest, however, that at least one defendant bears heavy responsibility for the previously flourishing crack conspiracy. Some sense of fairness, compassion and honesty in sentencing compels the conclusion that other drug offenders may be deserving of a break, particularly first-time offenders, those low on the totem pole of the drug hierarchy with little culpability, people who have no information to sell, and other minor players who are fit subjects for rehabilitation because they have learned the lesson of their wrongful ways. These are persons who can be saved from years and years of imprisonment which benefits neither society nor the offender.

What kind of a criminal justice system rewards the drug kingpin or near-kingpin who informs on all the criminal colleagues he or she has recruited, but sends to prison for years and years the least knowledgeable or culpable conspirator, one who knows very little about the conspiracy and is without information for the prosecutors?

Imposing heavy sentences on first offenders who play only a minor role in an offense and who do not use any weapon wastes lives. The statistics are striking:

1. Low level, non-violent drug offenders account for 21.2% of the federal prison population. These small-time drug offenders often serve longer prison sentences than robbers, rapists and kidnappers.8

2. Statistics available from the Sentencing Commission on drug offenses indicate that of the 16,684 offenders sentenced in fiscal year 1992, a great percentage (41.3%) and a total of 6,897 persons had zero criminal *275history points, used no weapon, and played a non-aggravating role in the offense.9

3. These same statistics show that of those sentenced under the guidelines subject to mandatory minimum statutes, 34.7% of those sentenced — 3,198 persons — had no criminal history points, used no weapon and played no aggravating role in the crime. We know that such offenders received sentences no less than five years, or no less than ten years, or no less than fifteen years and some no less than twenty years imprisonment, as called for by whatever mandatory minimum sentences applied in the case (based substantially on weight of drugs).

Our sentencing opinions have frequently recited the irrationality of the guidelines in drug sentences. New data demonstrate the frequency and regularity of lengthy sentences for non-violent crimes committed by first-time drug offenders.

These heavy sentences seem not to have served as a deterrent.10 Again, this observer comments: the sentencing system is irrational; it “cries out for change.”. See United States v. Smith, 997 F.2d 396, 399 (8th Cir.1993) (Bright, J., dissenting) (citing and quoting Marc Miller & Daniel J. Freed, Suggestions for the President and the lOSrd Congress on the Guideline Sentencing System, 5 Fed.Sent.R. 187 (Jan./Feb.1993)).