Opinion
CRIMINAL NO. RDB-06-0389.
August 9, 2007
MEMORANDUM OPINION
Now pending before this Court is the Motion to Correct Sentence filed by the Government pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure. The Government contends that the sixty-month sentence imposed by this Court upon the Defendant was imposed in clear error and moves this Court to correct the Judgment Order and sentence the Defendant to 120 months. The Government's motion presents the question whether this Court, after reducing the sentence below the statutory minimum, based on the substantial assistance of the Defendant pursuant to 18 U.S.C. § 3553(e), may reduce the sentence further based on factors, other than substantial assistance, listed in 18 U.S.C. § 3553(a). This Court holds that it may. Accordingly, having heard argument on the Government's motion on August 7, 2007, and for the reasons that follow, this Court will, by separate Order, deny the Government's motion.
Background and Procedural History
On June 24, 2006, Charles Spigler asked the Defendant Mickey Mankins to "pawn" a rifle for him. While Mankins did not own the firearm, he agreed to take that rifle to the Washington Street Pawn Brokers Inc. in Hagerstown, Maryland and present the rifle for pawn and receive $40.00 in return. One month later, the Defendant Mankins and Spigler returned to the pawn shop and attempted to redeem the rifle. Prior to this date, Mankins had been convicted of an offense which was punishable by imprisonment for more than one year. Upon his return to the pawn shop he was confronted by federal law enforcement officials. Mankins was ultimately charged in a two-count criminal indictment with conspiracy in violation of 18 U.S.C. § 371 and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appeared in this Court on November 7, 2006 and pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
While Mankins had an extensive criminal history up until 1995, during the ten years prior to the subject offense he received a conviction for second degree assault arising out of a domestic incident in 1998 and possession of marijuana in 2000. Nevertheless, as a result of having three prior convictions for violent felonies and/or serious drug offenses, the enhanced penalties under 18 U.S.C. § 924(e) applied, and he was classified as an Armed Career Criminal. Pursuant to 18 U.S.C. § 924(e), the Defendant faced a mandatory minimum sentence of 180 months (fifteen years). Accordingly, his advisory guideline range with a total offense level of 30, criminal history category VI, was 180 to 210 months. At his sentencing on June 7, 2007, consistent with the terms of the plea agreement, the Government moved for a four-level downward departure pursuant to United States Sentencing Guidelines Manual (U.S.S.G.) § 5K1.1 and 18 U.S.C. § 3553(e). This Court granted that motion, but declined any further substantial assistance guideline departure requested by the Defendant. Therefore, Mankins's total offense level was reduced to 26, and with a criminal history category of VI, his advisory guideline range was reduced to 120 from 150 months. The Government recommended a sentence of 120 months.
Having calculated the range prescribed by the guidelines, this Court next considered whether a sentence within that advisory sentencing guideline range of 120 to 150 months served the factors set forth in 18 U.S.C. § 3553(a). Having determined that the sentence did not serve those factors, this Court considered the particular factors of the history and characteristics of the Defendant and the nature and circumstances of this offense. This Court noted the Defendant's drug addiction problem and lack of any major criminal activity over a period of ten years. Furthermore, this Court noted the nature and circumstances of this offense which did not involve any violent criminal activity and merely involved the Defendant possessing a firearm for approximately ten minutes on behalf of the owner of the firearm prior to presenting it for pawn and the receipt of money. In light of these considerations, this Court imposed a sentence of sixty months and ordered that the Defendant be immediately remanded to the United States Marshal to begin the service of that sentence. The Government has now filed the subject motion arguing that the sixty-month sentence was in clear error and that this Court is compelled to sentence the Defendant to 120 months as suggested by the advisory sentencing guidelines.
Analysis
The Government argues that despite the United States Sentencing Guidelines having been rendered advisory under United States v. Booker, 543 U.S. 220 (2005), that the statutory mandates of 18 U.S.C. § 3553(e) compel that this Court only consider the Defendant's substantial assistance in rendering a sentence below the mandatory minimum of 180 months (fifteen years). The Government notes those cases addressing the statutory minimum sentences under 18 U.S.C. § 3553(e) prior to the Supreme Court's opinion in the Booker case and argues that the Booker opinion has no effect upon the mandatory sentence established by statute. The Government places great reliance upon the opinion of the United States Court of Appeals for the Eighth Circuit in United States v. Williams, 474 F.3d 1130 (8th Cir. 2007), in which the Eighth Circuit addressed the precise issue before this Court. In response, the Defendant places great emphasis upon the opinion of the United States Court of Appeals for the Fourth Circuit in United States v. Allen, 450 F.3d 565 (4th Cir. 2006), which emphasized the process set forth in the Fourth Circuit's earlier opinions in United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), United States v. Green, 436 F.3d 449 (4th Cir. 2006), and United States v. Moreland, 437 F.3d 424 (4th Cir. 2006).
A. Authority to Impose a Sentence Below a Statutory Minimum
Pursuant to 18 U.S.C. § 3553(e) a court may impose a sentence below a statutory minimum sentence so as to reflect a defendant's substantial assistance. The statute specifically states that such a sentence "shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission." 18 U.S.C. § 3553(e). This reference to the imposition of a sentence in accordance with the sentencing guidelines necessarily addresses the advisory nature of those guidelines after the Supreme Court's opinion in the Booker case. In the Williams case, the Eighth Circuit places great emphasis upon the reference to statutory minimum and a determination of substantial assistance. There is not great emphasis noted to the reference to the now-advisory Federal Sentencing Guidelines.
B. Post- Booker Sentencing with Respect to Mandatory Minimums
The Government aptly notes that the Booker opinion does not permit this Court to sentence a defendant below the statutory minimum, absent a Government motion for a reduction pursuant to 18 U.S.C. § 3553(e) as a result of the defendant's substantial assistance. See United States v. Johnson, 393 F.3d 466, 470 (4th Cir. 2004); United States. v. Robinson, 404 F.3d 850, 862-63 (4th Cir. 2005). However, the series of decisions by the Fourth Circuit in Hughes, 401 F.3d at 540, Green, 436 F.3d at 449, and Moreland, 437 F.3d at 424, provide clear instruction to this Court with respect to the process to be followed in imposing a sentence. Furthermore, the Fourth Circuit in United States v. Allen clearly recited the process to be undertaken by this Court after the Government makes a motion under 18 U.S.C. § 3553(e) for a departure due to the defendant's substantial assistance. 450 F.3d at 570. In remanding the Allen case to this Court, the Fourth Circuit held that this Court could not depart below a statutory mandatory minimum based only on a Government motion under U.S.S.G. § 5K1.1 and specifically noted that the Government must also move under 18 U.S.C. § 3553(e). In a footnote at the conclusion of that opinion, the Fourth Circuit specifically provided instruction to this Court once an appropriate section 3553(e) motion was made:
Assuming the Government makes the appropriate § 3553(e) motion on remand, in sentencing Allen, the district court must first "calculate (after making the appropriate findings of fact) the range prescribed by the guidelines." United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Next, the court must consider whether a sentence within the advisory sentencing range "serves the factors set forth in § 3553(a) and, if not, select a sentence that does serve those factors." United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006). To select a sentence that serves the § 3553(a) factors, the court "should first look to whether a departure is appropriate based on the Guidelines" and, "[i]f an appropriate basis for departure exists, the district court may depart." United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). "If the resulting departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-guideline sentence (a `variance sentence')." Id. Regardless of the sentence ultimately imposed, the court must fully and articulately explain its reasons for choosing a given sentence, especially if a departure or variance is involved. Id.; Hughes, 401 F.3d at 546 n. 5.Id. at 570 n. 5.
As noted in the Allen opinion, once the Government makes a motion under 18 U.S.C. § 3553(e), this Court must first "calculate . . . the range prescribed by the guidelines" consistent with the mandates of the Hughes case. Id. at 570 n. 5 (quoting Hughes, 401 F.3d at 546) (internal quotation marks omitted). The record in this case clearly reflects, and the Government acknowledges, that this Court did conduct such a thorough analysis. After determining the advisory sentencing range, this Court must next consider whether a sentence within that range serves the factors set forth in 18 U.S.C. § 3553(a). Once again, the Government acknowledges that this Court did conduct such an analysis. Furthermore, this Court having determined that a sentence within the advisory guideline range of 120 to 150 months did not serve the factors of 18 U.S.C. § 3553(a) selected a sentence that did serve those factors. This is consistent with the mandates of the Fourth Circuit in United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006). This Court dealt with the departure with respect to substantial assistance within the guideline framework as mandated by United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). Having determined that this range still did not serve those factors as set forth in 18 U.S.C. § 3553(a), this Court elected to impose a non-guideline sentence.
In arguing that this Court should follow the Eighth Circuit's opinion in United States v Williams, the Government places its focus on the text of 18 U.S.C. § 3553(e). However, the language referencing a sentence "so as to reflect a defendant's substantial assistance" is followed by the instruction that the sentence "should be imposed in accordance with the guidelines." 18 U.S.C. § 3553(e). The Fourth Circuit has provided clear instructions in the Hughes, Green, Moreland, and Allen cases with respect to the analysis to be conducted when imposing a sentence in accordance with the guidelines. In that regard, it is significant to note that the Eight Circuit in the Williams case did not address the "parsimony provision" of 18 U.S.C. § 3553(a), pursuant to which a court "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in the remainder of the statute. This Court could certainly have conducted its section 3553(a) analysis first and determined that a sixty-month sentence was appropriate and could then have awaited a Government motion for a downward departure under section 3553(e) before departing downward from the mandatory minimum of 180 months. However, this approach would not have been consistent with the clear instructions reiterated by the Fourth Circuit in the Allen case.
Section 3553(a) has been referred to as the "parsimony provision" by several courts. See, e.g., United States v. Cherry, 487 F.3d 366, 371 (6th Cir. 2007); United States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006).
Conclusion
Having conducted the appropriate analysis, this Court concludes that once the provisions of 18 U.S.C. § 3553(e) are implemented and satisfied by the Government, this Court must look to the advisory guideline structure in determining an appropriate sentence. In the aftermath of the Booker opinion, this Court retains the discretion to ultimately determine the appropriate punishment after having conducted both a guidelines analysis and then an analysis under 18 U.S.C. § 3553(a). Accordingly, this Court holds that once the provisions of 18 U.S.C. § 3553(e) are triggered the advisory guidelines are incorporated and provide this Court with discretion to impose an appropriate punishment. This Court declines to follow the holding of the Eighth Circuit in United States v. Williams, and follows the clear directives of the Fourth Circuit in those series of cases summarized in its opinion in United States v. Allen.
Accordingly, the Government's Motion to Correct the Sentence imposed in this case is DENIED. A separate Order follows.