United States v. Webb, Alvin

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 1997 Decided February 3, 1998

No. 97-3059

United States of America,

Appellant

v.

Alvin Webb,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 94cr00245-01)

Thomas J. Tourish, Jr., Assistant U.S. Attorney, argued

the cause for appellant, with whom Mary Lou Leary, U.S.

Attorney, and John R. Fisher, Assistant U.S. Attorney, were

on the briefs.

Evelina J. Norwinski, Assistant Federal Public Defender,

argued the cause for appellee, with whom A.J. Kramer,

Federal Public Defender, was on the briefs. William G.

Spencer, Assistant Federal Public Defender, entered an ap-

pearance.

Before: Ginsburg, Henderson, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: Defendant Alvin Webb pleaded

guilty to distribution of more than 50 grams of crack cocaine.

When sentencing Webb, the district court departed down-

ward from the sentencing range specified in the United

States Sentencing Guidelines chiefly due to Webb's addiction

to drugs but also due in part to the Government's decision not

to arrest Webb earlier, when he had made small sales to an

undercover officer and would have received a lesser sentence

under the Guidelines. Because the district court relied upon

impermissible factors in reaching its decision to depart from

the Guidelines, we remand the case for resentencing within

the proper range.

I. BACKGROUND

By his own admission Alvin Webb sold cocaine base in the

500 block of Florida Ave., N.W., in Washington, D.C. for

"about three years" before finally being arrested in March

1994. An addict himself, he said "the suppliers would just

give me the stuff to give to the people.... I never received

any money. All I received was just drugs for that."

Acting upon information from a confidential informant, an

undercover agent of the Drug Enforcement Administration

located Webb and bought crack cocaine from him three times

in February 1994, in quantities of 5.3 grams, 6.3 grams, and

55.8 grams. Focusing upon the third sale, the Government

charged Webb with one count of distributing 50 grams or

more of cocaine base in violation of 21 U.S.C. ss 841(a)(1) and

(b)(1)(A)(iii). Webb entered a plea of guilty and agreed that

he should be held accountable under the "relevant conduct"

provision of the Sentencing Guidelines for the first and

second sales as well. See U.S.S.G. s 1B1.3. The additional

11.3 grams did not affect Webb's sentencing range, however.

See id. s 2D1.1(c)(4) (table setting base offense level at 32 for

distribution of 50 to 150 grams of cocaine base).

At Webb's initial sentencing hearing defense counsel sug-

gested "delaying the sentencing to see if Mr. Webb can

benefit from inpatient drug treatment with the Veterans

Administration for some period of time and ... maintain

some type of employment." The court agreed to grant Webb

a continuance in order "to allow him to take certain steps so

he can meet the downward departure grounds set forth in

United States v. Harrington, 808 F. Supp. 883 (D.D.C. 1992)

based on his drug rehabilitation efforts." The court released

Webb into the custody of his brother, an investigator with the

D.C. Department of Corrections, on the condition that Webb

enroll immediately in the VA drug rehabilitation program,

which takes four to six months to complete.

After one month, Webb dropped out of the program and

out of sight. He resumed using drugs and remained a

fugitive from justice for 18 months.

Although the offense to which Webb pleaded guilty carries

a statutory minimum sentence of ten years' imprisonment,

the Congress has recently provided a "safety valve" that

enables a district court to impose a sentence in accordance

with the applicable Guidelines and without regard to the

statutory minimum sentence when certain conditions obtain.*

__________

* The conditions are that:

(1) the defendant does not have more than 1 criminal history

point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of

violence or possess a firearm or other dangerous weapon (or

induce another participant to do so) in connection with the

offense;

(3) the offense did not result in death or serious bodily injury

to any person;

(4) the defendant was not an organizer, leader, manager, or

supervisor of others in the offense, as determined under the

The district court determined--and the Government does not

dispute--that Webb may be sentenced without regard to the

statutory minimum.

The base offense level for the distribution of 50 to 150

grams of crack cocaine is 32. U.S.S.G. s 2D1.1(a)(3); id.

s 2D1.1(c)(4) (table). Webb qualifies for an automatic two-

point reduction under the heading of Specific Offense Charac-

teristics, U.S.S.G. s 2D1.1(b)(6), because he meets the

"safety valve" criteria noted above and his base offense level

was greater than 25. Webb's probation officer recommended

a two-point increase for Obstructing or Impeding the Admin-

istration of Justice, U.S.S.G. s 3C1.1, because Webb had

"absconded from inpatient drug treatment, resumed drug use

and failed to return to Court for sentencing." In view of

Webb's obstruction of justice, the probation officer also sug-

gested that Webb was not entitled to any reduction for

Acceptance of Responsibility, U.S.S.G. s 3E1.1. See id. Ap-

plication Note 4 ("Conduct resulting in an enhancement under

s 3C1.1 ... ordinarily indicates that the defendant has not

accepted responsibility for his criminal conduct"). With an

offense level of 32 and a criminal history category of I, the

probation officer calculated that Webb should be sentenced in

the range from 121 to 151 months.

At Webb's final sentencing hearing the prosecutor asked

for a sentence in the indicated range. Defense counsel

requested a three-point reduction for acceptance of responsi-

__________

sentencing guidelines and was not engaged in a continuing

criminal enterprise, as defined in 21 U.S.C. s 848; and

(5) not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government all infor-

mation and evidence the defendant has concerning the offense

or offenses that were part of the same course of conduct or of a

common scheme or plan, but the fact that the defendant has no

relevant or useful information to provide or that the Govern-

ment is already aware of the information shall not preclude a

determination by the court that the defendant has complied

with this requirement.

18 U.S.C. s 3553(f); U.S.S.G. s 5C1.2.

bility (notwithstanding the enhancement for obstruction of

justice), which would have yielded an offense level of 29 and a

sentencing range of 87-108 months. The court not only

granted the requested three-point reduction but also declined

to give the two-point enhancement for obstruction of justice,

apparently because the court did not regard Webb's 18-

month absence as willful. The court explained:

It's because he doesn't control his own body. That's the

problem. He doesn't control himself. He's out of con-

trol. He didn't do it to defy anybody. He hasn't done it

in a defiant act. He did it because it's impossible for

him.

The court thus gave an overall reduction of five points--two

for meeting the "safety valve" criteria and three for accep-

tance of responsibility, with no enhancement for obstruction

of justice--yielding an offense level of 27 and a sentencing

range of 70-87 months.

Although defense counsel had neither asked for a depar-

ture from the Guidelines nor proffered any ground for depar-

ture, and although the presentence report had identified "no

known factors that would warrant a departure in this case,"

the district court told Webb that even after reducing his

offense level to 27 it still had a problem with sentencing him:

Now here is my problem. My problem is that your

offense level, that these Guidelines grossly overstate the

offense level here. It's grossly disproportional to the

crime. And the crime here is addiction. As I said

before, if you were in a different economic bracket in this

country, you'd probably be out at the Betty Ford Clin-

ic.... So I've got to reduce it down because of its

disproportionality.

Thus the district court departed downward sua sponte from

the Guidelines range by some 30 months: "I'm going to

reduce it down to an offense level 22, and I'm going to

sentence you to 41 months in prison. I think 41 months is

even much too long for you."

Anticipating that it would do something like this, the court

had indicated earlier in the hearing that it expected to be

reversed. Addressing itself to the Government, the court

said: "I realize that you people hold all the weapons in this

war on drugs, and I'll give you an easy one to get me

reversed on.... I'll give you an easy one."

Two months after sentencing Webb the district court is-

sued an opinion defending its sentence upon three grounds.

First, the court explained, "The principal mitigating circum-

stance here is Defendant Webb's addiction to drugs, specifi-

cally crack cocaine." United States v. Webb, 966 F. Supp. 16,

17 (D.D.C. 1997). Second, the court stated its belief that "the

Guidelines range is disproportionate and unduly harsh in this

case, and would subject Defendant Webb to constitutional and

legal deprivations." Id. Finally, the court observed that

the government played a key role in the determination of

Defendant Webb's ultimate sentence.... If the under-

cover officer had arrested Defendant Webb after making

lesser purchases from him ... then Defendant Webb

would be facing a sentence of less severity

and opined that "[t]he sentencing court should have the right

to take this fact into account." Id.

Not surprisingly, the United States appealed the sentence.

II. ANALYSIS

The Government has expressly declined to challenge the

district court's calculation of Webb's offense level (27) and

criminal history (category I). The only issue it raises upon

appeal is whether the district court abused its discretion by

departing downward from the Guidelines sentencing range of

70-87 months for the reasons it gave. We conclude that none

of those reasons justifies a departure and that, therefore, the

district court abused its discretion.

A.Addiction to Drugs

The Supreme Court has instructed a court considering a

departure from the Sentencing Guidelines first to ask itself:

1) What features of this case, potentially, take it outside

the Guidelines' 'heartland' and make it a special, or

unusual, case?

2) Has the Commission forbidden departures based on

those features?

3) If not, has the Commission encouraged departures

based on those features?

4) If not, has the Commission discouraged departures

based on those features?

Koon v. United States, __ U.S. __, 116 S. Ct. 2035, 2045 (1996)

(quoting United States v. Rivera, 994 F.2d 942, 949 (1st Cir.

1993)). Here the district court identified Webb's drug addic-

tion as the "principal mitigating circumstance" that, in its

view, takes this case outside the heartland of the guideline for

drug distribution. Webb, 966 F. Supp. at 17.

This potentially mitigating circumstance falls at the first

hurdle, however, because the Sentencing Commission has

essentially forbidden departure on that basis; the Guidelines

plainly state that "[d]rug or alcohol dependence or abuse is

not a reason for imposing a sentence below the guidelines."

U.S.S.G. s 5H1.4. Although that directive is in the form of a

"policy statement" rather than a "guideline," it is still "an

authoritative guide" for a court contemplating a departure

from the Guidelines. Williams v. United States, 503 U.S.

193, 200 (1992). Indeed, the Supreme Court has specifically

confirmed that certain factors listed in part 5H of the Guide-

lines, including drug dependence, "never can be bases for

departure." Koon, 116 S. Ct. at 2044.

Webb's counsel recognizes as much and so argues that

[t]he district court here did not depart because it be-

lieved Mr. Webb's addiction made him less culpable, as is

forbidden under the Guidelines. Rather, the court de-

parted because it believed that drug use--i.e., buying

drugs to feed his addiction--was Mr. Webb's only crimi-

nal conduct.

The departure was appropriate, Webb's counsel suggests,

because "[s]mall-time purchase, possession and use are not

within the heartland of distribution cases for 50 grams or

more of crack cocaine." The problem with this position is

that Webb did not plead guilty to small-time purchase, pos-

session, or use; he pleaded guilty to distributing more than

50 grams of cocaine base in a single transaction. That

transaction places him squarely in the heartland of distribu-

tion cases for 50 grams or more of crack cocaine.

Webb argues in the alternative that the district court

legitimately departed from the Guidelines because Webb's

conduct does "not cause or threaten the harm or evil sought

to be prevented by the law proscribing the offense at issue,"

U.S.S.G. s 5K2.11, namely, as Webb sees it, acting as the

"kingpin" or "mastermind" of a major drug operation. We

reject that argument not only because the district court did

not purport to rely upon s 5K2.11 as a basis for its departure

from the Guidelines but also because that section is manifest-

ly inapplicable. The Congress has in effect defined a "major"

drug trafficker as one who distributes 50 grams or more of

crack. Thus, the whole purpose of 21 U.S.C. s 841(b)(1)(iii) is

to prevent anyone from doing precisely what Webb pleaded

guilty to doing: selling more than 50 grams of crack.

To sum up, although the district court may be correct in

saying that Webb's "criminal conduct in this case, as well as

his abscondence [sic], can be explained by his addiction," 966

F. Supp. at 17, in the regime established by the Sentencing

Reform Act, neither the district court's speculation nor the

defendant's addiction can justify a departure from the Guide-

lines. The Sentencing Commission "has proscribed, as a

categorical matter, consideration of the factor." Koon, 116

S. Ct. at 2051. The district court's reliance upon Webb's

addiction was mistaken as a matter of law and therefore, "by

definition," an abuse of its discretion. Id. at 2047.

B.Undue Harshness

The Supreme Court also made clear in Koon that "[a]

district judge now must impose on a defendant a sentence

falling within the range of the applicable Guideline, if the case

is an ordinary one." 116 S. Ct. at 2044. Because, as we have

seen, Webb's addiction does not remove his case from the

heartland of crack distribution cases, the district court must

impose a sentence falling within the Guideline range notwith-

standing its personal opinion that "the Guidelines range is

disproportionate and unduly harsh in this case." 966

F. Supp. at 17.

We have already had occasion to explain that

disproportionality does not, in itself, provide an appropri-

ate basis for a downward departure. Unless the dispro-

portionality between crime and punishment is so extreme

that it violates the Eighth Amendment ... the sentences

established for various crimes under the Guidelines can-

not be set aside based merely on their perceived severity.

United States v. Beckham, 968 F.2d 47, 54 (D.C. Cir. 1992)

(emphasis deleted). We reaffirm that principle today and

hold that the district court erred by disregarding it.

Although the district court suggested that imposing a

sentence within the Guidelines range "would subject Defen-

dant Webb to constitutional and legal deprivations," 966

F. Supp. at 17, neither the district court nor Webb has

identified any such deprivation, and we do not see any. The

district court's disagreement with the policies embodied in the

Sentencing Guidelines does not authorize it to depart: "To

permit departures for that reason would be to eviscerate the

Guidelines, reestablishing the very judicial discretion in sen-

tencing that the Guidelines were designed to confine." Beck-

ham, 968 F.2d at 54 (citing Mistretta v. United States, 488

U.S. 361, 396 (1989)).

C.Government Role in Determining Sentence

The district court noted, correctly but trivially, that "[i]f

the undercover officer had arrested Defendant Webb after

making [the two] lesser purchases from him ... then Defen-

dant Webb would be facing a sentence of less severity." 966

F. Supp. at 17. The court then opined that a "sentencing

court should have the right to take this fact into account," and

upon that basis departed downward from the range specified

in the Sentencing Guidelines. Id. Perhaps because we had

already rejected "sentencing entrapment" as a basis for ob-

taining a lesser sentence, see United States v. Walls, 70 F.3d

1323, 1329-30 (D.C. Cir. 1995), the district court did not

purport to revive the theory as a ground for departure and

instead blandly described the police conduct in question as

"arrang[ing] to make an arrest only after purchasing 55.85

grams [in the third transaction], thereby ... increasing

[Webb's] minimum guidelines sentence." 966 F. Supp. at 17.

Webb likewise purports to disavow any reliance upon "sen-

tencing entrapment" or "sentencing manipulation" but main-

tains that "police conduct" may nevertheless be a permissible

factor to consider for a departure from the Guidelines.

Following the lead of the Supreme Court in Koon, we begin

by asking whether any feature of this case potentially takes it

outside the Guidelines' heartland. We find none: Webb

patrolled Florida Avenue offering to sell crack; that it was

the police who upon three occasions accepted his offer is

irrelevant to his culpability for those sales.

Similarly, that the police did not arrest Webb after their

first or second purchase cannot, without more, take this case

out of the heartland of drug distribution cases. Application

Note 3 to the relevant conduct Guideline (s 1B1.3) anticipates

that law enforcement agents may wait until a defendant has

made multiple sales before arresting him:

For example, where the defendant engaged in three drug

sales of 10, 15, and 20 grams of cocaine, as part of the

same course of conduct or common scheme or plan, ...

the total quantity of cocaine involved (45 grams) is to be

used to determine the offense level even if the defendant

is convicted of a single count charging only one of the

sales.

U.S.S.G. s 1B1.3, Application Note 3. Repeat purchases

preceding an arrest are a common and legitimate law enforce-

ment tactic. As the district court acknowledged in this very

case, "the government may need to engage in a number of

transactions with low level street drug merchants in order to

find the source of the drugs." Nor is it apparent how

aggregation of the quantities of drugs that Webb sold to the

police might overstate his offense level, for he crossed the 50-

gram sentencing threshold in a single sale.

The Commission has recognized one situation in which use

by the police of a legitimate law enforcement tactic might

warrant a departure from the Guidelines: the Commission

authorizes departure when the police in a reverse sting sell

drugs at an artificially low price and thereby lead a defendant

to purchase "a significantly greater quantity ... than his

available resources would have allowed" him to buy at the

market price. U.S.S.G. s 2D1.1, Application Note 15. We

need not speculate about what other kinds of police conduct

might warrant a departure; it suffices to say that the actions

of the police in this case do not constitute such a mitigating

circumstance. There is no claim and no evidence in this case

that the police overpaid for the drugs or in any other way led

Webb to commit crimes beyond those that he otherwise would

have committed. There being nothing in the record to sug-

gest that the conduct of the police makes this case "special, or

unusual," Koon, 116 S. Ct. at 2045, we hold that the district

court abused its discretion by departing from the Guidelines.

III. CONCLUSION

As the foregoing account clearly shows, Judge Sporkin not

only abused his discretion in sentencing the defendant in this

case, he did so knowingly; indeed, he expressly invited the

court of appeals to reverse his decision. In this way Judge

Sporkin more than expressed his disagreement with the law

he is sworn to uphold, which he could have done in obiter

dicta; he wreaked havoc in the administration of justice in

this case. And in the end, the only result is grief on all sides:

The United States Attorney and the Federal Public Defender

each had to write learned briefs and this court had to hear

argument and write an opinion--all at considerable expense

to the public; the defendant had his hopes raised, inevitably

to be dashed; and the decision of the district court had to be

reversed. Accordingly, we remand this case for the district

court to resentence the defendant within the Guideline range

of 70-87 months.

So ordered.