United States v. Harold G. Miller

MERRITT, Chief Judge,

dissenting.

The problem before us arises from the need to interpret the Sentencing Guidelines regarding relevant uncharged conduct and the aggregation of uncharged offenses in light of the superior legal principles of the enabling legislation authorizing the Guidelines and the constitutional provisions regarding notice, self-incrimination, confrontation, waiver, and due process.

The one-count information in this case charges that the defendant “did willfully ... conspire, confederate and agree with other persons to distribute approximately one and one-quarter ounces [35.5 grams] of cocaine” — an offense calling for between 15 and 21 months incarceration under the Sentencing Guidelines. Attempting to follow the letter of the Sentencing Guidelines and the commentary issued by the Sentencing Commission, our Court affirms a sentence including more than three additional years of incarceration (60 months) imposed for a crime (distributing 1,169.5 grams) for which the defendant has never been convicted or even charged. The problem is that such a sentence, like the commentary of the Sentencing Commission itself, misinterprets the enabling legislation authorizing the promulgation of the Guidelines. And, by aggregating unindicted, unconvict-ed crimes with the one crime for which the defendant was convicted, the sentence also violates fundamental principles of due process. In addition, the sentencing judge, in a valiant effort to follow Guideline procedures, violated Miller’s due process rights by failing to inform him adequately of— and misleading him about — the grave risks he faced in the presentence investigation.

The provision of the guideline enabling legislation authorizing “incremental” penalties plainly requires conviction of the offense for which the sentence is imposed. *1330 In 28 U.S.C. § 994(l) (1988), 1 Congress allows adding an “incremental penalty” where, but only where, a defendant is “convicted of multiple offenses committed in the same course of conduct,” not where a defendant is convicted only of a single offense during a time period in which he may also have committed other offenses for which he is not charged and convicted. The Guidelines should not be read to exceed the authority granted in the enabling legislation.

The trial judge in this case did just that. He sentenced the defendant relying on the Base Offense Level for 1,169.5 grams of cocaine rather than the Base Offense Level for a sale of 35.5 grams, the only crime charged against the defendant and the only crime to which defendant pleaded guilty. In doing so, the District Court followed the Guidelines for determining what the Base Offense Level is for the crime of conviction. Section 1B1.3 instructs the judge to increase the Base Offense Level for certain “relevant conduct.” Part of relevant conduct for certain crimes, including defendant’s, is any other conduct that was part of the same “scheme or plan” as the crime of conviction. Application note 2 says that § lB1.3(a)(2) “applies to offenses of types for which convictions on multiple counts would be grouped together ...; multiple convictions are not required.” Guideline § 1B1.3, comment, (n. 2). Most circuits, including our own, have capitulated to the language of this application note without looking at the legal basis behind it and have allowed defendants automatically and mechanically to be sentenced under the Guidelines for crimes not charged or convicted. United States v. Sailes, 872 F.2d 735 (6th Cir.1989); see also United States v. Blanco, 888 F.2d 907 (1st Cir.1989); United States v. Guerrero, 863 F.2d 245 (2d Cir.1988); United States v. Taplette, 872 F.2d 101 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 128 , 107 L.Ed.2d 88 (1989); United States v. White, 888 F.2d 490 (7th Cir.1989); United States v. Mann, 877 F.2d 688 (8th Cir.1989); United States v. Restrepo, 903 F.2d 648 (9th Cir.1990), rev’g on reh’g 883 F.2d 781 (9th Cir.1989); United States v. Frederick, 897 F.2d 490 (10th Cir.1990); United States v. Alston, 895 F.2d 1362 (11th Cir.1990). All of these cases overlook the fact that the Sentencing Commission exceeded its statutory and constitutional authority in writing this application note.

To permit this reading of the Guidelines not only exceeds the scope of the enabling legislation, but it also violates principles of constitutional procedure requiring that “no person shall be held to answer for a ... crime, unless on a presentment or indictment ... nor be deprived of ... liberty ... without due process of law” (Amendment V) and requiring that the accused be “informed of the nature and cause of the accusation,” be accorded the right of trial by jury and the rights of confrontation and compulsory process (Amendment VI). While the defendant in this case waived some of these important constitutional protections as to the lone count against him, he did not validly waive those rights as to all crimes for which the government might at some time indict him. If the government wants to imprison the defendant as a seller of 1,169.5 grams of cocaine, it must charge, try, and convict him of that offense and establish its proof beyond a reasonable doubt, or have him validly waive his rights and plead guilty to the charge. To do anything less violates due process of law. See In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068, 1072 , 25 L.Ed.2d 368 (1970) (“[T]he Due Process Clause protects the accused against conviction except upon *1331 proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he [or she] is charged.”). Here the defendant has neither pleaded guilty nor been tried for the crime for which he was sentenced.

In addition to other problems with this case, the defendant did not receive adequate notice that his crime was distributing over 1,000 grams of cocaine or that this crime called for 60 months of imprisonment. The Constitution requires that defendants receive fair notice of the allegations against them. This requirement appears not once, but twice. The Fifth Amendment provides for fair notice by “presentment or indictment.” The Sixth Amendment similarly requires that a defendant “be informed of the nature and cause of the accusation.” This repetition of the right indicates the significance that the Founders attached to the right to receive fair notice of the crime that a defendant must defend against. Because the information in this case did not adequately inform the defendant of the “nature and cause of the accusation” that would be made against him, it violated the fundamental requirement of notice guaranteed by the Bill of Rights.

The notice requirement not only stems from the specific language of the Constitution, but it also forms the cornerstone of due process. Even in the days before the Supreme Court began to apply other provisions of the Bill of Rights to state court proceedings, the Court recognized two requirements that the Fourteenth Amendment imposed on the states: that the trial court have jurisdiction, and that

there shall be notice and opportunity for hearing given the parties. Subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law established by civilized countries, this court has up to this time sustained all state laws, statutory or judicially declared, regulating procedure, evidence and methods of trial, and held them to be consistent with due process of law.

Twining v. New Jersey, 211 U.S. 78, 111 , 29 S.Ct. 14, 24 , 53 L.Ed. 97 (1908) (citations omitted) (right against self-incrimination need not be available in state court trial). Justice Cardozo, still under the pre-incorpo-ration doctrine, wrote that

trial by jury may be abolished. Indictments by a grand jury may give way to informations by a public officer. The privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state. What may not be taken away is notice of the charge and an adequate opportunity to be heard in defense of it.

Snyder v. Massachusetts, 291 U.S. 97, 105 , 54 S.Ct. 330, 332 , 78 L.Ed. 674 (1934) (citations omitted). As Justice Black wrote,

No principle of due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.

Cole v. Arkansas, 333 U.S. 196, 201 , 68 S.Ct. 514, 517 , 92 L.Ed. 644 (1948). Thus, in light of the real charges for which the defendant was later sentenced, the information in this case violated the general principles of due process requiring fair notice to the defendant of the nature of the crime against which he must defend himself. The defendant was misled by the charge and the course of the proceedings into believing that his crime was of a smaller magnitude than the Sentencing Guidelines mandate.

Almost the entire spectrum of Fifth and Sixth Amendment rights granted to the accused are denied by the literal reading and enforcement of application note 2 of the Guidelines because, according to its procedure, a defendant may never be informed of the specific charge against him until the probation report issues. An indictment merely opens the game of defining the crime, which will be played out later in the probation office and the sentencing hearing. The real charge for which the defendant will be sentenced will *1332 be drawn up in the probation office, and the sentence will be imposed without the right of confrontation at the sentencing hearing by the court on the basis of hearsay information. Instead of an indictment including all lesser included offenses of the crime charged, the Guidelines say that the sentencing court should include all “greater included offenses” as well.

In comparison, the old sentencing system was completely different from the mechanistic approach of the Guidelines. Although trial judges sentencing defendants before the Guidelines could receive information about additional crimes like that presented to the District Court, they were not positively directed by law to send a defendant to jail for it. They could allow it to influence their judgment in a limited way, or they could ignore it — perhaps because it came from the defendant’s own mouth, perhaps because it was hearsay evidence — and not allow it to affect the sentence at all. Of course, in the days before the Guidelines, trial judges could decide to sentence a defendant like Miller to no imprisonment or parole at all, or to one hour, or to one week. “The ... contention that the [amalgamation] approach ... is consistent with pre-Guideline sentencing practice is, therefore, wrong.” Restrepo, 903 F.2d at 657 (Pregerson, J., dissenting). The Guidelines now direct a range flatly restricting the sentencing court’s best judgment. We should not allow this change to authorize sending a person to prison for an additional 1, 3, 10, or 30 years for uncharged and unproved conduct because the Guidelines permit the government, probation authorities or the court to go outside the indictment and to look for other crimes to combine with the one charged and proved. Rather, judges should use this information as they did before the Guidelines, that is, to determine how to sentence the defendant within the range, not to augment the Base Offense Level.

This case is also troubling because the trial court — again trying to follow the Guideline sentencing procedure — seriously misled the defendant into making statements to the probation officer which added more than three years to his time. Although the defendant waived his right to counsel, the trial court — whatever the Guidelines may suggest to the contrary— still had obligation to instruct the defendant about the possible hazards he faced in the rest of the proceeding. Instead, the trial court told the defendant to “be honest and candid with the probation officer” because “that person is very helpful,” and “you will be working with that person for a long time.” J.A. at 25. Even if the presen-tencing meetings with probation officers contemplated by the Guidelines fall under Minnesota v. Murphy, 465 U.S. 420 , 104 S.Ct. 1136 , 79 L.Ed.2d 409 (1984) (no Miranda-type warnings necessary for meeting with post-imprisonment probation officer), instead of Estelle v. Smith, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981) (defendant must have Miranda warnings before presentence investigation by psychiatrist), the uncounseled defendant in this case would have no idea that he could invoke his right to remain silent in front of the probation officer, and no idea of the severe legal consequences of answering all the probation officer’s questions. The trial judge disspelled any notion that the defendant may have had that he could invoke the privilege. Instead of telling him that he could remain silent, the trial judge affirmatively commanded the defendant to speak freely and candidly — to bare his soul. If the defendant had not followed these instructions, he would not face the Guidelines sentence that the majority affirms today.

The Guidelines obviously invite the prosecutor to indict for less serious offenses which are easy to prove and then expand them in the probation office. I note with concern, however, that the general Guidelines practice of aggregation of uncharged crimes will eventually harm prosecutors who are trying to follow the Sentencing Commission’s policy in favor of jailing defendants for longer than the particular crime charged permits. First, it will destroy a defendant’s willingness and incentives to plead guilty and to cooperate with probation officers. If neither the prosecution nor the defendant can predict the ex *1333 tent of a defendant’s sentence on the basis of the crime charged, more defendants will take a chance on an acquittal by a jury rather than subject themselves to the same sentence (with a possible two point reduction for accepting responsibility for the crime) after a guilty plea. Second, if United States Attorneys pursue the dual Guidelines practices of aggregation without notice plus coerced self-incrimination and sentencing without confrontation, and if this Court or the Supreme Court begins to realize the multiple constitutional violations that the current Guidelines procedure raises, then those offices will spend a large share of their time defending the United States against habeas corpus suits under 28 U.S.C. § 2255 , rather than prosecuting new criminals for new crimes.

. The statute authorizes the Sentencing Commission to

impos[e] an incremental penalty for each offense in a case in which the defendant is convicted of—

(A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and

(B) multiple offenses committed at different times....

28 U.S.C. § 994 (1 )(1) (1988) (emphasis added). No language of the enabling act allows incremental penalties for unconvicted offenses either “in the same course of conduct" or “at different times.”