stating that application of the Guidelines delegates responsibility to probation officers and reduces the responsibility of the judge for the result
How later courts described this case
- stating that application of the Guidelines delegates responsibility to probation officers and reduces the responsibility of the judge for the result
- Guidelines are not mandatory when the court determines at the outset that a legitimate aggravating or mitigating circumstances ... [is] not adequately taken into consideration by the Guidelines
- Sentencing Commission contravened explicit statutory and legislative directives in promulgating procedures governing departures from Guidelines
Written by the judges who cited it.
The opinion
KENNEDY, Circuit Judge,
concurring and dissenting.
I agree with the majority that the plaster of Paris in which the bag of cocaine was concealed should not be included in the weight of the controlled substance in determining the Guideline sentence in this case. However, the District Court also imposed the sentence it did because under the Guidelines the weight of the controlled substance which defendant bargained for is part of the relevant conduct to be considered in fixing the offense level. Unlike the majority, I find no error in the District Court’s computation of the base offense level of 26.
I am unable to agree with the majority that the sentencing judge has the discre *1052 tion to impose a sentence considering only the factors mentioned in 18 U.S.C. § 3553 (a) and may disregard the direction of part (b) that:
The court shall impose a sentence of the kind, and within the range, referred to subsection (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 by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. (Emphasis added.)
Subsection (a)(4) provides:
the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. § 994 (a)(1) and that are in effect on the date the defendant is sentenced.
Thus, although under subsection (a) this is only one of the factors the sentencing court is to consider, under (b) this factor overrides all the other factors where it applies. The majority seeks to read subsection (b) as creating a “rebuttable presumption,” but does not explain how it reaches that conclusion in view of the mandatory word “shall.” The only exception in the statutory directive to impose the Guideline sentence is if there is an “aggravating or mitigating circumstance of a kind, or to a degree” not taken into account by the Guidelines. Here, there is no such aggravating or mitigating circumstance. The factors which the majority states are to be treated as aggravating factors are instead factors used to determine the base offense level.
The majority argues that the sentencing court should first consider whether there is such an “aggravating or mitigating circumstance,” that is, one not taken into account in setting the Guideline. I do not see how this can be done without first determining the Guidehne sentence. Until the judge has done so, it would seem impossible to determine whether the mitigating or aggravating circumstance had in fact been taken into account. For example, if the use of a gun, or the taking of a hostage is the aggravating circumstance, the judge clearly must know whether that has been taken into account in setting the Guideline.
What the majority really seems to be arguing is that following the Guidelines may result in a sentence far greater than necessary to comply with the purpose for which sentence is to be imposed as set forth in subsection (a)(2). Many would agree that application of the Guidelines appears to result in sentences that are too severe or too lenient and that Guideline directives that do not permit the sentencing judge to consider factors historically taken into account at sentencing, such as family history and responsibilities, lack of education or opportunity, etc., create serious disparity. However, Congress determined that discretion should be withdrawn from judges and that Sentencing Guidelines which by their terms are largely mandatory should be used instead.
Defendant’s negotiation for, and attempt to purchase, 500 grams of cocaine is “relevant conduct” which contributes to setting the base offense level under Guideline section 1B1.3. Hence, since it is taken into account in fixing the base offense level, it cannot be an “aggravating factor” not taken into account. Defendant pled guilty to possession of cocaine with intent to distribute. Section 2D 1.1 is the most applicable Guideline section. Application Note 12 to section 2D1.1 makes clear that the specific quantity of drugs mentioned in the indictment is not controlling. 1 That note states that “[tjypes and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See § lB1.3(a)(2) (Relevant Conduct) ... If the offense involved negotiation to traffic in a controlled substance, see Application Note 1 of the Commentary to § 2D1.4.” If we turn then to Application Note 1 we find that it provides:
If the defendant is convicted of an offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount.
*1053 Although that note is located under a heading “Attempts and Conspiracies,” as the Fifth Circuit points out in United States v. Garcia, 889 F.2d 1454 (5th Cir.1989), ce rt. denied, — U.S.-, 110 S.Ct. 1829 , 108 L.Ed.2d 958 (1990), its application is not limited to attempts and conspiracies. The court notes that the admittedly appropriate Guideline section specifically directs the sentencing court to that note if the offense of conviction involves “negotiation to traffic” as it did here. In Garcia defendant was convicted of distributing eight ounces of cocaine. However, he had negotiated for the sale of sixteen ounces and was capable of producing sixteen ounces. The court held that the District Court had appropriately used the sixteen ounces to determine the offense level.
In United States v. Perez, 871 F.2d 45 (6th Cir.), cert. denied, 492 U.S. 910 , 109 S.Ct. 3227 , 106 L.Ed.2d 576 (1989), defendant was convicted of various drug counts, among them possession with intent to distribute 500 or more grams of cocaine. Perez argued that the Guidelines were improperly applied and particularly disputed the selection of the base level. We held:
The district court properly set the base level at 28 given the amount of cocaine involved. Under the sentencing guidelines, the amount of the drug being negotiated, even in an uncompleted distribution, shall be used to calculate the total [ajmount in order to determine the base level.
Id. at 48 (emphasis added).
Again, in United States v. Sailes, 872 F.2d 735 (6th Cir.1989), we held that the District Court properly aggregated the total quantity of drugs involved to determine the appropriate sentence despite the defendant’s plea of guilty only with respect to a smaller amount. Defendant Jo Ann Sailes was charged with aiding and abetting possession, with intent to distribute, cocaine. Two quantities of drugs (36 grams and 780 grams) were found in her home, placed there by the son whom she knew to be in the drug business. She knew of the smaller quantity and pled guilty to possession with intent to distribute that amount. Although Mrs. Sailes was unaware of the presence of the larger quantity, the District Court nonetheless found that her son’s possession of the two quantities was part of the same course of conduct or common scheme or plan, and therefore, applying section 1B1.3, the Court held that since the aiding and abetting of the son’s possession of the larger amount was part of the same course of conduct or common scheme or plan as the offense of conviction, the larger amount had to be included in the base level.
Yet again, in United States v. Smith, 887 F.2d 104 (6th Cir.1989), we applied the relevant conduct provisions of the Guidelines to a drug case. There we held that the District Court erred in failing to include in the base offense level drug quantities from a dismissed count. This Court ruled:
[W]e hold that the district court erred by holding “that the conduct necessary to support inclusion in the Base Offense Level must be established by a finding of the jury, a plea of guilty confirmed by a finding of guilt in open court, or a stipulated offense other than the offense of conviction on a plea of guilty or nolo contendere.” In its sentencing determination, the district court should have considered all conduct that was part of the same course of conduct or a common scheme or plan as the offense of conviction — including possession of the drugs charged in Count Two.
Id. at 108 (emphasis added; footnote omitted). See also United States v. Ykema, 887 F.2d 697, 700 (6th Cir.1989) (“The commentary to Sec. 2D1.1, as well as an interpretation of the words of Secs. lB1.2(a) and IB.1.3 (‘relevant conduct’), can only mean *1054 that a judge can take all conduct into account in sentencing — not just the conduct supporting a specific conviction” (emphasis added)), cert. denied, — U.S. -, 110 S.Ct. 878 , 107 L.Ed.2d 961 (1990).
Our decisions in Perez, Sailes, Smith, and Ykema , which I believe we should follow and apply here, are in accord with decisions of the other circuit courts of appeal, which have uniformly held in drug cases that the base offense level should be determined by the amount of drugs in the defendant’s relevant conduct, not just amounts in the offense of conviction or charged in the indictment. See, e.g., United States v. Lawrence, 915 F.2d 402, 406-08 (8th Cir.1990); United States v. Restrepo, 903 F.2d 648, 652-53 (9th Cir.1990); United States v. Rutter, 897 F.2d 1558, 1560-62 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 88 , 112 L.Ed.2d 60 (1990); United States v. Alston, 895 F.2d 1362, 1369-70 (11th Cir.1990); United States v. White, 888 F.2d 490, 498 (7th Cir.1989); United States v. Blanco, 888 F.2d 907, 909-11 (1st Cir.1989); United States v. Williams, 880 F.2d 804, 805-06 (4th Cir.1989); United States v. Fernandez, 877 F.2d 1138, 1141-42 (2d Cir.1989); United States v. Taplette, 872 F.2d 101, 105 (5th Cir.), cert. denied, — U.S.-, 110 S.Ct. 128 , 107 L.Ed.2d 88 (1989).
In summary, under section 1B1.3 where the Guidelines specify more than one base offense level the base offense level is to be determined on the basis of (a) “all acts ... committed ... by the defendant ... during the commission of the offense of conviction, in preparation for that offense, ... or that otherwise were in furtherance of that offense,” U.S.S.G. § lB1.3(a)(l), or (b) all “acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction,” if the offenses are “of a character for which section 3D1.2(d) would require grouping of multiple counts.” U.S.S.G. § 1B1.3(a)(2). The applicable Guideline here specifies more than one base offense level. The offense of conviction, for which section 2D1.1 is applicable, requires grouping under section 3D1.2(d). The defendant’s attempt to possess the half kilogram of cocaine was clearly part of the same course of conduct or common scheme or plan as the offense of conviction: possession of the 85 grams with intent to distribute. Likewise, his attempt to possess the 500 grams was committed in furtherance of and/or in preparation for the offense of conviction. Thus, it is “relevant conduct” under the Guidelines and must be considered in sentencing. 2
The majority argues that since the general theory of the Guidelines is limited to the “offense of conviction,” relevant conduct to be taken into account in determining the base offense level must at least be limited to crimes of the same character as the substantive offense of conviction. However, the Guidelines don’t speak of the “same character.” Rather, they require that the other illegal conduct be in “preparation for” or in “furtherance of” the offense of conviction or, for drug offenses like the one in this case, “part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S. S.G. § 1B1.3(a)(1) & (a)(2).
Neither do the cases support the majority’s contention that conduct must be “of the same character” in order to qualify as relevant conduct for sentencing purposes. That contention was rejected by this Court in United States v. McDowell, 902 F.2d 451 (6th Cir.1990), where the Court held that *1055 relevant conduct included conduct that was clearly not “of the same character” as the offense of conviction. There the defendant pled guilty to conspiracy to maintain a place for the distribution of cocaine and crack in exchange for dismissal of several substantive offenses, including distribution within 1,000 feet of a school. We held that the District Court should have considered the fact that the defendant operated his crack house within 1,000 feet of two schools as “relevant conduct” in calculating the defendant’s base offense level. We recognized that the conduct for which the defendant was convicted, conspiracy, is of a different nature than the proximity-to-schools conduct. Indeed, two different guidelines apply. See sections 2D1.4 (conspiracy) and 2D 1.3 (distribution within 1,000 feet of schools) (now deleted and consolidated with section 2D1.2). Nevertheless, this Court held “[t]hat the defendant ran a crack house and that he did so in close proximity to school buildings is certainly ‘relevant conduct’ within the meaning of section 1B1.3 of the guidelines.” Id. at 454 . 3
The legislative history does not, in my opinion, suggest that the judge should first “determine at the outset of the sentencing process whether the case presents circumstances ‘not adequately taken into consideration’ by the Commission.” Majority Opinion at 1045. Referring to section 3553(b), the Senate report explains:
The bill requires the judge, before imposing sentence, to consider the history characteristics of the offender, the nature and circumstances of the offense, and the purposes of sentencing. He is then to determine which sentencing guidelines and policy statements apply to the case. Either he may decide that the guideline recommendation appropriately reflects the offense and offender characteristics and impose sentence according to the guideline recommendation or he may conclude that the guidelines fail to reflect adequately a pertinent aggravating or mitigating circumstance and impose sentence outside the guidelines.
S.Rep. No. 225, 98th Cong., 2d Sess. reprinted in 1984 U.S.Code Cong. & Admin. News 3182, 3235.
It is true that the judge is to consider the purposes of sentencing before determining which sentencing Guidelines or policy statements apply. I read that direction not as excusing the judge from applying the Guidelines, but to apply the appropriate Guideline.
Certainly, this legislative history does not provide a basis for ignoring the mandatory language of section 3553(b) that the court “shall impose a sentence of the kind and within the range” referred to in the Guidelines.” (Emphasis added.)
Implicit in the majority’s holding is unhappiness with the Sentencing Commission’s departure from “charge offense” sentencing which it applies to most crimes, and “real offense” sentencing which the Guidelines apply in drug, embezzlement and other cases when the offense level is determined largely on the basis of the quantity of a substance involved or aggregate dollar amounts. There the Guidelines use amounts that “were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S. S.G. § lB1.3(a)(2). The majority finds insufficient basis for this difference in treatment of these types of crimes. One may disagree with the approach taken, but it is *1056 hardly unconstitutional. 4 The Commission suggests that anything else would allow what is fundamentally the same conduct to receive different treatment depending on how the underlying offense or scheme is parcelled with remaining counts. This is a rational basis. As the Seventh Circuit pointed out in a case similar to the one before us, United States v. White, 888 F.2d 490 (7th Cir.1989), it makes little sense to have defendant’s sentence depend on how much of the cocaine defendant intended to possess was actually in the package. The Drug Enforcement Administration could decide defendant’s sentence by the amount of real cocaine it put in the package. There is always a risk that a controlled sale will fail for some reason and the purchaser get away with the drugs. The seriousness of defendant’s unlawful conduct is neither increased nor decreased by what happened to be in the package. Here it is simply fortuitous that Davern actually possessed only 85 grams of cocaine rather than the 500 grams he sought and believed he had purchased.
Finally, the majority suggests that “the guideline enabling act may not permit an increased penalty for conduct outside the offense of conviction.” Sentencing courts have historically taken into account the circumstances surrounding the offense of conviction and if it was part of a scheme, courts have considered the entire scheme. In embezzlement cases the total amount embezzled, even if a defendant was not charged with each act, was considered. In drug cases courts considered whether it was dealing with an isolated sale, a sale to sustain a habit, or a sale by someone who made his or her livelihood from drugs. The Guidelines, by requiring that the drug quantities be related to the same course of conduct, in preparation for the offense of conviction, etc., limit rather than enlarge the court’s ability to consider other conduct. I see nothing in the enabling act which prohibited the Sentencing Commission from taking the approach it did.
Accordingly, I respectfully dissent.
ORDER.
Sept. 26, 1991.
Before: MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, and SILER * , Circuit Judges.
A majority of the Judges of this Court in regular active service have voted for rehearing of this case en banc. Sixth Circuit Rule 14 provides as follows:
The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket as a pending appeal.
Accordingly, it is ORDERED that the previous decision and judgment of this court is vacated, the mandate is stayed and this case is restored to the docket as a pending appeal.
The Clerk will direct the parties to file supplemental briefs and will schedule this case for oral argument as soon as practicable.
. "The Sentencing Commission’s application notes are contemporaneous explanations of the Guidelines by their authors, entitled to substantial weight.” United States v. White, 888 F.2d *1053 490, 497 (7th Cir.1989); see also United States v. Rutter, 897 F.2d 1558, 1561 (10th Cir.), cert. denied, — U.S.-, 111 S.Ct. 88 , 112 L.Ed.2d 60 (1990). Indeed, the commentary that accompanies the guideline sections "is to be treated as the legal equivalent of a policy statement,” U.S. S.G. § 1B1.7, and Congress has mandated that policy statements of the Commission be considered in sentencing. 18 U.S.C. § 3553 (a)(5).
. The Commentary to the Relevant Conduct section makes clear that circumstances like those presented here are included. See U.S.S.G. § 1B1.3, comment, (backg’d) (“Conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.... [T)he applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged.... [I]n a drug distribution case, quantities ... of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.”).
The majority rely on the use of the word "may” in Application Note 12 to § 2D1.1 to support their argument that the guidelines do not require the sentencing judge to consider relevant conduct. See Majority Opinion at 1049-50. This reliance is untenable. The relevant conduct guideline itself clearly directs that the base offense level "shall be determined on the basis of” relevant conduct. U.S.S.G. § lB1.3(a) (emphasis added). In addition, the *1055 commentary to that section indicates that "quantities and types of drugs not specified in the count of conviction are to be included in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction.” U.S.S.G. § 1B1.3, comment, (backg'd) (emphasis added). Furthermore, our previous decisions plainly instruct that application of Guideline 1B1.3 is mandatory. See United States v. Miller, 910 F.2d 1321, 1327 (6th Cir.1990), ce rt. denied, — U.S.-, 111 S.Ct. 980 , 112 L.Ed.2d 1065 (1991) ("Sentencing Guideline § lB1.3(a)(2) requires consideration of uncharged relevant conduct” (emphasis added)); Perez, 871 F.2d at 48 ("the amount of the drug being negotiated, even in an uncompleted distribution, shall be used to calculate the total [a]mount in order to determine the base level” (emphasis added)).
. See also United States v. Bedoya, 878 F.2d 73 (2d Cir.1989) (upheld inclusion of entire 21 kilograms of cocaine involved in a conspiracy charge, which had been dismissed in exchange for defendant’s plea to possession with intent to distribute 500 + grams of cocaine).
. This Court has said as much. See United States v. Miller, 910 F.2d 1321, 1329 (6th Cir.1989) (Martin, J., concurring), cert. denied, — U.S. -, 111 S.Ct. 980 , 112 L.Ed.2d 1065 (1991); Smith, 887 F.2d at 108 & n. 5.