Petition for Writ of Certiorari — Boyd v. United States

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= _ {1)

91-183

Supreme Court, U.S

FILED

NO. JUL 29 199?

awa = — =e CLERK

IN THE GFFiGe GF THE

SUPREME COURT OF THE UNITED

OCTOBER TERM, 1991

CHARLES DAVID BOYD,

VS.

UNITED STATES OF AMERICA,

STATES

Petitioner,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT IN A CRIMINAL

H. LOUIS SIRKIN

[Counsel of Record]

EDMUND McKENNA

CASE

SIRKIN, PINALES, MEZIBOV &

SCHWARTZ

920 Fourth & Race Tower

105 West Fourth Street

Cincinnati, Ohio 45202

Telephone (513) 721-4876

Attorneys for Petitioner

COURT INDEX PRESS, IN¢ 215 EF. Ninth Street. Cincinnati, Ohio 45202

513) 241-1450

QUESTIONS PRESENTED

I. Did the United States Court of Appeals for the Sixth

Circuit deny Petitioner due process and equal protection of

the law by refusing to address his claim of outrageous govern-

mental conduct under the doctrine of plain error as that doc-

trine is contained in Rule 52 of the Federal Rules of Criminal

Procedure and Rule 103 of the Federal Rules of Evidence.

II. Was the government's conduct in this case so out-

rageous that it denied Petitioner due process of law?

III. Does the Sentencing Reform Act unconstitutionally

permit law enforcement officers to determine a criminal

defendant’s sentence in violation of the doctrine of separation

of powers?

STATEMENT OF CORPORATE AFFILIATION

No corporations are involved in this matter.

Ill

TABLE OF CONTENTS

Page

Boog 8 eS Ss yt) I

STATEMENT OF CORPORATE AFFILIATION ..... ul

0g | VI

ES ]

JURISDICTIONAL STATEMENT .................. 2

Ee 2

CONSTITUTIONAL PROVISIONS AND

UP PE WORELWELED wee 2

Fifth Amendment, United Constitution............. 2

Title 21, United States Code § 84]l(a)............... 2

Title 21, United States Code § 843(b)............... 3

Title 21, United States Code § 848 ................. 3

Title 28, United States Code § 991 ................. 3

Rule 52 of Federal Rules of Criminal Procedure ...... 5

Rule 103 of The Federal Rules of Evidence .......... 5

eee GE BEES GAGE ............. 0.00088. 7

United States v. Boyd, Slip Op. No. 90-3166 (6th

ec eke te eee 8

REASONS FOR GRANTING THE WRIT ............ 1]

I. WHEN A FEDERAL COURT OF APPEALS

REFUSES TO ADDRESS AN APPELLANT'S

CONTENTION THAT PLAIN ERROR OC-

CURRED AT TRIAL, THE COURT OF AP-

PEALS HAD DEPRIVED THE APPELLANT

OF DUE PROCESS OF LAW AND IS IN

VIOLATION OF FEDERAL LAW............ ll

= Page

United States v. Robinson, 794 F.2d 1132 (6th Cir.

1986) reversed on other grounds, 485 U.S. 25, 108

RA NOU 4506-0 os vn baa e Senate dance « ll

United States v. Williams,

ae ee Be Cte Cac TODD i So kee ck cece, ll

United States v. Jones, 647 F.2d 696 (6th Cir. 1981),

cert. denied, 454 U.S. 898, 102 S.Ct. 399 (1981) ... Li

United States v. Russell,

411 U.S. 423, 93 S.Ct. 16387 (1973) ..............; ll

Chapman v. California,

306 U.S. 16, 87 S.C. G34 (1067)... .. 5 ss. ll

Kotteakos v. United States,

328 U.S. 750, 66 S.Ct. 1239 (1946) ....... 0000.0... 12

Il. THE GOVERNMENT'S CONDUCT IN THIS

CASE WAS SO OUTRAGEOUS THAT IT

DENIED PETITIONER DUE PROCESS OF

LAW AS GUARANTEED BY THE FIFTH

AMENDMENT TO THE UNITED STATES

Ce Rc os vc ocd cc ha eee eee kAuk 14

United States v. Russell.

411 U.S. 423, 93 S.Ct. 1637 (1973) .............. 14

United States v. Emmert.

829 F.2d 805 (9th Cir. 1987) .. 7... ee, 14

United States v. Kinkle,

631 F.Supp. 423 (E.D. Pa. 1987) ................ 14

United States v. Smith,

802 F.2d 1119 (9th Cir. 1986) ................... 14

United States v. Porter,

709 F.Supp. 770 (E.D. Mich. 1989) ........ ae 14

Page

United States v. Gardner,

658 F.Supp. 1573 (W.D. Pa. 1987)............... 15

NN a oa 0h. Sew kn FEA ee eS ee 15

8 gO es on rere 15

en" g ) 15

RR ee OS 8 ae ee eee 15

1B RG RE ge ) 15

RS ee ee ee 15

United States v. Brown,

Gas F.20 [S07 (7th Gir. 1OBD) ......... 2... oan. 16

United States v. Wylie,

625 F.2d 1371 (9th Cir. 1980), cert. denied sub.

nom. Perluss v. United States, 449 U.S. 1080, 101

ee cca yc cmc k soe e wus as cues 16

United States v. Ramirez,

70 © ee oe (oem Cit. FORD)... .. 2. ee es 16

United States v. Twigg,

588 F.2d 373 (3rd Cir. 1978) .................... 16

United States v. Bogart,

783 F.2d 1428 (9th Cir. 1986) .................. 17, 18

United States v. Wingender,

790 F.2d 802 (9th Cir. 1986) .................... 17

Olmstead v. United States,

mara U.m. Gan, Se Ok. SOO (IGRR) ..... 2... we. 17

United States v. Johnson,

oe ee ee ee Ge, BO) 2... ee 17

United States v. Robinson,

763 F.2d 778 (6th Cir. 1985) ................ ees i

VI

Page

People v. Isaacson,

44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78

(1978)... see IE. ca. 18

Il. THE SENTENCING REFORM ACT UN-

CONSTITUTIONALLY PERMITS LAW EN-

FORCEMENT OFFICERS TO DETERMINE

A CRIMINAL DEFENDANT'S SENTENCE

IN VIOLATION OF THE DOCTRINE OF

SEPARA TION OF Pabwime. ............0.. 20

Mistretta v. United States;

488 U.S. 361, 109S.Ct. 647 (1989) ............ .. 20

United States v. Russell,

411 U.S. 435, See cs. ......... 9

CONCLUSION |. es it, Ce

Vil

TABLE OF AUTHORITIES

CASES Page

Chapman vy. California,

me a. ee, ee uk, Oe CIOBT).... 2. ee ee cs ll

Kotteakos v. United States,

328 U.S. 750, 66 S.Ct. 1239 (1946) ............... 12

Mistretta v. United States,

488 U.S. 361, 109 S.Ct. 647 (1989) ............... 20

Olmstead v. United States,

S77 U.S. 438, 46 S.Ct. 564 (1988)... .. 2... 6... 17

People v. Isaacson,

44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78

(wa ni ey oa an a eres 18

United States v. Bogart,

783 F.2d 1428 (9th Cir. 1986) 2.222 17, 18

United States v. Boyd, Slip Op. No. 90-3166 (6th

Cir. April 30, 1991).........0....... yey ewes 4

United States v. Brown,

635 F.2d 1207 (7th Cir. 1980) .... - 16

United States v. Emmert,

829 F.2d 805 (9th Cir. 1987)... 0.2... ae

United States v. Gardner,

658 F.Supp. 1573 (W.D. Pa. 1987)... 0... ... |4

United States v. Johnson,

855 F.2d 299 (6th Cir. 1988)... 0 17

United States v. Jones, 647 F.2d 696 (6th Cir. 1981),

cert. denied, 454 U.S. 898, 102 S.Ct. 399 (1981) ll

United States v. Kinkte,

631 F.Supp. 423 (E.D. Pa. 1987) 22.0020... 14

Vill

Page

United States v. Porter,

709 F.Supp. 770 (E.D. Mich. 1989) .............. 14

United Sates v. Ramirez, —

i.) AE. 7 Le 3. re 16

United States v. Robinson, 794 F.2d 1132 (6th Cir.

1986) reversed on other grounds, 485 U.S. 25, 108

ee Ee cc Cah evk basse sancesswenes ll

United States v. Robinsun,

763 F.2d 778 (6th Cir. 1985) .................04. 17

United States v. Russell,

411 U.S. 423, 93 S.Ct. 1637 (1973) .......... 11, 14, 20

United States v. Smith,

fe Pill. Le ee 14

United States v. Twigg,

he Fe are 16

United States v. Williams,

ee ee I , OPO, ok ak cu eax dcans ss ll

United States v. Wingender,

790 F.2d 802 (9th Cir. 1986) ................... 17

United States v. Wylie,

625 F.2d 1371 (9th Cir. 1980), cert. denied sub.

nom. Perluss v. United States, 449 U.S. 1080, 101

NT Rte Panay Ca baw a4 x05 16

CONSTITUTIONAL PROVISIONS

Fifth Amendment, United States Constitution ....... 2

STATUTES

Title 21, United States Code § 84]l(a)............... 2,7

21 U.S.C. § 841(b)(B)(ii) 0.2. ce cece eee 7,15

IX

Page

Title 21, United States Code § 843(b)............... Ae

Title 21, United States Code § 848 ................. 2

Title 28, United States Code § 991 ................. 2,15

Spe En oo oa hc hea heise sn anaeeenee’ 2

RULES

Rule 52 of Federal Rules of Criminal Procedure ..... . 5

Rule 103 of The Federal Rules of Evidence .......... 5

SENTENCING GUIDELINES

SPE UE cs GU oe v4 a cc ca Sen end iecsaneeen 15

U.S.S.G. Chapter 4, Part D..... 2... cee 15

U.B.S45. Cieter G, Past A... icc ccsccsccasess 15

IRB Reo SD | ee eee 15

. NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

CHARLES DAVID BOYD,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT IN A CRIMINAL CASE

OPINIONS BELOW

The decision of the United States Court of Appeals for the

Sixth Circuit affirming Petitioner's convictien was entered on

April 30, 1991. The decision was not reported and a copy of

the unpublished opinion is attached. United States v. Boyd,

Slip Op. No. 90-3166 (6th Cir. April 30, 1991) (copy at-

tached; appendix p. la.) No application for rehearing was

filed. The district court’s judgment and commitment order

was entered on February 22, 1990. (Copy attached; appendix

p. 4a.)

bo

JURISDICTIONAL STATEMENT

The decision of the United States Court of Appeals for the

Sixth Circuit affirming Petitioner's conviction was entered

April 30, 1991. The writ of certiorari is requested pursuant to

28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. The Fifth Amendment, United States Constitution,

which provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in ac-

tual service in time of War or pubic danger; nor shall

any person be subject for the same offence to be twice

put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken

for public use, without just compensation.

Titl® 21, United States Code § 841(a), which provides

in part:

to

(a) Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or inten-

tionally —

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, dis-

tribute, or dispense, a controlled substance;

or

bo

to create, distribute, or dispense, or possess

with intent to distribute or dispense, a coun-

terfeit substance.

2. Title 21, United States Code § 843(b), which provides:

(b)

It shall be unlawful for any person knowingly or

intentionally to use any communication facility in

committing or in causing or facilitating the com-

mission of any act or acts constituting a felony

under any provision of this subchapter or sub-

chapter II of this chapter. Each separate use of a

communication facility shall be a separate offense

under this subsection. For purposes of this subsec-

tion, the term “communication facility” means

any and all public and private instrumentalities

used or useful in the transmission of writing,

signs, signals, pictures, or sounds of all kinds and

includes mail, telephone, wire, radio, and _ all

other means of communication.

4. Title 21, United States Code § 848, which provides:

Any person who attempts or conspires to commit

any offense defined in this subchapter shall be sub-

ject to the same penalties as those prescribed for the

offense, the commission of which was the object of

the attempt or conspiracy.

5. Title 28, United States Code § 991, which provides:

(a)

There is established as an independent commnis-

sion in the judicial branch of the United States a

United States Sentencing Commission which shall

consist of seven voting members and one non-

voting member. The President, after consultation

with representatives of judges, prosecuting at-

torneys, defense attorneys, law enforcement of-

ficials, senior citizens, victims of crime, and

others interested in the criminal justice process,

shall appoint the voting members of the Commis-

sion, by and with the advice and consent of the

Senate, one of whom shall be appointed, by and

with the advice and consent of the Senate, as the

(b)

4

Chairman. At least three of the members shall be

Federal judges selected after considering a list of

six judges recommended to the President by the

Judicial Conference of the United States. Not

more than four of the members of the commission

shall be members of the same political party. The

Attorney General or his designee shall be an ex of-

ficio, nonvoting member of the Commission. The

Chairman and members of the Commission shall

be subject to removal from the Commission by

the President only for neglect of duty or

malfeasance in office or for other good cause

shown.

The purposes of the United States Sentencing

Commission are to —-

(1) establish sentencing policies and practices

for the Federal criminal justice system that

(A) assure the meeting of the purposes of

sentencing as set forth in section

3553(a)(2) of title 18, United States

Code;

(B) provide certainty and fairness in

meeting the purposes of sentencing,

avoiding unwarranted sentencing dis-

parities among defendants with similar

records who have been found guilty of

similar criminal conduct while main-

taining sufficient flexibility to permit

individualized sentences when war-

ranted by mitigating or aggravating

factors not taken into account in the

establishment of general sentencing

practices; and

(C) reflect, to the extent practicable, ad-

vancement in knowledge of human be-

6.

~

ul

havior as it relates to the criminal

justice process; and

(2) develop means of measuring the degree to

which the sentencing, penal, and correc-

tional practices are effective in meeting the

purposes of sentencing as set forth in section

3553(a)(2) of title 18, United States Code.

Rule 52 of Federal Rules of Criminal Procedure, which

provides:

(a)

(b)

Harmless Error. Any error, defect, irregularity or

variance which does not affect substantial rights

shall be disregarded.

Plain Error. Plain erros or defects affecting

substantial rights may be noticed although they

were not brought to the attention of the court.

Rule 103 of The Federal Rules of Evidence, which pro-

vides that:

(a)

Effect of erroneous ruling. — Error may not be

predicted upon a ruling which admits or excludes

evidence unless a substantial right of the party is

affected, and

(1) Objection. — In the ruling is one ad-

mitting evidence, a timely objection or

motion to strike appears of record,

stating the specific ground of the ob-

jection, if the specific ground was not

apparent from the context; or

(2) Offer of proof. — In case the ruling is

one excluding evidence, the substance

of the evidence was made known to

the court by offer or was apparent

from the context within which ques-

tions were asked.

(b) Record of offer and ruling. — The court

6

may add any other or further statement

which shows the character of the evidence,

the form in which it was offered, the objec-

tion made, and the ruling thereon. It may

direct the making of an offer in question and

answer form.

Hearing of jury. — In jury cases, pro-

ceedings shall be conducted, to the extent

practicable, so as to prevent inadmissible

evidence from being suggested to the jury by

any means, such as making statements or of-

fers of proof or asking questions in the hear-

ing of the jury.

Plain error. — Nothing in this rule precludes

taking notice of plain error affecting

substantial rights although they were not

brought to the attention of the court.

7

STATEMENT OF THE CASE

On August 3, 1989, a federal grand jury returned an indict-

ment against Charles David Boyd. The eight-count indict-

ment charged Petitioner with unlawful use of a communica-

tion facility to facilitate the commission of a felony in viola-

tion of 21 U.S.C. § 843(b)(count one) and with the substan-

tive charge of distributing one-half (1/2) ounce of cocaine in

violation of 21 U.S.C. § 841(a)(1)(count two). In addition,

Petitioner was charged with unlawful use of a communica-

tion facility (count three) with the underlying felony being

the distribution of one (1) ounce of cocaine (count four), and

again three more charges of unlawful use of a communication

facility (counts five, six and seven) with the underlying

charge an attempt to possess with intent to distribute three (3)

kilograms of cocaine in violation of 21 U.S.C. § 841(b) and 21

U.S.C. § 846 (count eight).

The case was assigned to the Honorable Carl B. Rubin,

Judge, and trial commenced before a jury on October 30,

1989. On November 1, 1989, the jury returned a verdict of

guilty to all counts of the indictment. After the preparation of

a presentence report, Judge Rubin sentenced Petitioner to im-

prisonment of four (4) years each on counts one, three, five,

six and seven, to be served concurrently and, on count two,

four and eight, a sentence of imprisonment of ten (10) years

on each, all sentences to be served concurrently. In addition,

Petitioner was ordered to serve eight (8) years of supervised

release after his imprisonment and assessed a fine of fifty

dollars ($50.00) on each of the eight counts for a total of four

hundred dollars ($400.00).

A timely notice of appeal was filed in the United States

Court of Appeals for the Sixth Circuit. The Court of Appeals

refused to address Petitioner's claim that the government's

outrageous conduct deprived him of due process of law con-

trary to the Fifth Amendment to the United States Constitu-

tion. While Petitioner recognized that he did not raise this

claim in the district court, Petitioner urged the Court of Ap-

peals to address his claim under the doctrine of plain error, in

both his initial brief and, more fully, in his reply brief.

: pr}

Nonetheless, the Court of Appeals refused to address the

merits of Petitioner's claim, holding that the issue of the

government’s conduct was waived by Petitioner's failure to

raise the issue in the district court. See United States v. Boyd,

Slip Op. No, 90-3166 (6th Cir. April 30, 1991) (attached ap-

pendix pp. la-3a).

This case began when government agents and informants

made two controlled purchases of cocaine from Petitioner on

March 22, 1989, and March 31, 1989, respectively. Apparent-

ly unsatisfied with these efforts, the government arranged a

“reverse-sting” operation whereby the government offered to

sell cocaine to Petitioner. This “sale” of cocaine (which never

existed) occurred on July 18, 1989, nearly four (4) months

after the last of the controlled purchases.

The government informant who arranged the controlled

purchases of cocaine from Petitioner was Clarence Brown.

Brown had been arrested by federal officers and was working

for the government pursuant to a plea agreement. Brown tes-

tified that when he was arrested, the federal officers “picked

a name” out of Brown’s address book, and that person was

Petitioner. Brown also testified that prior to his arrest he had

purchased cocaine from Petitioner, in amounts up to as much

as seven (7) grams. Acting under instructions from the

government, Brown placed a telephone call to Petitioner on

March 22, 1989, and attempted to arrange to purchase one-

half (1/2) ounce of cocaine. A half-ounce containes fourteen

(14) grams, so this amount was double any previous purchase

Brown had made from Petitioner.

Government agents gave Brown five hundred and fifty

dollars ($550.00) to purchase the half-ounce of cocaine.

Brown testified that he met with Petitioner on March 22,

1989, outside a gasoline station and purchased the half-ounce

of cocaine from Petitioner. The serial numbers of the money

Y

had been recorded by government agents. The cocaine was

then turned over to Special Agent Stephen Barnett.

Approximately one week later, on March 31, 1989, Brown

again arranged to purchase additional amounts of cocaine

from Petitioner. This time Brown was directed by the govern-

ment agents to attempt to purchase a full ounce of cocaine

from Petitioner. Brown was given one thousand one hundred

and fifty dollars ($1,150.00) by government agents to make

this purchase. Brown testified that Petitioner telephoned him

around four or five o’clock on the afternoon of March 31,

1989, and told Brown to meet Petitioner at a certain location

approximately three blocks from Brown's house. Brown gave

Petitioner the money and obtained an ounce of cocaine.

Special Agent Stephen Barnett of the Federal Bureau of In-

vestigation also testified for the government. Barnett actually

observed the March 22, 1989, transaction between Brown

and Petitioner. On March 23, 1989, Special Agent Barnett ob-

tained a search warrant for Petitioner's residence-The pur-

pose of the warrant was to search for cocaine, paraphernalia

used to distribute cocaine, and money from the sale of co-

caine. Among other items, a portable safe was found that

contained thirteen thousand and thirty dollars ($13,030.00),

which included the five hundred fifty dollars ($550.00) that

was used by Brown in the controlled purchase the prior day.

Barnett was also the agent who arranged for the second

controlled purchase on March 31, 1989. Barnett gave Brown

one thousand one hundred and fifty dollars ($1,150.00) in

cash to purchase an ounce of cocaine.' Brown gave the ounce

of cocaine to Barnett. The record does not reveal any further

interest in Petitioner until June or July of 1989. At that time,

another individual, Dwayne Rodrigues, who was working

' Actually, one thousand and one hundred dollars ($1,100.00) was to pur

chase the cocaine and the additional fifty dollars ($50.00) was to pay a debt

that Brown owed Boyd

10

with the government pursuant to his plea agreement, con-

tacted Petitioner. Specifically, Rodrigues agreed to sell a large

amount of cocaine to Petitioner in a reverse-sting operation.

In fact, there would be no cocaine and there never was any

intent to complete the transaction. A series of telephone calls

between Rodrigues and Petitioner were recorded by Rod-

rigues at the government's request. Finally, a transaction was

arranged where Petitioner would purchase three kilograms of

cocaine from Rodrigues. A meeting was arranged in a motel

room on July 18, 1990. That meeting was videotaped. Peti-

tioner and Rodrigues left the motel room and went to Peti-

tioner’s car so that Rodrigues could see that Petitioner actual-

ly had the money to pay for the cocaine. After Petitioner

returned to the motel room he was arrested.

Based on the foregoing evidence, Petitioner was convicted

of all the counts contained in the indictment, and he was

sentenced as appears of record.

1]

a REASONS FOR GRANTING THE WRIT

I. WHEN A FEDERAL COURT OF APPEALS

REFUSES TO ADDRESS AN APPELLANT'S CON-

TENTION THAT PLAIN ERROR OCCURRED

AT TRIAL, THE COURT OF APPEALS HAS

DEPRIVED THE APPELLANT OF DUE PRO-

CESS OF LAW AND IS IN VIOLATION OF

FEDERAL LAW.

Both Rule 52 of the Federal Rules of Criminal Procedure

and Rule 103 of the Federal Rules of Evidence permit a Court

of Appeals to take notice of plain errors which affect

“substantial rights.” For example, the Court of Appeals for

the Sixth Circuit has held that a prosecutor’s comments on the

defendant's failure to testify were plain error because they

violated the defendant's constitutional right not to testify.

United States v. Robinson, 794 F.2d 1132, 1135-36 (6th Cir.

1986), reversed on other grounds, 485 U.S. 25, 108 S.Ct. 864

(1988). The Court of Appeals held under these circumstances

the prosecutor’s error was not harmless because it “jeopar-

dized the fairness of the trial.” See also United States v.

Williams, 665 F.2d 107 (6th Cir. 1981) (holding that a viola-

tion of a defendant’s due process rights can rise to a level of

plain error); and United States v. Jones, 647 F.2d 696 (6th

Cir. 1981), cert. denied, 454 U.S. 898, 102 S.Ct. 399 (1981)

(holding that a jury instruction that impermissibly amends an

indictment is plain error). Nonetheless, the Court of Appeals

refused to review the substantive issue claimed as plain error

in this case.

The claim of outrageous governmental conduct that

deprives a defendant of due process of law raises a claim of

constitutional magnitude. See e.g. United States v. Russell,

411 U.S. 423, 93 S.Ct. 1637 (1973). “[B]Jefore a federal con-

stitutional error can be harmless, the court must be able to

declare a belief that it was harmless beyond a reasonable

doubt.” Chapman v. California, 386 U.S. 18, 21-22, 87 S.Ct.

824 (1967). The standard of review in such cases was for-

12

mulated by this Court in Kotteakos v. United States, 328 U.S.

750, 764-65, 66 S.Ct. 1239, 1248 (1946), when it held that:

If, when all is said and done, the conviction is sure

that the error did not influence the jury, or had but

very slight effect, the verdict and the judgment should

stand, except perhaps where the departure is from a

constitutional norm or a specific command of Con-

gress. But if one cannot say, with fair assurance, after

pondering all that happened without stripping the er-

roneous action from the whole, that the judgment was

not substantially swayed by the error, it is impossible

to conclude that substantial rights were not affected.

The inquiry cannot be merely whether there was

enough to support the result, apart from the phase af-

fected by the error. It is rather, even so, whether the

error itself had substantial influence. If so, or if one is

left in grave doubt, the conviction cannot stand.

(Citations omitted; footnote omitted; emphasis

added. )

An error that implicates a significant due process right,

which is guaranteed by the Fifth Amendment to the United

States Constitution, can only affect a substantial right of a

criminal defendant. In this case, the government agents

usurped both the legislative and judicial functions by pro-

ceeding against Petitioner until they had what they chose to

consider sufficient charges against Petitioner and to ensure a

sentence that was to their liking. Therefore, the Court of Ap-

peals should have considered the substantive issue raised by

Petitioner under a plain error theory if the Court was to

guarantee that a substantial constitutional right can be vin-

dicated when it is violated by the government.

This Court must grant the writ of certiorari in order to en-

sure that the Court of Appeals will review claims of error of

constitutional dimension under the doctrine of plain error.

Unless this result is reviewed, this case will stand as precedent

for permitting waiver of substantial fundamental and express

constitutional rights without making any determination of

whether the violation of those rights influenced. or were in

deed the cause, of a defendant's conviction

14

Il. THE GOVERNMENT’S CONDUCT IN THIS

CASE WAS SO OUTRAGEOUS THAT IT DE-

NIED PETITIONER DUE PROCESS OF LAW AS

GUARANTEED BY THE FIFTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

In this case, government agents continued to enter into

conduct designed merely to enhance the penalty to which

Petitioner would be subjected. The actions of the government

usurped the function of the district court and the legislature

by effectively selecting the sentence that Petitioner would

serve should he be convicted. This outrageous conduct of the

government demands reversal of the verdicts of guilty to

counts five through eight.

The concept that outrageous conduct can deprive a

criminal defendant of due process of law has its genesis in

United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637 (1973),

when then-Justice Rehnquist stated that it was possible that

law enforcement officers’ conduct could be “so outrageous

that due process principles would absolutely bar the govern-

ment from invoking judicial process to obtain a conviction.”

Id. at 433, 93 S.Ct. 16 1643 (emphasis added; citations

omitted). Whether the government’s conduct violated Peti-

tione 's right to due process of law is a question of law that

must be reviewed de novo by an appellate court. United

States v. Emmert, 829 F.2d 805, 810-11 (9th Cir. 1987) (cita-

tions omitted). “Fundamental fairness will not permit a per-

son to be convicted of a crime in which the governmental

conduct was ‘outrageous’.” United States v. Kinkle, 631

F.Supp. 423, 424 (E.D. Pa. 1987) (citations omitted).

In evaluating an outrageous-conduct claim, the reviewing

court looks only to the government’s conduct objectively,

without regard to the accused’s criminal predisposition.

United States v. Smith, 802 F.2d 1119 (9th Cir. 1986). See

also United States v. Porter, 709 F.Supp. 770 (E.D. Mich.

1989), affirmed without opinion, 895 F.2d 1415 (6th Cir.

1990) (holding that the predisposition of an accused is irrele-

15

vant in considering the government’s outrageous misconduct);

accord United States vy. Gardner, 658 F.Supp. 1573, 1577

(W.D. Pa. 1987).

There can be no doubt, looking at the record evidence, that

the government had all of the evidence regarding the first

four counts of the indictment in its possession on March 31,

1989. The two controlled buys of cocaine from Petitioner,

together with the evidence obtained from the search of Peti-

tioner’s residence, was not supplemented in any way during

the months that elapsed prior to Petitioner’s arrest. All of

these acts took place in 1989, subsequent to the effective date

of the Sentencing Reform Act and the Sentencing Guidelines.

See 28 U.S.C. § 991 et seq. In the case sub judice, counts one

through four are based on a controlled purchase of either one-

half (1/2) ounce or one (1) ounce of cocaine.

When the Sentencing Guidelines are consulted, Petitioner’s

sales of approximately forty-two (42) grams of cocaine (that is

counts one through four) yields an Offense Level of fourteen

(14). U.S.S.G. § 2D1.1. Petitioner’s prior felony conviction

resulted in no additional criminal history points because it

was over fifteen (15) years old. U.S.S.G. Chapter 4, Part D.

Therefore, according to the Sentencing Table, Petitioner

would be in Criminal History Category I. U.S.S.G. Chapter

5, Part A. This combination (an Offense Level 14 and

Category I) results in a recommended sentence of fifteen (15)

to twenty-one (21) months. U.S.S.G. Chapter 5, Part D.

Including the “reverse-sting” of the non-sale of three (3)

kilograms changes the sentencing options dramatically. Pur-

suant to statute, Petitioner was subjected to an absolute

minimum sentence of one hundred twenty (120) months or

ten (10) years of incarceration. 21 U.S.C. § 841(b)(B)(ii). In

other words, the law enforcement officials in this case, not

satisfied with the sentence they could obtain for the amounts

of cocaine they had already purchased from Petitioner, de-

cided to involve Petitioner in something that would increase

his sentence in excess of five hundred and seventy percent

16

(570%), as well as seizing fifty four thousand dollars

($54,000.00) from Petitioner. Such conduct is outrageous and

serves no valid public policy.

It is not disputed that government infiltration is a “rec-

ognized and permissible means of investigation.” Russell, 411

U.S. at 432, 92 S.Ct. at 1643. “This proposition remains true

even though the... government agent... supplies

something of value to the criminal.” United States v. Brown,

635 F.2d 1207, 1212-13 (6th Cir. 1980). This proposition,

however, is grounded in the need for an undercover govern-

ment agent to “be taken into the confidence of the illegal en-

trepreneurs.” Russell, 411 U.S. at 432, 93 S.Ct. 1643. In this

case, however, the government had completely infiltrated the

illegal activity of Petitioner, and the rationale for the govern-

ment involvement had evaporated.

As noted, it is a question of law whether there is miscon-

duct by law enforcement officials which is so egregious that it

contravenes due process. United States v. Wylie, 625 F.2d

1371, 1378 (9th Cir. 1980), cert. denied sub nom. Perluss v.

United States, 449 U.S. 1080, 101 S.Ct. 863 (1981). In ap-

propriate cases, a federal court of appeals should reverse a

conviction if the “outrageous misconduct was, in effect, the

generation by police of new crimes merely for the sake of

pressing criminal charges against the defendant.” See e.g.

United States v. Ramirez, 710 F.2d 535, 540 (9th Cir. 1983)

(emphasis added) (recognizing that government actions taken

solely to obtain a conviction can violate due process).

For example, in United States v. Twigg, 588 F.2d 373 (3rd

Cir. 1978) an indictment was dismissed where the govern-

ment, acting through an informer, provided the location and

all the necessary chemicals for the unlawful manufacturing of

metaphetamine. The Court of Appeals found that “[t]his

egregious conduct on the part of the government agents

generated new crimes by the defendant merely for the sake of

pressing criminal charges against him... .” Id. at 381 (em-

phasis added).

17

In United States v. Bogart, 783 F.2d 1428 (9th Cir. 1986),

vacated in part on other grounds and as to another defen-

dant, United States v. Wingender, 790 F.2d 802 (9th Cir.

1986), the Court of Appeals also recognized that a conviction

should be reversed when law enforcement officers have in-

itiated actions merely for the sake of pressing new charges.

The Court stated that this definition of outrageous conduct

could trace its origins to Justice Brendeis, when he stated:

Decency, security, and liberty alike demand that

government officials shall be subjected to the same

rules of conduct that are commands to the citizen. In

a government of laws, existence of the government

will be imperiled it if fails to observe the law

scrupulously. Our government is the potent, the om-

nipresent teacher. For good or for ill, it teaches the

whole people by its example. Crime is contagious. If

the government becomes a lawbreaker, it breeds con-

tempt for law; it invites every man to become a law

unto himself; it invites anarchy. To declare that in the

administration of the criminal law the end justifies the

means — to declare that the government may commit

crimes in order to secure the conviction of a private

criminal — would bring terrible retribution. Against

that pernicious doctrine this Court should resolutely

set its face. Id. at 1436, citing, Olmstead v. United

States, 277 U.S. 438, 485, 48 S.Ct. 564, 575 (1928)

(Brandeis, J., dissenting).

The Court of Appeals for the Sixth Circuit has even recog-

nized that fundamentally unfair conduct violates a

defendant's due process rights. United States v. Johnson, 855

F.2d 299, 305 (6th Cir. 1988); see also United States v. Robin-

son, 763 F.2d 778 (6th Cir. 1985). In the Sixth Circuit, four

factors are taken into consideration when determining if

police conduct implicates defendant's right to due process of

law. Those factors are:

18

(1) the need for the type of government conduct in

relationship to the criminal activity;

(2) the preexistence of a criminal enterprise;

(3) the level of the direction or control of the

criminal enterprise by the government;

(4) the impact of the government activity to create

the commission of the criminal activity. Johnson, at

305 (citations omitted).

The Bogart Court suggested a similar four-factor test for

judging law enforcement conduct:

(1) Whether the crime would not have occurred

but for the government’s assistance in manufacturing

the crime or whether the defendant were already in-

volved in ongoing criminal activity;

(2) Whether the government's agents committed

crimes or otherwise acted improperly;

(3) Whether the government’s agents persisted

with their inducements to overcome the defendant's

reluctance to commit the crime; and

(4) Whether the government's agents sole motive

was to obtain a conviction. See People v. Isaacson, 44

N.Y.2d 511, 521, 406 N.Y.S.2d 714, 719, 378 N.E.2d

78, 83 (1978).

Bogart, 783 F.2d at 1435, n.7 (citation in original).

The first factor clearly militates in favor of a reversal.

There was no need for this type of government activity, unless

the purpose of the Sentencing Guidelines is to allow law en-

forcement officers to determine the range of imprisonment

imposed on a convicted defendant. This situation is in-

distinguishable from that where a police officer permits a

bank robber to flee his custody so that the robber can be

charged with the additional crime of escape as well as the

19

robbery. This case permits law enforcement officers who have

solid evidence against a rapist to allow the accused to remain

at large in the perverse hope that he will rape again and

thereby be subjected to a longer prison term.

The second factor initially appears to support affirmance of

this conviction because there was testimony of a preexisting

criminal enterprise. Law enforcement, however, had already

infiltrated that enterprise. This was not a case where law en-

forcement officers were attempting to investigate suspicious

activity to determine whether criminal activity existed.

Rather, this was a case where all the players had been iden-

tified. Indeed, some had already pled guilty to charges and

were working with the government. This case, if permitted to

stand, permits the government to continue to commit crimes

with an accused until it decided that the accused had com-

mitted a sufficient number of crimes to ensure a virtual life

sentence. The essential purpose of law enforcement is to catch

perpetrators of crime; it is for the legislature and the courts to

determine the sentence.

Similarly, the third factor militates in favor of a reversal.

The government controlled fully two-thirds (2/3) of the

criminal enterprise in this case. The government had Peti-

tioner completely isolated. The government controlled his

supplier and his purchaser. In reality, the government was

buying and selling drugs to itself through a middleman. The

government had Petitioner's supplier, and if it wished to in-

filtrate the organization the next logical step would have been

to the supplier’s organization.

Finally, the fourth factor also militates in Petitioner's

favor. The impact of the government activity in this case was

to be both purchaser and seller. Without the government.

there would have been no large-scale transaction with which

Petitioner could have been charged.

20

Ill. THE SENTENCING REFORM ACT UNCON-

STITUTIONALLY PERMITS LAW ENFORCE-

MENT OFFICERS TO DETERMINE A CRIM-

INAL DEFENDANT’S SENTENCE IN VIOLA-

TION OF THE DOCTRINE OF SEPARATION

OF POWERS.

In Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647

(1989), this Court held that the Sentencing Reform Act's

delegation of authority to the Sentencing Commission did not

violate the nondelegation doctrine rooted in the principle of

separation of powers that underlies our tripartite system of

government. Further, the Mistretta Court held that the re-

quirement that federal judges serve on the Commission did

not violate separation-of-powers principles. Id. at 406, 109

S.Ct. at 667.

The challenge presented in this case is distinct from that

presented in Mistretta. The challenge here is that the Sentenc-

ing Commission’s strict guidelines, together with this Court’s

doctrine of outrageous governmental conduct, effectively per-

mits law enforcement agenices to perform unethical, immoral

and probably unlawful acts that have no value other than to

increase the sentence of a convicted defendant. Because of the

nature of the guidelines, the district court’s discretion is ex-

tremely limited in deviating from the guidelines.

As has already been noted, the seminal case regarding

outrageous governmental conduct is United States v. Russell,

411 U.S. 423, 93 S.Ct. 1637 (1973). When Russell was de-

cided, if a district court judge felt that the actions of the

government in a particular case were unethical, immoral or

unlawful, but yet did not rise to the level of outrageousness

required by Russell, the district court could still account for

the government’s action in the wide discretion accorded the

courts in sentencing. That possibility no longer exists.

After the advent of the Sentencing Commission’s Guide-

lines, the district court is bereft of nearly all discretion. The

21

relationship, therefore, between the Sentencing Guidelines

and the doctrine of outrageous conduct permits law enforce-

ment officials to effectively sentence criminal defendants in

violation of the separation-of-powers doctrine. This Court

should grant this petition to address this substantial fun-

damental constitutional question.

CONCLUSION

For all the foregoing reasons, and to insure that the

guarantee of due process of law in the Fifth Amendment to

the United States Constitution, Petitioner Charles David

Boyd requests that this Court issue a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit.

Respectfully ae

H. LOUIS SIRKIN

EDMUND J. McKENNA

SIRKIN, PINALES, MEZIBOV &

SCHWARTZ

920 Fourth & Race Tower

105 West Fourth Street

Cincinnati, Ohio 45202

Telephone (513) 721-4876

Attorneys for Petitioner.

APPENDIX

Not For Publication

No. 90-3166

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

: Plaintiff-Appellee,

v.

CHARLES D. BOYD,

Defendant-Appellant.

On Appeal from the United States District Court

for the Southern District of Ohio

(Filed April 30, 1991)

Before: GUY and RYAN, Circuit Judges; and JOINER, Sen-

ior District Judge. *

RYAN, Circuit Judge. Defendant, Charles D. Boyd, ap-

peals his jury conviction for distribution of cocaine in viola-

tion of 21 U.S.C. § 841(a)(1) and related felonies, claiming

that the government's conduct in its investigation of him was

outrageous. The issue on appeal is whether Boyd waived his

claim of outrageous government conduct on appeal by failing

* The Honorable Charles W. Joiner, Senior District Judge of the United

States District Court for the Eastern District of Michigan, sitting by

designation.

la

2a

to raise this issue in the district court. We hold that he did,

and we shall affirm the conviction.

I.

Boyd was indicted for distribution of cocaine, unlawful use

of a telephone to facilitate the commission of a felony, and at-

tempted possession with the intent to distribute cocaine. The

indictment arose from three controlled transactions. In March

1989, Boyd sold one-half ounce of cocaine to a government

agent for $550 at a Sohio gas station in Cincinnati. Nine days

later, Boyd sold the same agent one ounce of cocaine for

$1,100. In June and July 1989, another government agent had

several phone conversations with Boyd. During one of the

conversations, the agent, who was living in California,

agreed to deliver three kilograms of cocaine to Boyd for

$54,500. On July 18, Boyd met with the agent at a hotel near

Cincinnati. He showed the agent the money for the purchase,

and was promptly arrested. The government recovered

$50,020 in cash from Boyd’s car and $4,940 on his person.

Boyd was indicted and later convicted for the above trans-

actions in November 1989. He was sentenced to ten years im-

prisonment and eight years supervised release. Boyd appeals

claiming that the government’s conduct in its investigation of

him was outrageous. ™

II.

The government argues that Boyd waived his claim of

outrageous government conduct on appeal because he failed

to raise the claim in the district court. We addressed this sub-

ject in United States v. Davis, 809 F.2d 1194, 1209 (6th Cir.),

cert. denied, 483 U.S. 1007 (1987). In Davis, the defendant

alleged outrageous conduct by the government, but he failed

to bring a motion to dismiss on this ground prior to or during

trial. We specifically held that “[t]he appellate issue is thus

waived.” Id. at 1209 (citing Fed. R. Crim. P. 12 and United

States v. Worthington, 698 F.2d 820, 824 (6th Cir. 1983)).

3a

Boyd's failure to raise the claim of outrageous conduct by

the government in the district court before or during trial is a

waiver of the claim.

AFFIRMED.

[DULY CERTIFIED

ISSUED AS MANDATE: May 22, 1991

COSTS: None

4da

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CR-1-89-094

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

CHARLES D. BOYD,

Defendant.

JUDGMENT INCLUDING SENTENCE UNDER

THE SENTENCING REFORM ACT

(Filed February 19, 1991)

The defendant, with counsel, H. Louis Sirkin, Esq., was

found GUILTY on Count(s) | thru 8 after a plea of not guil-

ty. Accordingly, the defendant is adjudged guilty of such

count(s), which involves the following offense(s):

Title 21 USC 843(b) Use of a telepone to facilitate the distri-

bution of cocaine. Cts. 1, 3, 5, 6, 7

Title 21 USC 84l(a)(1), Title 21 USC 846 Attempting to

Possess with intent to distribute cocaine. Ct. 8

Title 21 USC 84l(a)(1) Distribution of cocaine. Cts. 2, 4

The defendant is sentenced as provided in this Judgment.

The sentence is imposed pursuant to the Sentencing Reform

Act of 1984.

Pursuant to the Sentencing Reform Act of 1984, it is the

judgment of the court that the defendant is hereby committed

to the custody of the Bureau of Prisons to be imprisoned for a

term of TEN (10) YEARS on Count 8.

FOUR (4) YEARS on each of counts 1, 3, 5, 6 and 7, such

sentence to be served concurrently with Count 8 and each

other.

~

Ja

TEN (10) YEARS on each of counts 2 and 4, such sentence

to be served concurrently with Count 8 and each other.

Upon release from imprisonment, the defendant shall be on

supervised release for a term of EIGHT (8) YEARS.

While on supervised release, the defendant shall not com-

mit another Federal, state or local crime, and shall comply

with the standard conditions of probation of the Southern

District of Ohio (set forth below). If this judgment imposes

restitution obligation, it shall be a condition of supervised

release that the defendant pay any such restitution that re-

mains unpaid at the commencement of the term of supervised

release.

It is further ordered that the defendant shall pay to the

United States a special assessment of $400.00., which shall be

due immediately.

The defendant is not a candidate for voluntary surrender.

It is further ordered that the defendant shall notify the

United States Attorney for this district within 30 days of any

change in residence or mailing address until all fines, restitu-

tion, costs and special assessments imposed by this judgment

are fully paid.

s/ CARL B. RUBIN

Chief Judge

United States District Court

Date

[DULY CERTIFIED]

6a

STANDARD CONDITIONS OF SUPERVISION

While defendant is on probation or supervised release pur-

suant to this Judgment:

1) The defendant shall not commit another Federal, state

or local crime;

2) the defendant shall not leave the judicial district

without permission of the court or probation officer;

3) the defendant shall report to the probation officer as

directed by the court or probation officer and shall submit a

truthful and complete written report within the first five days

of each month;

4) the defendant shall answer truthfully all inquiries by

the probation officer and follow the instructions of the proba-

tion officer;

5) the defendant shall support his or her dependents and

meet other family responsibilities;

6) the defendant shall work regularly at a lawful occupa-

tion unless excused by the probation officer for schooling,

training, or other acceptable reasons;

7) the defendant shall notify the probation officer within

seventy-two hours of any change in residence or employment:

8) the defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use, distribute, or ad-

minister any narcotic or other controlled substance, or any

paraphernalia related to such substances, except as prescribed

by a physician;

9) the defendant shall not frequent places where con-

trolled substances are illegally sold, used, distributed or ad-

ministered;

10) the defendant shall not associate with any persons

engaged in criminal activity, and shall not associate with any

person convicted of a felony unless granted permission to do

so by the probation officer;

11) the defendant shall permit a probation officer to visit

him/her at any time at home or elsewhere and shall permit

confiscation of any contraband observed in plain view by the

probation officer;

ja

12) the defendant shall notify the probation officer

within seventy-two hours of being arrested or questioned by a

law enforcement officer;

13) the defendant shall not enter into any agreement to

act as an informer or a special agent of a law enforcement

agency without the permission of the court;

14) as directed by the probation officer, the defendant

shall notify third parties of risks that may be occasioned by

the defendant’s criminal record or personal history or

characteristics, and shall permit the probation officer to make

such notifications and to confirm the defendant’s compliance

with such notification requirement.

These conditions are in addition to any other conditions im-

posed by this Judgment.

Sa

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Criminal No. 1-89-94

UNITED STATES OF AMERICA,

Plaintiff,

v.

CHARLES D. BOYD.

Defendant.

ORDER

(Filed February 22, 1990)

This matter is before this Court for imposition of sentence

upon Charles Boyd pursuant to a finding by a jury of guilty to

the offenses of Use of a Telephone to Facilitate the distribu-

tion of Cocaine (18 U.S.C. § 843(b)); Attempting to possess

with intent to distribute cocaine (18 U.S.C. § 84]l(a)(1) and

18 U.S.C. § 846); and Distribution of Cocaine (18 U.S.C.

§ 841(a)(1)).

All of these counts will be grouped together to form a single

count group pursuant to Guideline Section 3D1.2.

The Court finds that the defendant has a criminal history

category of I.

I. Findings of Fact

In accordance with 18 U.S.C. § 3553 the Court makes the

following findings of relevant facts significant to the imposi-

tion of sentence herein.

A. Undisputed Facts

In the absence of any objection thereto, paragraph(s) one

Ya

through twelve (1-12), fourteen through seventeen (14-17),

nineteen (19), and twenty-one through fifty-eight (21-58) of

the Presentence Report are accepted as true.

B. Disputed Facts

Based upon a preponderance of the evidence, the Court

determines the following disputed facts:

1. Paragraph 20, Offense Level Computations. The

Court finds that the dispute among the parties is the effect of

testimony by one Dwayne Rodrigues. The United States ap-

propriately quoted the testimony of Rodrigues which is at the

very least vague and devoid of any specific times. The Proba-

tion Officer determined, that the defendant Boyd should be

charged with an additional six kilos of cocaine which appears

to be a compromise between three kilos, which the evidence

indicated defendant attempted to purchase and inferences

from Rodrigues testimony which could reach 18 kilos.

This Court is unwilling to punish this defendant based

upon testimony such as the following:

Question: “Did you made deliveries of cocaine to

Mr. Boyd?

Answer: Yes, Sir.

Question: Approximately how many?

Answer: Usually like two, two k’s of cocaine.

Question: Alright, how many times did you do this?

Answer: Maybe six, maybe eight, nine times”.

(Rodiguez testimony at 5 (emphasis added)). There is a reluc-

tance to add actual prison time to evidence based upon words

such as “approximately”, “maybe” and “usually”. According-

ly the Court determines, that while the guideline range for

three kilos would be between 78 and 97 months, 120 months

appears to be more appropriate. This is approximately mid-

way between the maximum of 97 months under Level 28 and

the minimum of 151 months under Level 34.

10a

Ten years in prison is to this Court severe punishment and

in keeping with the nature of defendant's offense.

C. Controverted But Not Significant Facts

The following matters are in controversy because of asser-

tions of the Defendant:

1. Paragraph 13, Adjustment for Obstruction of Justice.

2. Paragraph 18, Adjustment for Acceptance of Respon-

sibility.

No findings in regard to such matter have been made since

such matters were not a basis for determining the sentence.

In accordance with the foregoing and pursuant to the ap-

propriate guideline, the Court imposes the following

sentence:

A. Imprisonment for TEN (10) YEARS.

B. Supervised release for EIGHT (8) YEARS.

II. Conclusions Regarding Sentence

A. In accordance with 18 U.S.C. § 3553(c) the Court has

selected ten years of imprisonment below the guidelines

because ten years in prison is to this Court severe punishment

and in keeping with the nature of defendant's offense.

B. The Court has not ordered restitution because the

defendant does not have the financial wherewithal to pay a

fine, and it is, therefore, waived pursuant to Section 5E1.2.

IT IS SO ORDERED.

/s)/ CARL B. RUBIN

Chief Judge

United States District Court