Career Angst

United States v. Sanchez, No. 05-3812-cr (2d Cir. February 29, 2008) (Kearse, Straub, Pooler, CJJ).

In this long opinion, the court considered several challenges to recidivist sentences in a drug case. Two defendants, both “career offenders” under Guidelines section 4B1.1, got relief. A third, sentenced to an enhanced mandatory minimum, did not.

Career Offender

Title 28 U.S.C. § 994(h) directed the Sentencing Commission to develop Sentencing Guidelines for career offenders that would fix a Guideline range “at or near” the statutory maximum. Here, the district judge made statements that seemed to indicate that she believed that this section required her to sentence the defendants above the mandatory minimum, which was 120 months. She gave one defendant 235 months, and the other 188.

The court appellate court concluded that the district court’s apparent belief was incorrect. It noted that § 994(h) is a direction to the Commission, not the courts; moreover, there is no statute giving similar instructions to judges. Indeed, Congress rejected such legislation when fashioning the 1984 Sentencing Reform Act. The circuit concluded that for both defendants, the record was at least ambiguous as to whether the court would have imposed the same sentence if it correctly understood that § 994(h) did not restrict its sentencing authority.

The court remanded for clarification without vacating the sentences, and gave some interesting instructions for the remand. Since the policy considerations behind § 994(h) are relevant to several of the factors set out in 18 U.S.C. § 3553(a), this “must be taken into account” by the district court. The circuit instructed the district court to first “provide the necessary clarifications” regarding its reasons for imposing the sentences it selected, under a procedure similar to a Crosby remand. If that clarification reveals that the court would have imposed the same sentence, it need take no other action. If the clarification reveals that the district court would have imposed a different sentence on either defendant, then it should vacate that sentence and resentence him.

The Prior Felony Information

A third defendant received an enhanced mandatory minimum, 20 years instead of 10, after the government filed a prior felony information. See 21 U.S.C. § 851. The court rejected two constitutional challenges to the sentence.

First, it held that the statutory delegation to the United States Attorney of the power to raise the mandatory minimum did not violate the constitutional principle of separation of powers. Section 851 does give the government “some degree of control” over the ultimate sentence. But this is simply part of the government’s legitimate power to decide whether to prosecute at all and, if so, to decide which among the various available statutes – with different maximums and minimums – to use.

The defendant also argued that the government’s failure to explain why it had chosen to file a prior felony information against this one defendant, but not the others, was a due process violation. The court disagreed. Here, there was no evidence of an improper motive that would overcome the presumption of regularity of prosecutorial decision-making.