Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona CHARLES F. HYDER Assistant U.S. Attorney Arizona State Bar No. 001967 United States Attorney's Office Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 [email protected] Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-04-0313-PHX-FJM Plaintiff, v. Derrick McCreary, et al. Defendant. The United States, by and through counsel, hereby responds to the Defendant's Objections To The Presentence Report. The government's position is set forth with specificity in the attached Memorandum of Points and Authorities. Respectfully submitted this 29th day of November, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /s _________________________________ CHARLES F. HYDER Assistants United States Attorneys RESPONSE TO DEFENDANT'S OBJECTIONS TO THE PRESENTENCE REPORT

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MEMORANDUM OF POINTS AND AUTHORITIES The defendant raises four legal objections to the sentencing scheme pursuant to

3 18 U.S.C. 924(c)(1)(A). 4 The first objection is that 18 U.S.C. 924(c)(1)(A) violates the Separation of Powers

5 Doctrine and vests discretion with respect to sentencing under the statute to the Executive 6 Branch (the prosecutor) rather than the Judicial Branch. 7 The second objection is much like the first in that the defendant alleges 18 U.S.C.

8 924(c)(1)(A) also violates the non-delegation doctrine because it delegates to the Executive 9 Branch of the "legislative authority" to sentence defendants under the statute. The defendant 10 cites Mistretta v. United States, 488 U.S. 361 (1989) for the principal that the Constitution 11 mandates that Congress cannot generally delegate its legislative power to another branch of 12 government. 13 The third objection is that the defendant's 5th Amendment due process rights will be

14 violated because 18 U.S.C. 924(c)(1)(A) vests all sentencing authority in the Attorney 15 General and the United States Attorneys offices with complete sentencing discretion and 16 thereby denies the defendant of his right to "individualized sentencing." 17 Lastly, the defendant alleges his 8th Amendment right not to be subjected to cruel and

18 unusual punishment will be violated due to the sentencing scheme under 18 U.S.C. 19 924(c)(1)(A). 20 The defendant concedes established case law for each and every objection lodged has

21 been rejected by the overwhelming legal authority on these issues. He seeks to have this 22 court enter a ruling holding that 18 U.S.C. 924(c)(1)(A) is unconstitutional and requests that 23 the court sentence the defendant within the guideline range set forth in the United States 24 Sentencing Guidelines, minus the 18 U.S.C.924(c) provisions. 25 // 26 // 27 28
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1 A. SEPARATION OF POWERS/VIOLATION OF THE NON-DELEGATION 2 3 DOCTRINE The defendant alleges that the sentencing scheme violates the separation of powers

4 doctrine under Article 1 of the Constitution. Insofar as the Sentencing Guidelines "no longer 5 apply" once the government charges violations of 18 U.S.C. 924(c)(1)(A), and the jury 6 convicts, that any discretion with respect to sentence is vested in the Executive-rather than 7 the Judicial Branch. His contention is that this impermissibly infringes on the ability of the 8 District Court to impose a sentence of less than thirty-two years for counts three and five. 9 This argument was made in United States v. Jensen, 425 F.3d 698 (9th Cir. 2005). The

10 Court stated that the argument made by the defendant is foreclosed by the Supreme Courts 11 decision in United States v. LaBonte, 520 U.S. 751 (1997). In LaBonte, the court rejected an 12 argument that prosecutorial discretion under a sentencing enhancement provision of 21 13 U.S.C. 851 resulted in an unconstitutional disparity in sentencing, observing that the 14 discretion available to prosecutors under that section is "similar to the discretion a prosecutor 15 exercises when he decides what, if any, charges to bring against a criminal suspect," and 16 holding that such discretion is constitutional. Id at 762. 17 In United States v. Batchelder, 442 U.S. 114 (1974), the court found that no improper

18 delegation of legislative power to the executive results from prosecutorial discretion to 19 charge a defendant with either one of two statutes with identical elements but different 20 maximum penalties. 21 The provisions at issue plainly demarcate the range of penalties that prosecutors and judges

22 may seek and impose. In the light of that specificity, the power that Congress has delegated to 23 those officials is no broader than the authority they routinely exercise and enforcing the criminal 24 law. Having informed the courts, prosecutors, and defendants of the permissible punishment 25 alternatives available under each title, Congress has fulfilled its duty. 442 U.S. 114 at 126. 26 27 28
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In United States v. Cespedes, 151 F.3d 1329 (11th Cir. 1998), as in Jensen, the defendant

2 made similar allegations that 21 U.S.C. 851 was a separatation of powers doctrine violation as 3 well as an unconstitutional delegation of legislative authority to the Executive Branch because 4 it gave prosecutors "unbridled discretion" to determine whether or not to file a sentencing 5 enhancement pursuant to 28 U.S.C. 851, without providing any "intelligible principle' to 6 guide that discretion. The court stated: 7 8 9 10 11 12 Thus, rather than delegating legislative power, §851 affords prosecutors the power no 13 greater than that traditionally exercised by the Executive Branch in the charging decision. Indeed, the Supreme Court explicitly analogized prosecutorial discretion under §851 to the 14 charging power of the executive. Insofar as prosecutors, as a practical matter, may be able to determine whether a particular defendant will be subject to the enhanced statutory maximum, any such discretion 16 will be similar to the discretion the prosecutor exercises when he decides what, if any, charges to bring against a criminal suspect. Such discretion is an integral feature of the 17 criminal justice system, and is appropriate, so longthas it is not based upon improper factors. See United States v. Ayarza, 874 F.2d. 647, 653 (9 Cir. 1989). United States v. LaBonte, 18 520 U.S. 751 (citation omitted) (rejecting argument that prosecutorial discretion under §851 leads to unwarranted disparity). 19 So long as the prosecutor has probable cause to believe that the accused committed an 20 offense defined by statute, the decision whether or not to prosecute, and what to charge or file or bring before a grand jury, generally rests entirely in his discretion. Bordenkircher v. 21 Hayes, 434 U.S. 357, 364 (1978). The federal courts have longed recognized that when an act violates more than one criminal statute, the government may prosecute under either so 22 long as it does not discriminate against any class or defendants. United States v. Batchelder, 442 U.S. 114, 123-24 (1979) (citations omitted). Moreover, in selecting which charge to file 23 a prosecutor may be influenced by the penalties available upon conviction. United States v. Harden, 37 F.3d 595, 599 (11th Cir. 1994), cf. Batchelder, 442 U.S. at 125. 24 A defendant has no constitutional right to avoid the statutory enhancement, and therefore 25 has no grounds upon which to challenge the delegation of discretion over when the government may seek the enhancement as long as the exercise of that discretion does not 26 offend some other constitutional provision. Cespedes, 751 F.3d at 1334; cf. Wayte v. United States, 470 U.S. 598 (1985); see also United States v. Crayton, 357 F.3d 560, 571-72 (6th Cir. 27 2004). 15 28
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Plainly, a prosecutor's selection of which charge to file against a given defendant necessarily implicates the range of potential penalties available to the court. For example, when prosecuting an individual for a crime of violence or drug trafficking crime, if the defendant used or carried a firearm during the crime, the prosecutor has absolute discretion over whether or not to charge him with a violation of 18 U.S.C. §924(c)(1) which necessarily carries a five year mandatory sentence to be served consecutively to that for the underlying crime. The power of the prosecutor in such a case to increase unilaterally the mandatory minimum sentencing exposure by charging the defendant under 18 U.S.C. §924(c)(1) is analogous to the power of a prosecutor under §851 to increase the defendants mandatory minimum sentence by filing an Information.

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1 B. INDIVIDUALIZED SENTENCING 2 The defendant next contends his Fifth Amendment Rights to due process are violated

3 because under the sentencing structure of 18 U.S.C. 924(c)(1)(A) he'll be precluded from 4 having an "individualized sentence." The allegation seems to be that the judge in this case 5 will not be able to take into consideration the factors that, according to the evidence 6 introduced by a co-defendant informant, the defendant "purposely did not allow the weapons 7 used in the two armed robberies to be loaded with ammunition, thereby significantly 8 reducing the chances of anyone being hurt." The argument is that the court has no discretion 9 in sentencing the defendant. 10 In United States v. Jensen, supra. The court specifically ruled that such argument was

11 precluded by its decision United States v. Van Winrow, 951 F.2d 1069 (9th Cir. 1991). The 12 court rejected the argument regarding the imposition of a life sentence for three prior drug 13 convictions under 21 U.S.C. § 841(b)(1)(A). The court held that such sentences are 14 "individualized" according to quantity and variety of the narcotics possessed as well as the 15 number of prior felony convictions and thereby comport with due process. 16 In the case at bar, the sentences pursuant to 18 U.S.C. 924(c)(1)(A) are "individualized"

17 according to the sentencing scheme established by Congress. The sentencing scheme is 18 determined by whether a firearm was used to commit the armed robberies, whether the 19 firearm was brandished or whether it was discharged, and whether or not the defendant 20 convicted had a prior conviction under the statute. It is clear that Congress determined that 21 the possession, use, brandishing and discharging a firearm during a crime of violence, should 22 be punished according to the perceived dangers that each of these actions presented. 23 Congress also wanted to make it clear that more than one conviction under the statute would 24 be punished most severely. Each conviction is to be punished by a sentence to be served 25 consecutively to the punishment for the underlying violent crime in which a defendant is 26 convicted. The statute sets out with specificity what the statutory mandatory minimum 27 28
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1 sentence in each case will be. The court has discretion to sentence more severely up to life 2 imprisonment in each case. 3 For a first conviction under the statute of defendant is to receive a mandatory sentence of

4 five years for the possession of a firearm in a crime of violence. If the defendant brandishes 5 the weapon during the crime of violence, the statutory minimum sentence to be served is 6 seven years. If the firearm is discharged during the crime of violence, the mandatory 7 minimum sentence becomes ten years. Each of these sentences are to be served 8 consecutively to the punishment of the underlying violent crime in which the weapon was 9 utilized. 10 In the event of a subsequent conviction under the statute, the statutory minimum

11 sentence becomes a 25 year sentence to be served consecutively to the sentence for the 12 underlying crime. 13 In order for the court to sentence a defendant under the statute, a jury must find beyond a

14 reasonable doubt that the defendant possessed, brandished or discharged the firearm during 15 the commission of a violent crime. Apprendi v. New Jersey, 530 U.S. 466, 490-92 (2000). In 16 the case at bar, the jury was given a detailed form of verdict requesting that it find whether 17 defendant possessed, brandished or discharged a firearm during the armed robberies charged. 18 The jury made specific findings beyond a reasonable doubt that the weapon was used, 19 possessed and brandished during each of the robberies charged in counts 2 and 4 of the 20 superceding indictment. Therefore, the court must sentence the defendant to at least a 21 mandatory minimum term of imprisonment of seven years in count 3, to be served 22 consecutively to the sentence of imprisonment for the armed robbery in count 2. The court 23 must sentence the defendant for his subsequent conviction in count 5 to a minimum 24 mandatory sentence of 25 years to be served consecutively with the sentence of 25 imprisonment for the conviction of robbery in count 4. 26 The provisions at issue plainly demarcate the range of penalties that prosecutors and

27 judges may seek and impose. In light of that specificity, the power that Congress has 28
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1 delegated to those officials is no broader than the authority they exercise in enforcing the 2 criminal law. Having informed the courts, prosecutors and defendants of the permissible 3 punishment alternatives available under each title, Congress has fulfilled its duty. United 4 States v. Batchelder, 442 U.S. at 114; United States v. Cespedes, 151 F.3d at 1333, fn.1. So 5 long as Congress lays down by legislative act an intelligible principal governing the exercise 6 of delegated power, it has not unlawfully delegated its legislative power. J.W. Hampton, Jr., 7 & Co. v. United States, 276 U.S. 394, 409 (1928) (quoted in Touby v. United States, 500 U.S. 8 160, 165 (1991). The statute in question identifies with specificity the type of defendant and 9 the nature of the crimes that are to be considered for sentencing enhancement purposes, and 10 limits the choices of sentencing enhancement to a single decision of whether or not to seek 11 the higher sentence by filing under the statute. The statute provides a narrow window of 12 opportunity for the government to seek a sentence enhancement and a limited formula for 13 doing so, and it ensures that this opportunity is accompanied by multiple procedural 14 safeguards for the defendant. The provisions is carefully designed to insure that the 15 defendant has the opportunity to review the allegations and consider the consequences of his 16 decisions prior to trial, and the discretion conferred on the prosecutor does nothing to detract 17 from the achievement of this legislative purpose. Since the statute provides definite 18 boundaries on the discretion conferred on the Executive Branch and the discretion is 19 carefully tailored to achieve the statutory purpose, any delegation of legislative power would 20 be constitutional. 21 22 C. CRUEL AND UNUSUAL PUNISHMENT 23 The defendant alleges that the sentencing scheme under the statute imposes a sentence

24 not proportionate to the crime and that he will thereby be subjected to a cruel and unusual 25 punishment in violation of the Eight Amendment of the United States Constitution. 26 In order to comport with the Eighth Amendment "a criminal sentence must be

27 proportionate to the crime for which the defendant has been convicted." United States v. 28
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1 Cupa-Guillen, 34 F.3d. 860 (9th Cir. 1994); cert. denied, 513 U.S. 1120 (1995); Solem v. 2 Helm, 463 U.S. 277, 290 (1983). 3 In order for a sentence within the limits set by a valid statute to be able to overturned on

4 appeal as cruel and unusual punishment it must be so "grossly out of proportion to the 5 severity of that crime" as to shock our sense of justice. United States v. Cupa-Guillen, 34 6 F.3d at 864; cf. United States v. Vega-Mejia, 611 F.2d 751, 753 (9th Cir. 1979). The 7 defendant argues that because he has only one prior felony conviction, and given his age, that 8 the sentence required by the statute is in essence a life sentence, and therefore is "grossly 9 disproportional" to the crimes for which he was convicted - and is a cruel and unusual 10 punishment. 11 The same argument was made in United States v. Jensen, 452 F.3d at 708, wherein the

12 9th Cir. ruled that the argument was foreclosed by the Supreme Court's decision in Harmelin 13 v. Michigan, 501 U.S. 957, 1001 (1991). In that case, the court affirmed the imposition of a 14 life sentence for a first time conviction for drug possession holding that such sentence does 15 not violate the 8th Amendment. See also U.S. v. Van Winrow, 951 F.2d 1069, 1071, (9th Cir. 16 1991) (rejecting defendant's argument that the imposition of a life sentence for three prior 17 drug convictions was cruel and unusual punishment in violation of the 8th Amendment). 18 The threshold determination is whether a comparison of the crime committed and the

19 sentence imposed leads to an inference of gross disproportionality. Harmelin v. Michigan, 20 501 U.S., at 1005. The sentence the defendant faces pursuant to the statute will be based 21 upon the application of the statute which applies to all defendants who have been convicted 22 of armed bank robberies and of violations of 18 U.S.C. 924(c)(A) under the same provisions 23 of the statute as the defendant. His sentence is proportionate to all similarly situated 24 defendants - and is not so grossly out of proportion to the severity of the crime to shock our 25 sense of justice. United States v. Cupa-Guillen, 34 F.3d at 824 (citations omitted); Solem v. 26 Helm, 463 U.S. at 290. 27 28
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It is respectfully submitted that the court should deny the defendant's motion and

2 sentence the defendant pursuant to the United States Sentencing Guidelines and the 3 provisions in 18 U.S.C. 924(c)(1)(A). 4 5 6 7 8 9 10 I hereby certify that on November 29, 2005
I electronically transmitted the attached

Respectfully submitted this 29th day of November, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ ________________________________ CHARLES F. HYDER Assistants United States Attorneys

11 document to the Clerk's Office using the
CM/ECF system for filing and

12 transmittal of a Notice of Electronic Filing
to the following CM/ECF registrants:

13 14 15 16 17 Dana Carpenter, Esq. Attorney for Derrick L. McCreary 18 Tom Crowe, Esq. 19 Attorney for Dominic Austin 20 Benjamin N. Sternberg, Esq. Attorney for John Freemen Hunter 21 Steven C. Kunkle, Esq. 22 Attorney for Shadiq McNair 23 Darrin L. Harris U.S. Probation Officer 24 25 26 27 28
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RESPONSE TO DEFENDANT'S OBJECTIONS TO THE PRESENTENCE REPORT

s/ Joyce Stern

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