United States v. Poland , 562 F.3d 35 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 08-1203
UNITED STATES OF AMERICA,
Appellee,
v.
JONATHAN POLAND,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, Federal
Public Defender's Office, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Paula D. Silsby, United States Attorney, was on brief for appellee.
April 2, 2009
BOUDIN, Circuit Judge. The issue the parties have
framed on this appeal is whether, where the district court adjusts
a prior sentence to account for post-sentence cooperation by the
defendant, the adjustment may reflect factors other than that
cooperation. We sustain the district court's disposition of this
case but on a narrower ground, deferring until necessary the larger
issue--which may arise only rarely and implicates a difficult and
delicate issue of statutory construction.
The defendant, Jonathan Poland, was eighteen years and
three months old when he and his seventeen-year old cousin (who was
just shy of his eighteenth birthday) made and detonated two pipe
bombs during the Spring of 2004. Poland was indicted and convicted
of unlawfully possessing an unregistered destructive device, 26
U.S.C. §§ 5861(d), 5841, 5845(f), 5871 (2006), and use of an
explosive to maliciously damage or destroy property used in
interstate commerce, 18 U.S.C. § 844(i) (2006).
The explosion caused little damage but was close to a
truck stop office and fuel of various kinds and so was no minor
prank. Poland was sentenced to 63 months imprisonment, the three
months over and above the mandatory minimum sentence of 60 months
being added because he committed perjury during a suppression
hearing. Poland appealed, but later withdrew the appeal and
cooperated with the government.
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The cooperation led to successful government proceedings
against Poland's cousin but, the matter having begun with a
juvenile charge, the cousin received a sentence of only three
months. After Poland cooperated, the government moved to reduce
Poland's sentence to 48 months. Fed. R. Crim. P. 35(b)(1). Poland
sought a sentence below 48 months, arguing that all of the ordinary
statutory factors could be considered afresh, see 18 U.S.C. §
3553(a), and stressing the much longer sentence he received
compared to his cousin.
At a hearing on the motion, the district judge asked the
parties to address the impact of new language in Rule 35(b). Under
precedents construing former versions, sentencing courts may
consider only the extent of the cooperation given in calculating
the reduced sentence. The district court noted that both the
rule's new language and an advisory committee note suggested that
on re-sentencing any of the factors identified in 18 U.S.C. §
3553(a) could now be considered. The pertinent language of the
respective changes appears below.
In the end, the district court held that to so read the
new rule would work a substantive change and violate the Rules
Enabling Act, 28 U.S.C. § 2072(a). United States v. Poland, 533
F. Supp. 2d 199, 210 (D. Me. 2008). To avoid this outcome, the
district court followed precedent under the old rule and held that
"the new Rule 35(b) . . . limit[s] the judge, as before the
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amendment, to consider only substantial assistance factors in
support of the amount of a reduction, notwithstanding the amendment
and the Advisory Committee Note." Id. at 211.
The government's recommendation did not bind the district
court, which concluded that a reduction to 40 months properly
accounted for the cooperation provided by Poland. However, the
court said that were it free to consider factors other than
cooperation--in particular "the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct," 18 U.S.C. § 3553(a)(6)--it would
reduce Poland's sentence to 30 months. Id. at 213-14.
Poland now appeals, arguing that under the current Rule
35(b), the judge was free once the motion was made to consider
factors other than cooperation in reducing the sentence. We have
jurisdiction over the appeal, 28 U.S.C. § 1291; United States v.
McAndrews, 12 F.3d 273, 277-78 (1st Cir. 1993); and, as the issue
is whether the district court misinterpreted governing law, review
is de novo and our authority to provide it is clear despite a
circuit split that might matter if the issue were not purely
legal.1
1
Other circuits, disagreeing with McAndrews, regard the
appealability of a Rule 35(b) decision as limited by 18 U.S.C. §
3742, e.g., United States v. Haskins, 479 F.3d 955, 957 (8th Cir.
2007) (per curiam), but even if that limitation applied, the claim
here would be reviewable because--if the district court were
mistaken--the sentence would reflect a mistake of law and so be
"imposed in violation of law" under section 3742(a)(1).
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The merits of the legal issue, to which we now turn,
require a precise understanding of how Rule 35(b) evolved. Before
the sentencing guidelines, Rule 35(b) permitted a sentencing judge
to reduce a sentence, more or less without condition, within 120
days of the sentence or disposition of any appeal. This open ended
approach was substantially altered by the Sentencing Reform Act of
1984, Pub. L. No. 98-473, Title II, 98 Stat. 1987 ("the Reform
Act"), which adopted a framework for sentencing guidelines that
aimed at restricting the discretion of judges in initial
sentencing.
Consonantly, the Reform Act limited the judge's authority
to alter a final sentence, confining it to three categories, 18
U.S.C. § 3582(c), of which only one directly concerns us. It
reads:
The court may not modify a term of
imprisonment once it has been imposed except
that--
(1) in any case--
....
(B) the court may modify an imposed term of
imprisonment to the extent otherwise expressly
permitted by statute or by Rule 35 of the
Federal Rules of Criminal Procedure . . . .
The Reform Act also rewrote Rule 35(b) to provide:
The court, on motion of the Government, may
within one year after the imposition of a
sentence, lower a sentence to reflect a
defendant's subsequent, substantial assistance
in the investigation or prosecution of another
person who has committed an offense, in
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accordance with the guidelines and policy
statements issued by the Sentencing Commission
. . . .
Reform Act of 1984, § 212(b)(emphasis added).
Before the Reform Act became effective in 1987, Congress
again added provisions to both 18 U.S.C. and to Rule 35, which
furnished the district court authority, in both initial sentencing
and re-sentencing, to impose sentences below prescribed statutory
minimums based on a government substantial assistance motion, Anti-
Drug Abuse Act of 1986, Pub. L. No. 99-570, Title I, §§ 1007, 1009,
100 Stat. 3207-08 (1986); but we defer discussion of those changes.
Given the underscored language of Rule 35(b) as amended
by the 1984 Reform Act--"to reflect a defendant's subsequent,
substantial assistance"--other circuit courts (unsurprisingly)
concluded that only the defendant's substantial assistance could be
considered in granting or measuring a Rule 35(b) reduction. E.g.,
United States v. Chavarria-Herrara, 15 F.3d 1033, 1037 (11th Cir.
1994). This circuit (and other circuits) similarly construed
parallel language in the statute that permits a sentence below a
statutory minimum to reflect substantial assistance. E.g., United
States v. Ahlers, 305 F.3d 54, 60 (1st Cir. 2002).
In 2002, in re-drafting the rules to improve clarity, the
advisory committee proposed a "stylistic" change to Rule 35(b),
excising the language that required that a reduced sentence
"reflect" a defendant's substantial assistance. Fed. R. Crim. P.
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35 advisory committee's note, 2002 amendments. Instead, the 2002
text provided only that "reducing the sentence accord[] with the
Sentencing Commission's guidelines and policy statements."2
In fact, neither before nor after has the Commission
adopted guidelines or policy statements directed to post-sentence
reductions based on substantial assistance. There has been from
the outset a general guideline provision, not using "reflect"
language, for guideline departures based on substantial assistance,
seemingly directed to original sentencing. U.S.S.G. § 5K1.1. This
circuit, and other courts, read this guideline as implicitly
incorporating such a requirement. United States v. Chestna, 962
F.2d 103, 106-07 (1st Cir.), cert. denied 506 U.S. 920 (1992).
Despite the 2002 elision, the few circuits to address the
issue continued to read Rule 35(b) as limiting post-sentence
reductions to assistance-related factors. E.g., United States v.
Dobson, No. 07-15732, 2008 WL 4962927 at *2-3 (11th Cir. Nov. 21,
2008) (unpublished); United States v. Lindsay, 254 F. App'x. 168,
169-70 (4th Cir. 2007) (unpublished), cert. denied 128 S.Ct. 1688(2008). Precedent is limited because many circuits limit a
defendant's ability to appeal decisions on Rule 35(b) motions.
E.g., Haskins, 479 F.3d at 957.
2
Since 1984, a number changes have been made to Rule 35(b);
for example, the rule was altered in 2004 to allow consideration fo
assistance provided after one year after sentencing but only under
stated conditions. Our discussion of rule changes is limited to
those material to the present case.
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The next step in the chronology was the Supreme Court's
2005 decision in United States v. Booker, 543 U.S. 220 (2005),
making the guidelines advisory rather than mandatory to save them
from constitutional invalidity. Thereafter, apparently believing
that Booker required this change, the advisory committee
recommended deletion of Rule 35(b)'s then existing requirement that
a sentence reduction "accord[] with the Sentencing Commission's
Guidelines and policy statements,"3 and the deletion was adopted
through the rules process effective December 1, 2007.
Rule 35(b) now reads in relevant part, and so read when
the district court considered the government motion in this case,
as follows:
Upon the government's motion made within one
year of sentencing, the court may reduce a
sentence if the defendant, after sentencing,
provided substantial assistance in
investigating or prosecuting another person.
If this language alone were considered, Poland might well plausibly
argue that a re-sentencing court could, in granting a substantial
assistance motion, consider other factors and not just substantial
assistance in setting the new sentence.
3
Memorandum from Booker Subcomm. to Advisory Comm. on Criminal
Rules, 4 (Mar. 15, 2005), available at
http://www.uscourts.gov/rules/Agenda_Books.htm#criminal. This view
was contrary to that of the Sentencing Commission staff. Letter
from Judith W. Sheon, Staff Director, Sentencing Commission, to the
Standing Committee (Feb. 15, 2006), available at
http://www.uscourts.gov/rules/CRRules2005.htm.
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This is so even though the language changes that produced
the present rule resulted from two apparent mistakes. The first is
the advisory committee's belief that deleting the limiting
"reflect" language from Rule 35(b) in 2002 was mere clarification;
the second is its view that Booker compelled it to delete in 2007
the remaining reference to the guidelines. The former error is
patent, although temporarily masked by the reference to the
guidelines, and stands as caution to restyling projects.
As for the second change, the revisors' view (although
shared by the Ninth Circuit, United States v. Hicks, 472 F.3d 1167(9th Cir. 2007)), quite probably misreads Booker. The jury trial
concerns that led to invalidating mandatory guidelines for initial
sentencing do not bear equally on every regulation of sentencing.
Booker's Sixth Amendment rationale built on a tension with jury
trial values insofar as the guidelines mandated an increased
penalty because of additional conduct (e.g., using a gun, harming
a victim) found only by the judge rather than the jury.
Neither the language of Booker nor its rationale appears
to constrain Congress' power to delimit, whether by guideline or
otherwise, the conditions on which judges may reduce sentences once
imposed; Congress can surely decide whether and when any reductions
are allowed and surely as well who should make the downward
adjustment and on what basis. Cf. United States v. Fanfan, No.
08-2062, 2009 WL 531281, at *4, ___ F.3d ___ (1st Cir. Mar. 4,
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2009) (constraining downward adjustment under 18 U.S.C. § 3582(c)
based on revision of crack cocaine guideline).
But despite faulty premises, the 2002 and 2007 changes in
Rule 35(b) were adopted through the rulemaking process, and laws
based on mistaken premises, whether legal or factual, are not
uncommon and are commonly given effect. Cf. Pernell v. Southall
Realty, 416 U.S. 363 (1974). So such rule changes arguably control
unless barred by the Rules Enabling Act, which famously authorizes
"procedural" rules and provides that "[s]uch rules shall not
abridge, enlarge or modify any substantive right." 28 U.S.C. §
2072(b).
The district court said that stripping out Congress'
"reflect" language from Rule 35(b) and the limiting reference to
the guidelines would comprise such a "substantive" change barred by
the Rules Enabling Act; thus, the judge read back into the rule the
"requirement that the reduction 'reflect' the 'subsequent
substantial assistance.'" Poland, 533 F. Supp. 2d at 211. This,
the judge said, brought back into play earlier case law almost
uniformly reading such language to exclude non-assistance factors
in determining such a reduction.
The Rules Enabling Act's key language is opaque and its
few constructions have occurred in quite different contexts.
Burlington N. R.R. Co. v. Woods, 480 U.S. 1 (1987); Sibbach v.
Wilson, 312 U.S. 1 (1941). Among other difficulties, the statute
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brings into play both an enduring conundrum--the line between
substance and procedure--and the puzzle of the statute's reference
to "rights."4 The rules process is among the most important
endeavors in the judiciary; any constraining construction of the
statute could have far reaching implications.
The sentencing question in our case arises out of a fact
pattern that may not be common: usually the only new fact on a Rule
35(b) motion will be the substantial assistance furnished since
other factors will have already been fully considered; it is the
peculiarity here of the belated sentence for Poland's cousin that
created a second argument for a reduction after the original
sentence. So we choose to affirm the district court's outcome on
a narrower ground and defer for now any encounter with the Rules
Enabling Act.
Poland's reduced sentence was below the statutory
minimum of sixty months. 18 U.S.C. § 844(i). Had the substantial
assistance reduction Poland received occurred at the time of his
initial sentencing, it would have been governed by 18 U.S.C. §
4Examples of the vast literature on the topic are Steven B.
Burbank, The Rules Enabling Act of 1934, 130 U. Pa L. Rev. 1015
(1982); John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L.
Rev. 693 (1974); Leslie M. Kelleher, Taking "Substantive Rights"
(in the Rules Enabling Act) More Seriously, 74 Notre Dame L. Rev.
47 (1998); Martin H. Redish & Dennis Murashko, The Rules Enabling
Act and the Procedural-Substantive Tension: A Lesson in Statutory
Interpretation, 93 Minn. L. Rev. 26 (2008).
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3553(e), which was added to the Reform Act by the previously cited
Anti-Drug Abuse Act of 1986; the provision states (emphasis added):
Upon motion of the Government, the court shall
have the authority to impose a sentence below
a level established by statute as a minimum
sentence so as to reflect a defendant's
substantial assistance in the investigation or
prosecution of another person who has
committed an offense. Such sentence shall be
imposed in accordance with the guidelines and
policy statements issued by the Sentencing
Commission pursuant to section 994 of title
28, United States Code.
Rule 35(b) similarly provides, in language also added in
1986 by the same statute and now in subsection (4), that on the
government's motion based on substantial assistance, "the court may
reduce the sentence to a level below the minimum sentence
established by statute." Traditionally, the reductions for
substantial assistance below the statutory minimum--whether at
initial sentencing or on sentence reduction--have been governed by
the same standards, see, e.g., United States v. Doe, 940 F.2d 199,
203 n.7 (7th Cir.), cert. denied 502 U.S. 869 (1992), as Congress
doubtless intended.
Courts would surely have reached this result in re-
sentencing cases, even if Congress had not echoed the "reflects"
language in the Reform Act's version of Rule 35(b). Had that
phrase been omitted, the courts would still have construed the two
enactments in para materia, there being no obvious reason why
Congress would want the reflects limitation to apply in one context
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but not in the other. Cf. In re Sealed Case No. 97-3112, 181 F.3d
128, 133 (D.C. Cir. 1999) (noting Rule 35(b), § 3553(e), and §
5K1.1 are to be read "in pari materia"). For mandatory minimums,
but perhaps only for mandatory minimums, the 2002 deletion of the
"reflects" language in the rule may be merely "stylistic."
To put the matter differently, we hold that for re-
sentence adjustments that go below the statutory mandatory minimum,
Rule 35(b) must be read in conformity with 18 U.S.C. § 3553(e).
Congress has never changed the statutory rule that such reductions
must reflect only the assistance provided. Nor is there anything
in the "legislative history" of changes to Rule 35(b) that reflects
any desire to create a discrepancy for post-sentence adjustments
below the mandatory minimum.
Poland's statutory mandatory minimum sentence is 60
months. The district court was entitled to reduce the sentence to
reflect the assistance provided, which it calculated to justify a
sentence of 40 months. It could not, as we read Rule 35(b),
provide a greater reduction below the mandatory minimum for any
other reason. This disposes of Poland's reliance on comparability
with his cousin, any alternative interpretation of U.S.S.G. § 5K1.1
or otherwise pertinent sentencing factors prescribed by Congress.
Affirmed.
-Concurring Opinion Follows-
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TORRUELLA, Circuit Judge (Concurring). I join the
result, but write separately to express my views on our current
sentencing regime as it affected this case.
As set forth below, all of the parties, including the
district court, agreed that the sentencing disparity between
Poland's sentence and his cousin's juvenile sentence supported a
sentencing reduction to lessen that disparity. The plain text of
Federal Rule of Criminal Procedure 35(b), after amendments made to
it in 2002 and 2007, permitted such a reduction. The parties and
the district court, however, got caught up in the minutiae of
whether those amendments, the latter inspired by Booker, allowed
the district court to provide such a reduction. Although I agree
with the ultimate result given the existing state of the law, and
thus join the majority's affirmance, I find the events that led to
that result troubling.
In order to understand my concerns, I will provide some
background that was not essential to the majority opinion but is
relevant here. After Poland cooperated, the government filed a
motion to reduce Poland's sentence under Rule 35(b), recommending
a 48-month sentence. Poland filed a responsive memorandum, urging
the district court to look beyond the factors outlined in U.S.S.G.
§ 5k1.1 and consider all factors under 18 U.S.C. § 3553(a). Poland
specifically asked the court to consider the disparity between
Poland's sentence (63 months) and his cousin's (3 months).
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A hearing on the government's motion was held on
January 9, 2008. The district court prefaced the hearing by asking
the parties to address the recent 2007 amendments to Rule 35(b),
which had occurred a month earlier. The government, going first,
explained that Poland's cooperation alone "is clearly worthy of
more than what we have asked for," but made its recommendation in
order to reflect Poland's delay in cooperating until after
sentencing and his obstruction of justice prior to his decision to
cooperate. The government then emphasized that Poland's cousin
"received a substantially, substantially less sentence than
Jonathan did," that "the juvenile sentence . . . is not even on the
radar screen," and that "the disparity between the two sentences is
difficult for me to justify at this point," given that "the
juvenile was more culpable and did more."
When asked by the district court whether the court was
permitted to consider "the 3553(a) factors," and, in particular,
the sentencing disparity in reducing Poland's sentence, the
government responded:
I do, I do. I -- at your request I read the
rule, I read the notation, the commentary to
the rule, and it was very clear -- I had a
discussion with [Poland's counsel] about it,
it was clear to both of us -- that, like a
typical sentencing, not a re-sentencing or
situation such as this, if you were -- you are
essentially to treat the Rule 35 motion in the
light you would a -- if you were re-sentencing
Mr. Poland today because you may look beyond
the guidelines at 3553(a) factors. And the
language of the statute used to be simply that
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you looked at the guidelines, which of course
the Court knows is now advisory. So I read
that to mean that the book is open in terms of
the factors that you may consider both in the
advisory guidelines as well as 3553(a) factors
in coming to a conclusion as to what
percentage of a departure should be imposed if
a departure should be imposed.
So I do believe you can follow 3553(a).
I would encourage the Court to do so. I
certainly did so in general terms,
theoretically, in coming up with the reasons
why a Rule 35 motion was appropriate. But I
do think that Mr. Poland has a number of
indicia in his case that speak directly to
many of the factors in 3553(a), such as the
comparison of his behavior to that of a
juvenile and the disparity between their
sentences.
When asked, the government clarified that its recommended sentence
of 48-months did not reflect the disparity between Poland and his
cousin's sentences, but admitted that "I don't disagree with
anything that [Poland's counsel] said in his response." The
district court asked if the government's "agreement that the
[3553(a)] factors can govern reflect your office's consideration of
the significance of this change?" The government responded that
the "appellate division" had not addressed the issue.
After the hearing, the government attorney consulted with
the U.S. Attorney's Office to determine its position. On
January 10, 2008, the government filed a memorandum clarifying that
position. In the memorandum the government stated that "while the
Court may consider 3553(a) factors in reducing Defendant's
sentence, it is the Government's position that it may do so only in
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determining to what extent to reduce the sentence based on
Defendant's cooperation." Foreshadowing the majority's reasoning,
the Government then stated that "the extent of any reduction is
strictly limited by 18 U.S.C. § 3553(e) in this case as a result of
the mandatory minimum."
With this background in mind, I stress my discomfort with
a sentencing regime (including its mandatory minimum sentences) in
which the good faith efforts of the parties and the district court
to do the right thing and reflect the disparity between Poland's
sentence and his cousin's sentence, were essentially derailed by
the complexity and uncertainty of the existing state of the law.
The district judge, in fact, stated outright that "[i]f [it] were
able to consider these additional § 3553(a) factors, [it] would
reduce the defendant's sentence to thirty months." United States
v. Poland, 533 F. Supp. 2d 199, 214 (D. Me. 2008). Instead, the
district court was reduced to divining the propriety of several
changes to Rule 35(b) in light of Booker, ultimately expressing
some concern that a unconstrained interpretation of Rule 35(b) may
violate the Rules Enabling Act, an Act which, as the sentencing
court admitted, has never in its history caused the Supreme Court
to invalidate a rule. See id. at 210-11 (citing sources).
I also express disappointment with the government's
change of position. That said, the government did go to great
pains to point out that the disparity between Poland's sentence and
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his cousin's sentence was "difficult . . . to justify at this
point" and expressed great sympathy with Poland's position that the
sentencing disparity should be considered. It is troubling that
such concerns had to fall by the way side.
Taken together, the district court's and the government's
actions are indicative of a sentencing regime (in particular, the
mandatory minimum in this case) containing little flexibility. In
the real life scenario of sentencing, such a regime makes little
sense because it takes away much of the discretion from where it
should be, those on the front lines of the criminal justice system.
Our sentencing regime reflects the work of persons with a
background of much theory and little practice in the art of
sentencing. I do not begrudge the district court for its care in
attempting to reach the right conclusion. The issue before us is
difficult, and given the existing state of law, I am forced to
agree with the result. But I am also obliged to vent my
frustration with the situation in which we find ourselves mired, a
sentencing regime plagued with uncertainty and rigidity.
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