U.S. v. Ives ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-1259
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID GLENN IVES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
( February 16, 1993)
Before REAVLEY, KING and WIENER, Circuit Judges.
KING, Circuit Judge:
After pleading guilty to the charge that he distributed
amphetamine in violation of 21 U.S.C. § 841(a)(1), David Glenn
Ives was sentenced by the district court to ninety-seven months'
imprisonment. On appeal, Ives raises a single claim: that the
district court erred by refusing to depart downward in order to
"harmonize" Ives' sentence with the considerably lesser sentences
given to Ives' equally culpable co-conspirators. Finding no
error, we affirm.
Because Ives raises only a single issue of law on appeal, we
dispense with a full recitation of the facts. We simply note
that Ives' co-conspirators received sentences substantially less
severe than Ives' sentence of ninety-seven months' imprisonment.1
We also observe that it appears from the district court's
comments at Ives' sentencing hearing that one or more of these
co-conspirators were equally or more culpable than Ives. The
district court was sympathetic to Ives' arguments but stated
that, under the United States Sentencing Guidelines, he had no
authority to depart downward for the purpose of achieving
sentencing parity or equity between similarly situated co-
defendants.
Although an issue of first impression in this circuit, this
very question has been decided by numerous other federal courts
of appeal. Although there is a small degree of intra- and inter-
circuit conflict, the clear trend has been to hold that a
district court may not under any circumstances depart from a
recommended Guidelines' sentence -- either upward or downward --
for the purpose of achieving parity or equity between co-
defendants.2
1
Numerous other co-conspirators received sentences ranging
from twelve to thirty-six months of actual prison time. The
sentences were primarily the result of prosecutors' charging
decisions, resulting from plea-bargains, not because of an
exercise of unbridled discretion by sentencing courts.
2
See, e.g., United States v. Wogan, 938 F.2d 1446, 1448-
1449 (1st Cir. 1991), cert. denied, 112 S. Ct. 441 (1991); United
States v. Joyner, 924 F.2d 454, 460-462 (2nd Cir. 1991); United
States v. Higgins, 967 F.2d 841, 845 (3rd Cir. 1992); United
States v. Kant, 946 F.2d 267, 270 n.3 (4th Cir. 1991); United
States v. Geesa, 944 F.2d 265, 270 (6th Cir. 1991) (noting intra-
circuit conflict), vacated upon decision to reconsider the issue
en banc, 944 F.2d 271 (6th Cir. 1991); United States v. Cea, 914
F.2d 881, 889 (7th Cir. 1990); United States v. Torres, 921 F.2d
196, 197 (8th Cir. 1990); United States v. Majia, 953 F.2d 461,
468 (9th Cir. 1991) (noting intra-circuit conflict); United
Citing the distinct minority position, see United States v.
Ray, 920 F.2d 562, 567-68 (9th Cir. 1990); United States v.
Nelson, 918 F.2d 1268, 1275 (6th Cir. 1990), Ives proposes that
we should adopt a rule that permits a district court to depart
downward in order to assure sentencing equity between co-
defendants. Ives' argument in support of his proposal is as
follows: Although the Sentencing Guidelines expressly
contemplate that there will inevitably be some sentencing
disparities between co-defendants, see Joyner, 924 F.2d at 454,
such differentials should only be the result of "reasoned"
sentencing factors entering into a district court's calculations
under the Guidelines' sentencing mechanism. "Reasoned" factors,
according to Ives, include a defendant's unique criminal history,
the degree of the defendant's involvement in a criminal
enterprise, whether he accepted responsibility for the crime, and
the like. Ives argues that such factors contributing to
disparate sentencing of co-defendants are perfectly reasonable.
We agree.
However, Ives further argues that sentencing disparities
that result from such determinative factors as a prosecutor's
(often seemingly arbitrary) decision to plea bargain favorably
with one co-defendant and unfavorably with a similarly situated
co-defendant are "unreasoned." Ives suggests that a district
court should have the discretion to depart downward in order to
States v. Jackson, 950 F.2d 633, 637-38 (10th Cir. 1991); United
States v. Hendrieth, 922 F.2d 748, 752 (11th Cir. 1991).
3
correct such unwarranted disparities that would otherwise result
from a mechanical application of the Guidelines. Here we must
disagree.3
Because the Constitution is not implicated, resolution of
this issue must occur within the confines of the applicable
statute and the United States Sentencing Guidelines. The
operative provisions are 18 U.S.C. § 3553(b) and U.S.S.G.
§ 5K2.0. Those provisions state that a district court may depart
from the recommended Guidelines' sentence only in two instances.
First, departure is warranted when the Guidelines expressly
permit it based on specified aggravating or mitigating factors;
second, a district court may depart when "the court finds that
there exists an aggravating or mitigating circumstance of a kind
or to a degree not adequately taken into consideration by the
Sentencing Commission in formulating the [G]uidlines that should
result in a sentence different from that [recommended]." Nowhere
in the Guidelines is the existence of disparate sentences among
co-defendants listed as a permissible aggravating or mitigating
circumstance.
3
We hardly dispute that the occurrence of disparities among
similarly situated co-defendants is a recurring feature of our
criminal justice system, on both the state and federal levels.
We observe that this has always been true, including well before
the advent of structured discretion in the Sentencing Guidelines.
Disparate sentencing appears to some degree inherent in our
system. The Supreme Court has been repeatedly reminded of this
fact and has consistently held that, even in the special context
of the death penalty, there is nothing unconstitutional about it.
See, e.g., Gregg v. Georgia, 428 U.S. 153, 199-200 & n.50 (1976)
(plurality opinion); Pulley v. Harris, 465 U.S. 37, 43 (1984).
4
Thus, the only way disparate sentences could constitute a
reason for departure would be if they qualify as either an
aggravating or mitigating factor. Following the lead of at least
two other circuits, we hold that Ives' claim fails because
disparity of sentences among co-defendants simply cannot be
deemed an aggravating or mitigating circumstance. As such, it is
not a proper basis for departure, either upward or downward. See
United States v. Higgins, 967 F.2d 841, 845 (3rd Cir. 1992);
United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir. 1991).4
Accordingly, the district court properly refused to depart
downward in Ives' case.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
4
Again, turning to the Supreme Court's capital
jurisprudence, we note that the Court has repeatedly held that
"aggravating" and "mitigating" factors are only those things that
relate to the "defendant's character or record or any of the
circumstances of the offense." See, e.g., Eddings v. Oklahoma,
455 U.S. 104, 110 (1982).
5