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August 29, 1988


Harold H. Greene, United States District Judge.

The opinion of the court was delivered by: GREENE


These cases all involve what may be called the second round of inquiry into the recently-enacted sentencing law and the guidelines issued pursuant thereto by the federal sentencing commission. An analysis of the facts and the law applicable to these cases indicates that the constitutional infirmities identified in the decisions handed down earlier this year by this and other courts do not by any means exhaust the list of problems presented by that statute and those guidelines. In fact, while most of the difficulties dealt with in the earlier decisions could probably be cured by a direct congressional enactment of the guidelines presently resting only on the authority of the commission, those being considered below appear to be far more intractable for they may be inherent in the fixed sentencing scheme established by the statute.


 On May 19, 1988, in United States v. Brodie, 686 F. Supp. 941 (D.D.C. 1988), this Court declared unconstitutional the newly-enacted federal sentencing statute, *fn1" as a large number of other district courts had done and were to do all over the nation. *fn2" At the same time, in accord with several other tribunals (though not all), the Court stayed the effect of its decision because of the deference it felt it owed to a congressional enactment. However, it has now become apparent, on the basis of actual experience, that the constitutional problems discussed in Brodie describe only the most broadly conceptual legal difficulties presented by the statute and the sentencing commission's guidelines. By contrast, the defects discussed herein go to the heart of the actual sentencing function. The Court has concluded, based on real life experience with the new scheme that, absent a Supreme Court decision upholding them, *fn3" it would be imprudent to continue to apply the guidelines because to do so would require the Court to take actions at odds with law, fairness, and the public interest.

 The difficulties with the guidelines are especially pronounced in the area of guilty pleas and plea bargaining -- activities which account for the bulk of the dispositions of criminal cases in the federal courts *fn4" as well as in the state courts. Unless the political branches of government are prepared to authorize the appointment of very large numbers of additional judges, prosecuting attorneys, and supporting personnel, as well as the relatively vast expenditure of funds that such measures would entail, plea bargaining will continue to occupy a prominent place in the achievement of criminal dispositions. *fn5"

 As explained below, the new sentencing statute and the guidelines are riddled with conceptual and practical dilemmas in the plea bargaining area. These dilemmas, in turn, make it difficult, if not impossible, for courts to apply the guidelines in many situations, unless they are to affront directly the aim of sentencing uniformity -- the central purpose of the new law -- or to trench deeply on safeguards for fairness explicitly provided for or implicit in the due process clause of the Constitution and the mandate of Rule 11, Fed. R. Crim. P. For these reasons, the Court has decided in the exercise of its discretion *fn6" that it should not continue to apply the new sentencing statute at this time. *fn7" Accordingly, it will now lift the stay of the enforcement of its May 19, 1988 decision which it issued sua sponte on that date.

 Several cases presently before the Court are directly affected by the infirmities and pitfalls inherent in the statute and the guidelines, and they illustrate the problems that broadly and detrimentally affect sentencing decisions at large. More specifically, the issues before the Court in the Bethancurt case discussed in Part II, infra, and those in the Goff-Robinson-Lugg cases discussed in Parts III and IV, infra, raise various aspects of the question whether the guidelines issued by the sentencing commission are consistent with continued large-scale plea bargaining and with fundamental fairness.


 Defendant Alcides del Rosario Bethancurt was indicted by a grand jury on May 19, 1988, of a violation of 18 U.S.C. § 1546 which renders illegal certain fraudulent activities, including forgery and misuse, with regard to alien registration cards, also known as "green cards." The maximum penalty provided by law for violation of this statute is imprisonment for a period of five years, or a fine of $ 250,000, or both, and a violation of the statute is a felony. Thereafter, on August 15, 1988, the United States Attorney filed an information to serve as a substitute for the earlier indictment, charging defendant with a violation of 18 U.S.C. § 1028(a)(4) which renders illegal various frauds in connection with identification documents. *fn8" The maximum penalty provided by law for violation of this statute is imprisonment for one year or a fine of $ 5,000 or both, and a violation is therefore a misdemeanor. The day the information was filed, the defendant appeared before the Court, offering to enter a plea of guilty to the section 1028 offense, a step that both sides described as being the product of a plea bargain.

 The Court requested the prosecution to make the factual proffer required by Rule 11(f), Fed. R. Crim. P., and that proffer revealed, as did the response of defendant's counsel, that the document which defendant had misused, was a "green card" as described in section 1546, rather than merely the less formal identification documents protected by section 1028. *fn9" In the course of the proceeding before the Court, the parties at times described the plea as being one to a lesser included offense which the prosecution was willing to accept under the circumstances. At the conclusion of the proceedings, the Court deferred a decision with regard to the acceptance of the plea.

 This kind of plea to a lesser offense, or to a smaller number of violations than alleged in the charging papers, has been customary for a long period of time in both federal and state courts. Such pleas not only have not been particularly unusual or often substantively unexceptional as means for disposing of the business of the criminal courts, but it has been regarded as doubtful by many authorities that the criminal justice system could continue to function effectively, in view of the high volume of criminal cases, without such plea bargains and the time and resources they save. *fn10"

 Prior to the enactment of the sentencing statute and absent the plea bargain, a judge could have imposed a sentence for the "green card" felony charged in Bethancurt's original indictment ranging from probation to imprisonment for five years. *fn11" The sentencing law and the guidelines effected a significant change in this respect. When the computation required by the guidelines is made, the sentence of imprisonment that must be imposed -- absent unusual or extraordinary factors justifying a departure *fn12" -- is from 0 to 4 months. *fn13" Since such a sentence reflects the judgment of the sentencing commission pursuant to the mandate of the Congress, the Court is of course bound by its judgment.

 As noted, the United States Attorney, pursuant to a plea bargain, reduced the charge against Bethancurt from the "green card" felony to the misdemeanor of a simpler type of fraud. This reduced offense carries a maximum penalty of imprisonment for a period of one year, and, had the crime been committed prior to the effective date of the sentencing statute, the Court would have had sentencing latitude from probation up to the one-year maximum. Under the new statute, the Court is, of course, once again bound to compute the sentence under the guidelines. Such a computation reveals a sentence of 0 to 4 months *fn14" -- identical to that required for the section 1546 felony. *fn15"

 The obvious effect of that concurrence in sentences is that Bethancurt will receive no sentencing benefit whatever from his plea: the sentencing range is the same either way, whether he pleads guilty to the felony or to the misdemeanor. *fn16" Indeed, the even more striking fact is that, if the defendant had elected to go to trial on the original felony charge and had been convicted of that charge following trial, rather than to plead guilty to the misdemeanor, his guideline sentence would have been no more severe in the former case than in the latter: it would be 0 to 4 months in each instance. *fn17"

 It is obvious from this discussion that, when in an instance such as this, a bargain for a misdemeanor guilty plea is made between the parties and accepted by the court, the defendant is in effect induced by the "system," including the judge, the prosecutor, and the defense attorney, to plead to what he believes to be a lesser offense -- lesser, that is, in its punitive consequences to him -- when, in fact, because of the guidelines, the sentence will in all probability be identical to that which could and would have been imposed had he proceeded to trial on the more serious charge or charges. The benefit to the defendant from giving up his right to a trial, with the ever-present possibility of an acquittal, will thus be entirely illusory. *fn18" It is unseemly, and it may be a violation of Rule 11, Fed. R. Crim. P., *fn19" and possibly of due process, to mislead the defendant in so fundamental a respect in order to induce him to plead guilty.

 In the view of this Court, it should not participate in a scheme which implicitly or explicitly promises the defendant that his plea will bring him more lenient treatment when, under the guidelines, that is not what will occur. More concretely, the Court has concluded that, in order to avoid misleading criminal defendants in this respect, it should advise such defendants of this fundamental fact at the time of the taking of the plea, or in any event prior to the time that sentence is imposed, so as to permit a withdrawal of the guilty plea.

 If other judges should agree with this assessment, the result may well be that the number of consummated plea bargains will fall substantially, while the number of trials in criminal cases will rise to a corresponding degree. That, however, is an inevitable consequence of the new sentencing law and procedures, coupled with the need for fairness in the administration of justice.

 For the reasons stated, defendant Bethancurt will be recalled before the Court; the Court will explain to him the consequences of the various courses of action as related above; and it will afford him the opportunity to withdraw his guilty plea at that time or to reaffirm that plea after having been fully apprised of the available options.


 The Court now considers the second alternative: that a plea bargain results in punishment that is substantially less severe than would have been imposed but for the bargain. This alternative, while obviously avoiding the pitfall discussed in Part II, supra, gives rise to another, equally disturbing problem: disparity in sentencing between equally situated defendants will not be alleviated by application of the new statute but the responsibility therefor will merely be shifted from the judge to the prosecutor. The Goff-Robinson-Lugg cases suffer from and illustrate this difficulty.

 On April 13, 1988, a grand jury returned separate indictments against defendants Corinthia Robinson and Sharon Goff, charging each with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a); managing an apartment for the purpose of unlawfully distributing cocaine base (operating a "crack" house), in violation of 21 U.S.C. § 856; and carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). A superseding indictment was returned on May 9, 1988, reiterating the previously charged counts against Goff and Robinson, and additionally charging these two defendants as well as Esric Lugg and several others with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846.

 Due to the quantity of drugs involved in the possession with intent to distribute charges, defendants Goff and Robinson, if found guilty, would each have been required to serve a minimum sentence of imprisonment mandated by Congress: in the case of Goff, this would have been a ten-year mandatory minimum due to her alleged possession of 50 grams or more of cocaine base, 21 U.S.C. § 841(b)(1)(A); and in the case of Robinson, a five-year mandatory minimum due to her alleged possession of 5 grams or more of cocaine base, 21 U.S.C. § 841(b)(1)(B). Further, if Goff and Robinson were found guilty of using a gun in the commission of these drug crimes, they would have faced an additional statutorily-required consecutive five-year sentence. 18 U.S.C. § 924(c). Thus, had they gone to trial and been found guilty of all the charges levied against them, the Court would have been required by statute to impose, at a minimum, a fifteen-year sentence of incarceration on Goff, and a ten-year sentence on Robinson. Defendant Lugg, on the other hand, who was charged only with conspiracy, was not exposed to any mandatory minimum.

 On June 23, 1988, with the agreement of the prosecution, Robinson and Goff entered guilty pleas to the single charge of maintaining a place for storing and distributing a controlled substance, an offense which carries no statutory minimum sentence. Under the terms of the plea bargains, the prosecution agreed to dismiss all the remaining counts of the indictment upon defendants' cooperation, *fn20" and to move the Court for a departure from any sentence of imprisonment mandated by the sentencing guidelines. *fn21" Defendant Lugg was tried and convicted on June 29, 1988 of conspiracy, the only crime with which he was charged. The consequences of these events are interesting; they highlight the problems with the new law and the guidelines; and they have given rise to persuasive representations by Lugg's counsel.

 With respect to the single offense to which the prosecution indicated its willingness to accept guilty pleas from Goff and Robinson in lieu of the four initial charges, the sentencing commission guidelines provide for each defendant a range of imprisonment of from 21 to 27 months, n22 compared to the 180 months minimum *fn23" required by statute for Goff and the 120 months minimum *fn24" for Robinson on those original charges (which presumably reflect the actual offense behavior of these defendants). *fn25" Additionally, as indicated above, the prosecution has promised that it will move the Court for a further reduction of the sentences by a departure from the guidelines. n22 This guideline range is arrived at as follows: Base offense level for maintaining premises 16 Possession of firearm in commission Acceptance of responsibility -2 Total offense level 16 Criminal history level I


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