United States v. Jackie D. Long, Robert F. Money, United States of America v. Keith A. Griffin

911 F.2d 1482, 1990 U.S. App. LEXIS 15350, 1990 WL 124298

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 28, 1990
• Docket: 89-3942, 89-4007
• Status: Published

Opinions

JOHNSON, Circuit Judge:

This case comes to us on defendant Griffin’s motion to dismiss the government’s appeal.

FACTS

The defendants, Keith Griffin, Jackie Long and Robert Money (“the defendants”), pled guilty to conspiracy to interfere with civil rights after they were indicted for burning a cross in front of a black family’s home. The district court sentenced Long and Money on October 6,1989, and Griffin on October 27, 1989. The district court rejected the government’s argument that the defendants’ sentences should be enhanced under the Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual § 2H1.2. Accordingly, the district court found that the defendants’ offense level was thirteen, rather than seventeen as the government urged.

The government appeals the sentence under 18 U.S.C.A. § 3742. In accordance with the approval requirements of Section 3742, the government recommended appeals of Long’s and Money’s sentences to the Solicitor General on November 2,1989.¹ The November 2 request did not ask for permission to appeal Griffin’s sentence because the transcript from Griffin’s sentencing hearing was not yet complete. The November 2 request was accompanied by a memorandum outlining the facts of the case, the district court’s ruling, and the issues for the proposed appeal against each defendant, including Griffin. The Solicitor General signed an authorization slip for appeal of Long and Money's sentences on November 6,1989. On November 15,1989, after reviewing the sentencing transcript in Griffin’s case, the government submitted a second memorandum to the Solicitor General, asking for permission to appeal Griffin’s sentence. The Deputy Solicitor General, acting on behalf of the Solicitor General, signed an authorization slip for appeal of Griffin’s sentence on November 17, 1989.²

ANALYSIS

Griffin now moves to dismiss the government’s appeal, arguing that under section 3742(b)’s requirement that the government obtain personal approval of appeals from the Attorney General or the Solicitor General, the Deputy Solicitor General’s approval of the present appeal is invalid. The consequence of accepting Griffin’s argument would be to disrupt the internal operations of the Department of Justice by prohibiting the Attorney General and the Solicitor General from transferring these tasks to their subordinates when they are occupied with other business. Accordingly, we reject Griffin’s interpretation of Section 3742(b).

Section 3742 creates for the first time a comprehensive system for appellate review of sentences. S.Rep. No. 225, 98th Cong.2d Sess. 155, reprinted in 1984 U.S. Code Cong. & Admin.News 3182, 3338. Congress designed the statute to focus the appellate courts’ attention on those sentences for which review is crucial to the proper functioning of the sentencing guidelines and to provide a means to correct erroneous and clearly unreasonable sentences. Id. Congress determined that government appeals of sentences below the applicable guideline range were necessary to this system. Congress found:

If only the defendant could appeal his sentence, there would be no effective opportunity for the reviewing courts to correct the injustice arising from a sentence that was patently too lenient. This consideration has led most Western nations to consider review at the behest of either the defendant or the public to be a fundamental precept of a rational sentencing system, and the Committee considers it to be a critical part of the bill’s sentencing structure. The unequal availability of appellate review, moreover, would have a tendency to skew the system, since if appellate review were a one way street, so that the tribunal could only reduce excessive sentences but not enhance inadequate ones, then the effort to achieve greater consistency might well result in a gradual sealing down of sentences to the level of the most lenient ones. Certainly the development of a principled and balanced body of appellate case law would be severely hampered.

Id. at 151, 1984 U.S.Code Cong. & Admin. News at 3334.

Congress imposed the restriction at issue in the present case in order to assure that appeals are not routinely filed for every sentence below the guidelines. Id. at 154, 1984 U.S.Code Cong. & Admin.News at 3337. This policy may be fulfilled, however, without interpreting the personal approval requirement as jurisdictional. By directing the Attorney General and Solicitor General to approve appeals personally, section 3742(b) provides for centralized de-cisionmakers who will screen proposed appeals. Regardless of whether the Attorney General and Solicitor General or their delegates actually sign the authorization, the Justice Department’s present procedures ensure that proposed appeals will be reviewed for consistency with Congress’s policy directives.

Two other circuit courts have considered this issue and determined that section 3742(b)’s personal approval requirement is not jurisdictional. In United States v. Gurgiolo, 894 F.2d 56 (3d Cir.1990), the Third Circuit held the following:

When the Solicitor General is unavailable, it is sufficient for section 3742(b) purposes for the government ... to secure the approval of the Deputy Solicitor General acting in the Solicitor General’s place. Second, the fact that the government’s notice of appeal failed to indicate this notice of approval in its text does not dictate dismissal. See Fed.R.App.P. 3(c) (“[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal.”).

Id. at 57 n. 1. In United States v. Smith, 910 F.2d 326 (6th Cir.1990), the Sixth Circuit held:

Section 3742(b) does not require the personal approval of the Attorney General or Solicitor General to be in writing or that the approval be filed in the Court of Appeals. However, it is undisputed that Congress intended that such permission be obtained.

It is the view of this panel that proof of the personal approval is not of jurisdictional dimensions in the sense that a timely notice of appeal in a criminal case is jurisdictional.

Id. at 328.³

The regulations governing the Department of Justice and describing the responsibilities of the Deputy Solicitor General support the conclusion that the authorization of the present appeal was proper. The regulation regarding exercise of authority in the absence of a department head provides:

The head of each organizational unit of the Department is authorized, in case of absence from office or disability, to designate the ranking deputy (or an equivalent official) in the unit who is available to act as head. If there is no deputy available to act, any other official in such unit may be designated.

28 C.F.R. § 0.132(e). In its response to the Court’s inquiry, the Department of Justice stated that Deputy Solicitor General Roberts, who signed the authorization in the present case, is designated as the ranking deputy in accordance with 28 C.F.R. § 0.132. This statement is supported by the official job description of the Deputy Solicitor General, which states that “[i]n the absence of the Solicitor General, [the Deputy Solicitor General] acts for him in certain matters.”⁴ Accordingly, under established Department of Justice procedures, Deputy Solicitor General Roberts had the authority to act as Solicitor General in authorizing the present appeal.

Forbidding the Attorney General and the Solicitor General to transfer authority to approve appeals while the Attorney General and the Solicitor General are occupied with other duties would interfere with the internal operations of the Department of Justice. This result is undesirable for both the Department of Justice and the Court because it forces the Court to scrutinize the day to day decisionmaking of the Attorney General, the Solicitor General, and their subordinates. The Supreme Court previously has rejected arguments that courts should probe the decisionmaking process of a high public official in order to determine whether he exercised his independent judgment or relied on the advice of his subordinates. Compare Citizens of Overton Park v. Volpe, 401 U.S. 402, 408-09, 91 S.Ct. 814, 819-20, 28 L.Ed.2d 136 (1971) (Marshall, J.) (statute requiring Secretary of Transportation to approve purchases of park lands for highways); with id. at 422, 91 S.Ct. at 827 (Brennan, J., concurring) (criticizing Secretary of Transportation for failing to hold hearing under statute).

CONCLUSION

We DENY Griffin’s motion to dismiss the appeal.

1 . 18 U.S.C.A. § 3742(b) provides in part:

"Appeal by the Government. — The Government, with the personal approval of the Attorney General or the Solicitor General, may file a notice of appeal in the district court for review of an otherwise final sentence_”

2 . The Solicitor General was in San Francisco attending a conference at the time that the Deputy Solicitor General signed the authorization slip on the Solicitor General’s behalf.

3 . The Sixth Circuit went on to state that because there was no statute or rule governing proof of personal approval, the court would, in the exercise of its supervisory authority, prospectively require that the government file proof of approval no later than the filing of the government's brief. This proof was to be dated no later than the day on which the notice of appeal was filed. Smith, at 328. Smith repudiates contrary dictum in United States v. Hays, 899 F.2d 515, 517 n. 1 (6th Cir.1990).

4 . The job description further provides, "In the Solicitor General’s absence, [the Deputy Solicitor General] represents the Solicitor General’s Office in meetings with the Attorney General, Deputy Attorney General and others for the purpose of formulating policy and strategy.”