United States v. Taliaferro 08-CR-007-SM 10/30/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 08-cr-7-l-SM Opinion No. 2009 DNH 164 Waniira Taliaferro. Defendant
O R D E R
The grand jury returned an indictment charging defendant
with distribution of a controlled substance, more than 5 grams of
crack cocaine (count one), possession of a controlled substance,
more than 50 grams of crack cocaine, with the intent to
distribute it (count four), and conspiracy to distribute a
controlled substance, more than 50 grams of crack cocaine (count
five). If convicted of each of those charged offenses, defendant
would be exposed to a statutory minimum mandatory sentence of 10
years in prison. If, however, the prosecution elected to file a
notice of her prior conviction, under 21 U.S.C. § 851, defendant
would be exposed to a minimum mandatory sentence of twice that
amount, or 20 years in prison.
On May 12, 2009, the court conducted a plea colloquy with
the defendant pursuant to Fed. R. Crim. P. 11 and, finding her
plea of guilty to each count to be knowing, intelligent, and voluntary, the court accepted those pleas and adjudicated her
guilty of each charge. The court deferred acceptance of the plea
agreement, which included a "binding" stipulation to a 15-year
sentence (Fed. R. Crim. P. 11(c)(1)(C)), until the sentencing
hearing (at which point the court would have the benefit of the
Presentence Investigation Report).
The plea agreement's 15-year sentence, insisted upon by the
prosecution, presented defendant with a Hobson's choice. All
parties agree that the evidence of her guilt is overwhelming, and
that a trial on the merits would serve no useful purpose. So,
defendant's options were limited. She could either: (1) accept
the "binding" plea agreement under Fed. R. Crim. P. 11(c)(1)(C)
that called for a 15-year sentence, or (2) proceed to trial (in
which case the prosecutor would file the Section 851 notice),
face near-certain conviction, and necessarily be sentenced to the
statutory mandatory minimum term of 20 years in prison. She
understandably chose the former and signed the plea agreement
stipulating to a sentence of 15 years imprisonment.
In due course, the Probation Office prepared a presentence
report for the court. After reviewing the report, considering
argument related to sentencing and the plea agreement's
stipulation, and having grave misgivings about the fairness of
2 the sentence dictated by the plea agreement under the
circumstances (see 18 U.S.C. § 3553(a)), the court, by Order
dated September 1, 2009, directed the new United States Attorney
to personally review this matter in light of the new
Administration''s seemingly different approach to drug sentencing
policy, as well as Attorney General Holder's own public
statements on the matter.1 The court also directed the United
States Attorney to personally advise the court of the
prosecution's intentions, should the court reject the plea
agreement's stipulated sentence provision and impose a
significantly lower sentence.
The United States Attorney has responded, albeit in the form
of a pleading entitled "Government's Sentencing Memorandum,"
signed by a Special Assistant United States Attorney. I will
accept the assistant's pleading as the United States Attorney's
personal response, since that seems to be its intent, and the
1 Attorney General Holder's public comments suggest not only a different approach to what most observers recognize as unreasonable crack/powder cocaine sentencing disparities, see Kimbrough v. United States. 522 U.S. 85 (2007), but also a different approach to the sometimes unjust and draconian sentences necessarily imposed in drug cases pursuant to statutorily mandated minimums (as have been leveraged against defendant in this case to induce acceptance of the plea agreement offered by the prosecution).
3 court's direction to provide a personal response has apparently
been misunderstood.
The prosecution's sentencing memorandum merely reiterates
argument made previously in court and, not atypically for an
advocacy piece by the prosecution, it unduly emphasizes
aggravating factors, while mitigating factors, substantial in
this case, are largely ignored or treated dismissively.
Prosecutors, of course, have a role to play in sentencing, but it
is not that of sentencing judge; prosecutors are advocates —
hopefully fair and reasonable advocates, possessing sound
judgment — but advocates nonetheless. As advocacy, the
memorandum is perfectly fine; as a justification for the dictated
15-year sentence, it falls short.
It is an unfortunate reality of our current system that, in
a very real sense, broad prosecutorial discretion, coupled with a
mandatory minimum statutory scheme and the prosecution's ability
to effect the imposition of a mandatory minimum sentence (in this
case, either 10 years or 20 years) simply by choosing to file or
not file an information under Section 851, all combine to empower
prosecutors to effectively impose criminal sentences in many
cases, usually involving drugs, bypassing Article III sentencing
authority. In such circumstances, when a sentencing court
4 determines the stipulated sentence to be too severe, the judicial
sentencing function can be relegated to little more than the
ministerial act of approving the stipulated sentence in lieu of
being required to impose an even higher, mandatory, sentence.
Perhaps that is as Congress intended, perhaps not. Congress may
well reconsider the current mandatory minimum sentencing scheme
in light of what has developed over the years. See e.g.. H.R.
3327, Ramos-Compean Justice Act of 2009.
The circumstances of this case are somewhat rare, but
illustrate the point. Difficulties arise when a sentencing court
determines that a binding sentence stipulation is unfairly harsh,
yet rejection of the agreement will seemingly result in an even
harsher sentence, at least to the extent the prosecution controls
the process. When a sentencing court concludes that a binding
stipulated sentence is too lenient (also not a routine event, but
it happens) the defendant is entitled to withdraw her accepted
guilty plea and either proceed to trial or attempt to negotiate a
sentence the court will find appropriate. In that circumstance,
however, if a defendant does not withdraw her plea, or is later
convicted, the sentence imposed will inevitably be more severe
than the "too lenient" sentence, notwithstanding the "binding"
agreement between prosecutor and defendant. But, where the
stipulated sentence is thought by the sentencing court to be too
5 severe, as here, the prosecution seems to take the position that
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United States v. Taliaferro 08-CR-007-SM 10/30/09 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 08-cr-7-l-SM Opinion No. 2009 DNH 164 Waniira Taliaferro. Defendant
O R D E R
The grand jury returned an indictment charging defendant
with distribution of a controlled substance, more than 5 grams of
crack cocaine (count one), possession of a controlled substance,
more than 50 grams of crack cocaine, with the intent to
distribute it (count four), and conspiracy to distribute a
controlled substance, more than 50 grams of crack cocaine (count
five). If convicted of each of those charged offenses, defendant
would be exposed to a statutory minimum mandatory sentence of 10
years in prison. If, however, the prosecution elected to file a
notice of her prior conviction, under 21 U.S.C. § 851, defendant
would be exposed to a minimum mandatory sentence of twice that
amount, or 20 years in prison.
On May 12, 2009, the court conducted a plea colloquy with
the defendant pursuant to Fed. R. Crim. P. 11 and, finding her
plea of guilty to each count to be knowing, intelligent, and voluntary, the court accepted those pleas and adjudicated her
guilty of each charge. The court deferred acceptance of the plea
agreement, which included a "binding" stipulation to a 15-year
sentence (Fed. R. Crim. P. 11(c)(1)(C)), until the sentencing
hearing (at which point the court would have the benefit of the
Presentence Investigation Report).
The plea agreement's 15-year sentence, insisted upon by the
prosecution, presented defendant with a Hobson's choice. All
parties agree that the evidence of her guilt is overwhelming, and
that a trial on the merits would serve no useful purpose. So,
defendant's options were limited. She could either: (1) accept
the "binding" plea agreement under Fed. R. Crim. P. 11(c)(1)(C)
that called for a 15-year sentence, or (2) proceed to trial (in
which case the prosecutor would file the Section 851 notice),
face near-certain conviction, and necessarily be sentenced to the
statutory mandatory minimum term of 20 years in prison. She
understandably chose the former and signed the plea agreement
stipulating to a sentence of 15 years imprisonment.
In due course, the Probation Office prepared a presentence
report for the court. After reviewing the report, considering
argument related to sentencing and the plea agreement's
stipulation, and having grave misgivings about the fairness of
2 the sentence dictated by the plea agreement under the
circumstances (see 18 U.S.C. § 3553(a)), the court, by Order
dated September 1, 2009, directed the new United States Attorney
to personally review this matter in light of the new
Administration''s seemingly different approach to drug sentencing
policy, as well as Attorney General Holder's own public
statements on the matter.1 The court also directed the United
States Attorney to personally advise the court of the
prosecution's intentions, should the court reject the plea
agreement's stipulated sentence provision and impose a
significantly lower sentence.
The United States Attorney has responded, albeit in the form
of a pleading entitled "Government's Sentencing Memorandum,"
signed by a Special Assistant United States Attorney. I will
accept the assistant's pleading as the United States Attorney's
personal response, since that seems to be its intent, and the
1 Attorney General Holder's public comments suggest not only a different approach to what most observers recognize as unreasonable crack/powder cocaine sentencing disparities, see Kimbrough v. United States. 522 U.S. 85 (2007), but also a different approach to the sometimes unjust and draconian sentences necessarily imposed in drug cases pursuant to statutorily mandated minimums (as have been leveraged against defendant in this case to induce acceptance of the plea agreement offered by the prosecution).
3 court's direction to provide a personal response has apparently
been misunderstood.
The prosecution's sentencing memorandum merely reiterates
argument made previously in court and, not atypically for an
advocacy piece by the prosecution, it unduly emphasizes
aggravating factors, while mitigating factors, substantial in
this case, are largely ignored or treated dismissively.
Prosecutors, of course, have a role to play in sentencing, but it
is not that of sentencing judge; prosecutors are advocates —
hopefully fair and reasonable advocates, possessing sound
judgment — but advocates nonetheless. As advocacy, the
memorandum is perfectly fine; as a justification for the dictated
15-year sentence, it falls short.
It is an unfortunate reality of our current system that, in
a very real sense, broad prosecutorial discretion, coupled with a
mandatory minimum statutory scheme and the prosecution's ability
to effect the imposition of a mandatory minimum sentence (in this
case, either 10 years or 20 years) simply by choosing to file or
not file an information under Section 851, all combine to empower
prosecutors to effectively impose criminal sentences in many
cases, usually involving drugs, bypassing Article III sentencing
authority. In such circumstances, when a sentencing court
4 determines the stipulated sentence to be too severe, the judicial
sentencing function can be relegated to little more than the
ministerial act of approving the stipulated sentence in lieu of
being required to impose an even higher, mandatory, sentence.
Perhaps that is as Congress intended, perhaps not. Congress may
well reconsider the current mandatory minimum sentencing scheme
in light of what has developed over the years. See e.g.. H.R.
3327, Ramos-Compean Justice Act of 2009.
The circumstances of this case are somewhat rare, but
illustrate the point. Difficulties arise when a sentencing court
determines that a binding sentence stipulation is unfairly harsh,
yet rejection of the agreement will seemingly result in an even
harsher sentence, at least to the extent the prosecution controls
the process. When a sentencing court concludes that a binding
stipulated sentence is too lenient (also not a routine event, but
it happens) the defendant is entitled to withdraw her accepted
guilty plea and either proceed to trial or attempt to negotiate a
sentence the court will find appropriate. In that circumstance,
however, if a defendant does not withdraw her plea, or is later
convicted, the sentence imposed will inevitably be more severe
than the "too lenient" sentence, notwithstanding the "binding"
agreement between prosecutor and defendant. But, where the
stipulated sentence is thought by the sentencing court to be too
5 severe, as here, the prosecution seems to take the position that
a less severe sentence cannot be imposed absent prosecutorial
concurrence, given the binding agreement. That is to say, the
court can sentence a defendant more harshly than an agreed-upon
sentence but, at least in the prosecution's view, it cannot
impose a sentence that is more lenient than an agreed-upon
sentence. Accepting that reasonable minds can disagree in a
given case about what is "too lenient" and what is "too severe,"
the important issue is who should make the final determination —
courts or prosecutors?
The position taken by the prosecution in this case
implicitly suggests the existence of legal issues that must be
addressed and resolved before proceeding further. That part of
the memorandum responsive to the court's September 1 Order
consists of one sentence: "In the event that the court will
determine in its sound discretion that the agreement reached by
the parties should be rejected, the United States intends to
withdraw from the plea agreement, comply with Department of
Justice Policy, and proceed to trial." (Emphasis added.)
Presumably, the prosecution expects that, should the court reject
the plea agreement, the prosecution will somehow obtain the
vacation of defendant's accepted guilty pleas, file an
information under Section 851 (thereby triggering defendant's
6 exposure to a 20-year mandatory minimum sentence in this case),
and proceed to trial.
That response raises the following issues, and perhaps
points the way to a completely different result, at least in this
1. If the court rejects that part of the plea agreement providing for a specific sentence (i.e., 15 years), and the prosecution "withdraws" from the plea agreement, can the court vacate defendant's previously-accepted guilty pleas, either sua sponte or on motion of the prosecution, lawfully and consistently with defendant's rights under the Double Jeopardy Clause, in the absence of defendant's own affirmative election to withdraw her accepted pleas?
2. Should the court reject the specific sentence provision in the plea agreement, and should the defendant decline to withdraw her guilty pleas, and should the court impose a sentence below that called for by the agreement but at or above the applicable statutory mandatory minimum (10 years), would that sentence be lawful?
3. Is it now too late for the prosecution to file an information under the provisions of 21 U.S.C. § 851(a)(1), raising the mandatory minimum to 20 years, absent defendant's election to withdraw her pleas, since the prosecution failed to file an information before defendant's guilty pleas were accepted by the court and jeopardy attached?
The likely correct answers are: No, Yes, and Yes. See,
generally. United States v. Hyde. 520 U.S. 670 (1997); United
States v. Aliotta. 199 F.3d 78 (2d Cir. 1999); United States v.
7 Partida-Parra, 859 F.2d 629 (9th Cir. 1988); United States v.
Patterson. 381 F.3d 859 (9th Cir. 2004); United States v.
Vinvard. 539 F.3d 589 (7th Cir. 2008). See also 21 U.S.C.
§ 851(a)(1) (punishment may not be increased based upon a prior
conviction "unless before trial, or before entry of a plea of
guilty, the United States attorney files an information with the
court (and serves a copy of such information on the person or
counsel for the person) stating in writing the previous
convictions to be relied upon."). But, the prosecution has
neither considered nor addressed these issues in its sentencing
memorandum, and neither the prosecution nor defendant has had an
opportunity to be heard on the matter.
Resolution of the specified legal issues is necessary to a
fair and just determination of a lawful sentence in this case,
and is critical in determining the extent and nature of the
defendant's constitutional rights at this stage of the
proceedings - rights the prosecution has an interest in
preserving, protecting, and defending. Accordingly, the parties
shall prepare and file thoroughly researched and supported legal
memoranda addressing the specified issues within sixty (60) days
of the date of this order. SO ORDERED.
/seven J/ McAuliffe nited States District Judge
October 30, 2009
cc: John P. Kacavas, United States Attorney Michael J. Zaino, Esq., SAUSA Robert G. Daniels, Esq. Jeffrey S. Levin, Esq. U.S. Marshal U.S. Probation