United States v. Terry A. "Buddy" Woodard

927 F.2d 433, 1991 WL 28793

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 7, 1991
• Docket: 90-1967EA
• Status: Published

Opinions

ARNOLD, Circuit Judge.

Terry A. Woodard appeals from the sentence imposed on him by the District Court¹. Woodard pleaded guilty to two offenses: possessing 441.56 grams of methamphetamine with intent to distribute it, in violation of 21 U.S.C. § 841(b)(1)(C) (1987), and purchasing a .45 caliber pistol at a time when he had been charged with a felony, in violation of 18 U.S.C. § 922(n) (1986). He received a 63-month sentence on the drug charge, and a 60-month concurrent sentence on the firearms charge. He argues that the District Court erred in not giving him a sentence more lenient than that indicated by the Sentencing Guidelines.

I.

The facts of the crimes to which Woodard has pleaded guilty are undisputed. On November 21, 1987, at the time of his arrest, he was bringing 441.56 grams of methamphetamine from Poplar Bluff, Missouri, to Trumann, Arkansas. He had with him a loaded .44 caliber revolver. On December 10, 1987, he was charged in a state court with possession of a controlled substance with intent to deliver it. Just four days after the charge was filed, on December 14, 1987, Woodard bought a .45 caliber pistol. He was able to buy the gun only by lying: he falsely stated that he had not been charged with a felony at the time.

On January 25, 1988, the defendant pleaded guilty to the drug charge, and the state court gave him a suspended sentence of ten years, with the first two years to be served on supervised probation. The State of Arkansas did not charge him with any firearms offense, either in connection with the .44 caliber weapon that he was evidently using in the drug traffic, or in connection with the .45 caliber weapon that he bought while under a criminal charge.

On October 12, 1989, an Assistant United States Attorney for the Eastern District of Arkansas asked the Assistant Attorney General in charge of the Criminal Division of the Department of Justice for permission to prosecute Woodard in a federal court. Permission was required because of the Department’s “Petite Policy.” This is an internal practice which prevents federal prosecution when a state has prosecuted someone for substantially the same act unless there are compelling reasons, and the Assistant Attorney General gives prior approval. See Petite v. United States, 361 U.S. 529, 530-31, 80 S.Ct. 450, 451, 4 L.Ed.2d 490 (1960) (per curiam). The principal reason given for this request was that the state courts had not treated Woodard’s drug offense seriously enough. The Assistant Attorney General granted the request, and in due course, on January 16, 1990, Woodard was indicted by a federal grand jury. As previously indicated, he pleaded guilty.

II.

No question is raised about the proper range of sentence under the Sentencing Guidelines. The indicated range for the drug offense is 63-78 months. As to the firearms charge, the maximum sentence under the statute is 60 months. The District Court sentenced Woodard to serve 63 months, the minimum allowable under the Guidelines. Woodard’s argument is that the District Court erred in failing to depart downward. He complains that he has been subjected to a “double jeopardy application of the Guidelines.” Brief for Appellant 4. The point is this: the defendant had already been charged, convicted, and sentenced in the state court for the same act, possession of methamphetamine with intent to distribute. The federal court, therefore, should have been more lenient with him. '

It needs to be kept in mind that there is no double-jeopardy argument here in the traditional sense. For purposes of the Double Jeopardy Clause of the Fifth Amendment, the federal crime of drug possession now being brought against Woodard is a separate offense from the state crime of drug possession. This is true notwithstanding the fact that the two charges are based on the same act. The dual-sovereignty doctrine which underlies this proposition of law is well established in Supreme Court precedent. See, e.g., Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). Secondly, Woodard himself concedes that we have no power to review the decision of the Department of Justice to waive its Petite policy. “[Bjeeause the Petite policy is an internal administrative policy, it is unenforceable against the government.” Brief for Appellant 6. For this reason, we forego any extended discussion of part C of the dissenting opinion, which argues that the department’s waiver of the Petite policy was based upon a mistake of law or was somehow inappropriate for other reasons. We observe, in addition, that appellant himself does not make the argument that the Petite waiver was somehow flawed.

We also note, for purposes of completeness, that there is some doubt about the reviewability of Woodard’s contention. Under 18 U.S.C. § 3742(e), decisions by sentencing courts not to depart from the Guidelines are generally not reviewable. See United States v. Evidente, 894 F.2d 1000, 1003-04 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990). The argument is made, however, that the District Court acted under a mistake of law—that the Court believed, in accordance with representations made by the government, that it had to sentence defendant to at least 60 months.² This contention raises a legal issue that we have power to review. Our review of the transcript leaves us with the strong impression that the existence vel non of a five-year minimum, had, in the end, no substantial influence on the sentence imposed. Rather, the District Court accepted the government’s argument that the state court had simply not punished the drug crime enough. If the state court had given the defendant a term of years, and if he had served the term, or at least had begun to serve it, we could understand the argument that the federal sentence should be lessened. This would be a way of giving a defendant credit, so to speak, for time already served with respect to the same act. This sort of consideration might well have appealed to the District Court. Such was not the case here, however. Defendant had served absolutely no time for a serious drug crime. As a matter of federal policy, the Department of Justice thought it appropriate to prosecute, and we can well understand this decision.

The District Court summarized its view of the case as follows:

[T]he Government takes the position that this was more or less a cavalier approach to a rather serious offense, a drug offense that has really shaken this country up in more ways than one.

Our family life that we cherish in this nation, and have since the inception of this country, appears to be shaken to its foundation so to speak as a consequence of this drug problem. It has entered into our elementary schools. A lot of injuries, suffering, families or family members deprived of the necessities of life, deaths in many of our communities. A lot of our senior citizens are threatened, afraid to leave their homes at night. It’s a serious problem, and to look at this serious conduct in such a cavalier attitude was the basis of the federal government in prosecuting these cases to make sure that justice was done. So I don’t see any mitigating circumstances here.

Sent.Tr. 30 (emphasis ours).

We find no fault with this reasoning. We believe, in addition, that this passage clearly demonstrates that the District Court was of no mind to depart downward, and that the same sentence would have been imposed even if the government had correctly advised the Court that the five-year minimum for the drug crime did not apply.

We find no error of law in the sentence imposed by the District Court, and the judgment is accordingly

Affirmed.

1 . The Hon. George Howard, Jr., United States District Judge for the Eastern and Western Districts of Arkansas.

2 . The government did make this representation, and it was in error, but we have no doubt that the error was inadvertent. At the time of the sentencing, the offense did carry a five-year minimum, but this provision was not in effect at the time the crime was committed.