Filed: Sep. 12, 1994
Latest Update: Feb. 21, 2020
Summary: BOUDIN, Circuit Judge.3B1.2(a), 3E1.1(b), Jorge-Torres' total offense level was 25.departure made a further hearing pointless.information to trade in exchange for a lighter sentence.foreseen when Congress adopted the provision.assistance regime., United States v. Horn, 946 F.2d 738, 746 (10th Cir.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1606
UNITED STATES OF AMERICA,
Appellee,
v.
ZULMA JORGE TORRES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin, Circuit Judge,
and Keeton,* District Judge.
Gustavo A. Gelpi, Assistant Federal Public Defender, with whom
Benicio Sanchez-Rivera, Federal Public Defender, was on brief for
appellant.
Jeanette Mercado-Rios, Assistant United States Attorney, with
whom Jose A. Quiles-Espinosa, Senior Litigation Counsel, was on brief
for the United States.
August 31, 1994
*
Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. On December 19, 1992, Zulma
Jorge-Torres arrived in San Juan, Puerto Rico, on a flight
from Barbados. Customs inspection revealed that her handbag
contained a false bottom filled with heroin. This, together
with the heroin concealed in her tennis shoes and a pen
holder, was later found by laboratory analysis to amount to
1.5 kilograms of heroin with a purity strength of 97 per
cent.
Jorge-Torres was charged with knowing possession with
intent to distribute and with importation, in a two-count
indictment under 21 U.S.C. 841(a)(1) and 952(a).
Thereafter, Jorge-Torres changed her initial not guilty plea
to a plea of guilty to both counts and sought to cooperate
with the government. It appears that Jorge-Torres then
provided the government with whatever limited information she
had concerning the network, including how the transaction
occurred and who supplied the drugs or was otherwise
involved.
Under the Sentencing Guidelines, a quantity of heroin
between 1 and 3 kilograms corresponds to a base offense level
of 32. See U.S.S.G. 2D1.1(a)(3). With a four-point
reduction for minimal participation and a further three-point
reduction for acceptance of responsibility, U.S.S.G.
3B1.2(a), 3E1.1(b), Jorge-Torres' total offense level was 25.
Given a criminal history category of I, the guideline
imprisonment range was 57-71 months.
However, by statute the minimum term for the offenses,
based on the quantity of drugs involved, is ten years. See
21 U.S.C. 841(b)(1)(A), 960(b)(1)(A). On motion by the
government, the district court has the authority to "impose a
sentence below a level established by statute as [a] minimum
sentence so as to reflect the defendant's substantial
assistance" in investigating or prosecuting another. 18
U.S.C. 3553(e). See also U.S.S.G. 5K1.1 (permitting a
comparable departure from the guidelines). The district
court cannot sentence below a statutory minimum based on
substantial assistance unless the government so moves. See
Wade v. United States, 112 S. Ct. 1840 (1992).
At the sentencing hearing, the district judge encouraged
government counsel to consider a departure. The assistant
U.S. attorney declined, indicating that the information
Jorge-Torres provided had not led to further arrests, and
that consequently the government did not believe that it
could find that substantial assistance had been furnished in
this case. The prosecutor did not expressly dispute that the
defendant had in good faith provided the government all of
the information that she possessed.
Defense counsel pressed the judge to afford a hearing on
substantial assistance but offered no basis for thinking that
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anything could be adduced at the hearing beyond the facts
already described, namely, that Jorge-Torres had done all she
could, but the leads had not been helpful to the government.
The district court expressed frustration with the guidelines-
-in this instance the statutory minimum is the real culprit--
but found that the government's refusal to move for a
departure made a further hearing pointless. A statutory
minimum sentence of 10 years was then imposed.
On appeal, counsel for defendant has made a
constitutional attack on the statute and guidelines. It
violates equal protection, so defense counsel argues, to
impose a long sentence on Jorge-Torres, a low-level courier
who tries her best to cooperate but has little information to
give, while providing lower sentences to major drug dealers
whose offenses are far more serious but who happen to have
plenty of information to trade. Accordingly, defendant says
that the substantial assistance regime as currently
structured provides discrepant treatment that serves no
rational purpose consistent with the ends of Congress.
The equal protection test is not a demanding one where,
as here, there is no suspect classification underlying the
disparate treatment, nor a substantial burden on a protected
constitutional right. See City of Cleburne v. Cleburne
Living Center, 473 U.S. 432 (1985). It is not irrational to
provide a reward to a kingpin whose information permits the
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government to shut down a drug network nor is it irrational
to withhold such leniency from a less important member of the
ring who tries to assist but has nothing to offer. Indeed,
to offer leniency in exchange for useful information is not
inherently a harsh arrangement: only the 10-year minimum
makes it so. In any event, such a regime plainly does not
lack a rational basis.
But Jorge-Torres' argument has a somewhat sharper point.
A reasonable classification, says defendant's brief, "must
rest upon some ground of difference having a fair and
substantial relation to the object of the legislation . . .
." Johnson v. Robison, 415 U.S. 361, 374-75 (1974) (emphasis
added). Here, the defendant argues, Congress aimed at
achieving fairness in sentencing, and there is no fairness in
giving the defendant a 10-year sentence when a drug kingpin
could easily receive a lesser sentence for the same quantity
of drugs as long as the kingpin brought along useful
information to trade in exchange for a lighter sentence.
It is not clear that this equal protection argument was
ever squarely presented to the lower court but, as the
government has not claimed waiver, we address the point on
the merits. There may also be some doubt about the legal
premise that an equal protection analysis has to be focused
solely upon the specific objectives set forth by Congress and
without resort to other possibilities. We need not pursue
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this point because even if the legal premise is sound, the
claim of irrationality still fails in this case when measured
against Congress' statutory purposes.
In broad terms it can be said that Congress in its
sentencing provisions aimed at fairness. Cf. 28 U.S.C.
991(b)(1)(B) (mentioning fairness). But in fact an
examination of the various statutes in which Congress has
referred to the purposes of sentencing reveals a cross-
current of objectives expressed at various levels of
generality, e.g., 18 U.S.C. 3553(a) (listing seven
categories of matters to be considered). Worse still, from
Jorge-Torres' standpoint, 18 U.S.C. 3553(e) expressly
provides that departures below a statutory minimum may be
allowed to reflect a defendant's substantial assistance in
investigating or prosecuting others.
Whatever one might say in the abstract about the
fairness of the present structure, it is plainly not an
irrational departure from the objectives that Congress itself
has set forth. On the contrary, affording great weight to
substantial assistance--it is virtually the only occasion on
which the statutory minimums may be disregarded--is Congress'
purpose. While section 3553(e) may not literally command
more favorable treatment of kingpins with information than
for couriers without it, that outcome could easily have been
foreseen when Congress adopted the provision.
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This court has not previously considered an equal
protection challenge of this kind, although we earlier
rejected a due process challenge to the substantial-
assistance regime. See United States v. La Guardia, 902 F.2d
1010 (1st Cir. 1990). However, four other circuits have
rejected equal protection challenges not very different from
that advanced here.* The government has correctly not
questioned our authority to review a constitutional attack on
the provision, even though refusals to depart are normally
not reviewable. La
Guardia, 902 F.2d at 1012. But having
considered the issue on its merits, we reject the
constitutional claim.
A somewhat different issue might have been raised and,
in the interests of justice, we feel compelled to remark upon
it. From a review of the transcript of the sentencing
hearing, one might think that the government here felt that
it lacked authority to recommend a departure even if it
wished to do so. It might appear that the assistant U.S.
attorney was blaming the statutory "substantial assistance"
requirement and saying that his office was unable to move for
a departure because none of the leads provided by Jorge-
United States v. Musser, 856 F.2d 1484, 1486-87 (11th Cir.
1988), cert. denied, 489 U.S. 1022 (1989); United States v.
Rojas-Martinez, 968 F.2d 415, 419-20 (5th Cir.), cert.
denied, 113 S. Ct. 828 (1992) and
113 S. Ct. 995 (1993);
United States v. Horn, 946 F.2d 738, 746 (10th Cir. 1991);
United States v. Broxton, 926 F.2d 1180, 1183-84 (D.C. Cir.
1991).
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Torres had resulted in an arrest or otherwise made any dent
in a drug cartel.
The "substantial assistance" phrase is a very general
one. Despite some arguments to the contrary, we think that
it is at least plausible to contend that the prosecutor is
entirely free to treat as "substantial assistance" a
defendant's provision of a substantial amount of information
pertaining to the operation of a drug ring and--at least
where the defendant has told all he or she can tell--to treat
this as substantial assistance, regardless of whether it
results in a further arrest or prosecution. If we thought
that the government was generally confused about this matter,
we would provide it with further opportunity for reflection
in this case.
The government points out that the guideline provision
that paralleled the statutory provision had originally
provided for a possible departure where defendant made "a
good faith effort" to provide substantial assistance. See
U.S.S.G. App. C, amendment No. 290 (November 1989), deleting
the "good faith" language and substituting the requirement
that the defendant provide substantial assistance. However,
the Commission's stated reason for the change--to require
more than mere "willingness" to provide information, id.--
does not cast much light on how much information is
substantial.
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In fact, we have no reason to believe that the
government is in any way confused about the broad scope of
its authority to discern "substantial assistance" in a good
faith proffer of specific information about a drug ring by a
low-level defendant. Rather, we have a firm impression that
prosecutors have taken a hard line in determining what they
will regard as substantial cooperation. While this will seem
harsh to many, it is likely that the prosecutors would
explain--if they had any duty to explain--that it is
difficult for them to tell if a defendant has actually given
all that he or she knows. Thus, they might argue, the
promise of a reward for results, and only for results, is a
necessary resort.
On this appeal, counsel for Jorge-Torres has not
suggested that the prosector misunderstood the scope of his
discretion. Further, there is no claim that the prosecutor
was motivated by an unconstitutional purpose such as racial
discrimination, a very small loophole that the Supreme Court
has left open for possible judicial review of a prosecutor's
refusal to move for a departure. See Wade, 112 S. Ct. at
1843. Defendant's brief does refer to this loophole but only
to assert the equal protection claim already addressed and
rejected.
Affirmed.
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