The opinion of the court was delivered by: POLLAK
As cases involving criminal activity subsequent to the coming into force of the guidelines have reached the stage of trial or plea, issues have been raised as to the constitutionality of the guidelines. Within this Circuit there have been discrepant responses as there have been in other Circuits.
In Delaware, Judge Schwartz, on July 8 of this year, rejected a challenge to the validity of the guidelines. United States of America v. Martin Schwartz, 692 F. Supp. 331, 1988 U.S. Dist. LEXIS 8816 (D. Del., 1988). Less than two weeks later, my colleague, Judge Newcomer, here in this district, concluded that the guidelines are not valid. United States of America v. William Waddell Brown, 690 F. Supp. 1423 (E.D. Pa. 1988). The issues appear to be headed for disposition by the Supreme Court in the coming term. The Court has granted certiorari in United States v. Mistretta 486 U.S. 1054, 108 S. Ct. 2818, 100 L. Ed. 2d 920 (1988). Certiorari was granted on June 13, 1988, and the argument will take place in the fall.
No issues of constitutionality have been tendered in the cases now before me. The evident reason is that the parties, that is to say the United States and the two defendants, are in agreement on the disposition of these cases. They are in agreement that within the framework of the guidelines' structure, but on the basis of what the parties believe to be justified departures from the relevant guidelines -- that is to say departures justified by the guideline structure itself -- the sentences which commend themselves both to the Government and to the defendants can be supported.
The Probation Office has registered its disagreement, feeling that substantially longer sentences than those agreed upon should be imposed. Rather than a 60-month sentence, the Probation Office would see in each case a sentence of 188 months, three times as long.
I would say that I have found very helpful the submissions of counsel which I requested, both the written submissions and the oral discussion at our hearing on April 29, and the supplementary discussion this morning. I have also found very helpful -- and I would be remiss if I did not make the point -- the characteristically thoughtful and responsible submissions of the Probation Office. The Probation Office has new and very demanding burdens put upon it by the guideline system, and in this instance, which is the first case that I have had under the guidelines, the Probation Office has responded with exactly the diligence and care and sensitivity that this Court has taken for granted from that office.
The gravamen of the difficulty presented in these cases comes to this. The plea agreements contemplate that in each instance two charges will be dismissed and one will remain, and sentence will be imposed under that remaining charge. The two charges to be dismissed in each case are charges of possession with intent to distribute a quantity of drugs which amounts to 30 kilos of cocaine, and a conspiracy to accomplish that end. Those charges, the substantive and conspiracy charges with respect to possession with intent to distribute, are charges arising under 21 U.S.C. §§ 841(a)(1) and 846, which, if sustained, would call for mandatory minimum sentences of ten years under the governing statutes, and potential sentences running up to life.
By contrast, the count that in each case the defendants have undertaken to plead guilty to, the count under 21 U.S.C. § 856, which charges each defendant with managing or controlling a room for the purpose of unlawfully manufacturing, or for the purpose of unlawfully storing, a controlled substance, calls for a prison term of not more than 20 years.
The broad question that is presented by these plea agreements is whether, within the framework of the guidelines, I have authority, and it is an appropriate exercise of my discretion, to accept an agreement under which the two counts that call for mandatory minimum sentences of ten years may be dismissed, and the remaining count retained under circumstances in which the sentence agreed between the Government and the defendants for that remaining count would be a period of 60 months or five years -- namely, half the minimum sentence that would be contemplated by the statute governing the two dismissed counts, and less than half of what would be contemplated by the applicable guideline ranges if those counts were not dismissed.
It is the disjunction between the agreed 60-month sentence, and the far greater sentences that would be called for under the two counts to be dismissed in each instance, that has led the Probation Office to make the recommendation that no sentence should be agreed to by the Court which does not reach 188 months for each of the defendants.
The problem that I have described is compounded by the fact that the agreed sentence of 60 months for the count under which sentence is to be imposed is a sentence which is, in Mr. Restrepo's case, almost double, and, in Mr. Rave's case, slightly more than double, the top of the guideline range for an offense under 21 U.S.C. § 856.
Subsection (c) of 6B1.2 provides: "In the case of a plea agreement that includes a specific sentence [Rule 11(e)(1)(C)], the court may accept the agreement ...