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.

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

, 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

(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.

(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

(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.

(1997); United

States v. Aliotta.

(2d Cir. 1999); United States v.

7 Partida-Parra,

(9th Cir. 1988); United States v.

Patterson.

(9th Cir. 2004); United States v.

Vinvard.

(7th Cir. 2008). See also

(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

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