
USCA1 Opinion

	




                            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                                         -3-                                         -3-            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                                         -4-                                         -4-            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                                         -5-                                         -5-            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.                                         -6-                                         -6-                 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).                                         -7-                                         -7-            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.                                         -8-                                         -8-                 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.                 ________                                         -9-                                         -9-
