2003 WL 23010433 (8th Cir.)

For opinion in this case see 368 F.3d 1032

United States Court of Appeals,

Eighth Circuit.

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

STEPHEN RYDALE BOLDEN, Defendant - Appellant.

No. 03-3094.

2003.

AN APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS

THE HONORABLE WILLIAM R. WILSON, JR. UNITED STATES DISTRICT JUDGE

The Brief of the Appellant

John W. Walker, Ark. Sup. Ct. Reg. No. 64046, John W. Walker, P.A., 1723 Broadway Street, Little Rock, Arkansas 72206-1250, Telephone (501) 374- 3758, Facsimile (501) 374-4187, Terrence Cain, Ark. Sup. Ct. Reg. No. 99128, Attorney at Law, 208 Brown Street, Little Rock, Arkansas 72205-5841, Telephone (501) 664-7512, Facsimile (501) 374-4187

*ii SUMMARY OF THE CASE

This case is the second appeal [FN1] of the district court's upward departure from the United States Sentencing Guidelines. On February 8, 2000, Stephen Rydale Bolden ("Mr. Bolden"), Plaintiff-Appellant herein, Gerald Ghant ("Mr. Ghant"), and Gregory Nichols ("Mr. Nichols") were indicted. On February 16, 2002, a jury convicted Mr. Ghant and Mr. Nichols Mr. Ghant's sentencing guidelines range was 188 to 235 months. Mr. Nichol's guidelines range was 151 to 188 months. On August 15, 2002, the district court departed downward and sentenced Mr. Ghant to 126 months' imprisonment. On that same day, the court also departed downward for Mr. Nichols, sentencing him to 120 months' imprisonment.

1. The first appeal was United States v. Bolden, Case No. 03-1771.

On August 15, 2002, Mr. Bolden and the Government entered into a written plea agreement whereby Mr. Bolden pleaded guilty to a one count superseding information charging him with misprision of a felony. In exchange for Mr. Bolden's guilty plea, the Government dismissed the remaining counts of the original and superseding indictments, including the drug charge. Mr. Bolden's guidelines range was zero to six months. The district court accepted the plea agreement without reservation.

On March 19, 2003, the court sentenced Mr. Bolden to thirty-six months' imprisonment, thirty months above his guidelines range. The court held the upward *iii departure was warranted because Mr. Bolden's culpability was not adequately reflected in the guidelines imprisonment range and that under guidelines Section 5K2.0, aggravating circumstances existed justifying an upward departure. The court entered its judgment on March 20, 2003, and on that same day, Mr. Bolden filed a notice of appeal. In the brief submitted to this Court on May 5, 2003, Mr. Bolden argued the district court abused its discretion in departing upward because the departure was based on conduct dismissed as part of a plea agreement. The Government agreed, and on May 29, 2003, the Assistant United States Attorney filed a motion to remand the case to the district court for resentencing. On June 11, 2003, this Court granted the Government's motion.

Notwithstanding the remand order, on August 8, 2003, district court once again sentenced Mr. Bolden to thirty-six months' imprisonment. On August 14, 2003, the district court entered its judgment and a memorandum opinion and order [FN2] . On August 18, 2003, Mr. Bolden filed a notice of appeal. Once again, Mr. Bolden appeals the district court's upward departure decision.

2. On August 28, 2003, ten days after the notice of appeal was filed and six days after this case was docketed in this Court, the district court entered an Amended Memorandum Opinion and Order. (D. CT. Doc. No. 316). The only difference the author of this brief can discern between the August 14, 2003 order, which is the subject of this appeal, and the August 28, 2003 order is the latter order has a different docket number and was ordered "nunc pro tune as of August 14, 2003" by the district court. Regardless of any differences between the August 14, 2003 order and the August 28, 2003 order, the latter order is a nullity because when Mr. Bolden filed his notice of appeal on August 18, 2003, that divested the district court of its control over those aspects of the case involved in this appeal. United States v. Ledbetter, 882 F.2d 1345 (8th Cir. 1989) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam); Berman v. United States, 302 U.S. 211, 214 (1937)).

*iv STATEMENT WITH RESPECT TO ORAL ARGUMENT

This case presents two significant issues. First, is it an abuse of discretion for a district court to depart upward where there is a plea agreement for misprision of a felony and the Government does not seek an upward departure? Second, when this Court determines that a district court abused its discretion in imposing a sentence and remands the case for resentencing, does the district court commit another abuse of discretion when it imposes the identical sentence but changes its grounds for doing so not because the facts or the law compel the change, but because of the court's desire to impose its view of what a proper sentence should be? The interchange of oral argument would be helpful in deciding these questions. Therefore, Mr. Bolden requests twenty minutes of argument with five minutes of that reserved for rebuttal.

*v TABLE OF CONTENTS

SUMMARY OF THE CASE ... ii

STATEMENT WITH RESPECT TO ORAL ARGUMENT ... iv

TABLE OF CONTENTS ... v

TABLE OF AUTHORITIES ... vii

JURISDICTIONAL STATEMENT ... 1

STATEMENT OF THE ISSUES ... 3

STATEMENT OF THE CASE ... 4

STATEMENT OF THE FACTS ... 7

SUMMARY OF THE ARGUMENT ... 33

ARGUMENT AND APPLICABLE STANDARD OF REVIEW ... 36

I.

THE DISTRICT COURT'S DECISION TO DEPART UPWARD BASED ON CONDUCT DISMISSED AS PART OF A PLEA AGREEMENT VIOLATED THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION AND CONTRAVENED THIS COURT'S HOLDING IN UNITED STATES v. HARRIS ... 36

STANDARD OF REVIEW ... 36

A.

THE DISTRICT COURT CONTRAVENED UNITED STATES v. HARRIS ... 37

*vi B.

THE DISTRICT COURT VIOLATED THE EX POST FACTO CLAUSE ... 40

II.

THE DISTRICT COURT CLEARLY ERRED WHEN IT RELIED ON UNITED STATES v. WARTERS, 885 F.2d 1266 (5th CIR. 1989) BECAUSE THIS COURT AND TWO OTHER CIRCUIT COURTS HAVE REJECTED THE REASONING OF WARTERS AND ITS PROGENY ... 42

III.

THE DISTRICT COURT CLEARLY ERRED WHEN IT DEPARTED UPWARD BASED ON ITS UNHAPPINESS WITH THE FACT THAT MR. GHANT AND MR. NICHOLS TWICE REJECTED PLEA AGREEMENTS, WENT TO TRIAL, WERE FOUND GUILTY, AND RECEIVED LONGER GUIDELINES SENTENCES THAN MR. BOLDEN ... 47

CONCLUSION ... 50

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ... 52

ADDENDUM & ADDENDUM TABLE OF CONTENTS ... 53

CERTIFICATE OF SERVICE ... 54

*vii TABLE OF AUTHORITIES

CASES

Berman v. United States, 302 U.S. 211 (1937) ... iv

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982) (per curiam) ... iv

United States v. Ashburn, 38 F.3d 803 (5th Cir. 1994) ... 41, 46

United States v. Barber, 119 F.2d 276 (4th Cir. 1997) (en banc) ... 40

United States v. Baird, 109 F.3d 856 (3rd Cir. 1997) ... 40

United States v. Bell, 991 F.2d 1445 (8th Cir. 1993) ... 3, 41

United States v. Big Medicine, 73 F.3d 994 (10th Cir. 1995) ... 40

United States v. Bougie, 279 F.3d 648 (8th Cir. 2002) ... 28

United States v. Cammisano, 917 F.2d 1057 (8th Cir. 1990) ... 27, 49

United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990) ... 39

United States v. Comstock, 154 F.3d 845 (8th Cir. 1998) ... 3, 41

United States v. Cross, 121 F.3d 234 (6th Cir. 1997) ... 40

United States v. Figaro, 925 F.2d 4 (1st Cir. 1991) ... 41

United States v. Flores, 336 F.3d 760 (8th Cir. 2003) ... 36, 37, 50

United States v. Fortier, 911 F.2d 100 (8th Cir. 1990) ... 42, 43

United States v. Godbolt, 54 F.3d 232 (5th Cir. 1995) ... 30, 44, 45

United States v. Harris, 70 F.3d 1001 (8th Cir. 1995) 3, 28, 29, 30, 31, 34, 35, 36, 37, 38, 39, 41, 42, 46, 47

United States v. Kim, 896 F.2d 678 (2d Cir. 1990) ... 41

*viii United States v. Lawton, 193 F.3d 1087 (9th Cir. 1999) ... 3, 41, 46

United States v. Ledbetter, 882 F.2d 1345 (8th Cir. 1989) ... iv

United States v. Pigno, 922 F.2d 1162 (5th Cir. 1991) ... 30, 44, 45

United States v. Prestemon, 952 F.2d 1089 (8th Cir. 1992) ... 43

United States v. Ruffin, 997 F.2d 343 (7th Cir. 1993) ... 3, 41, 46, 50

United States v. Smith, 116 F.3d 857 (10th Cir. 1997) ... 42, 43

United States v. Warters, 885 F.2d 1266 (5th Cir. 1989) ... 3, 6, 30, 42, 44, 45, 46, 47

United States v. Wells, 878 F.2d 1232 (9th Cir. 1989) (per curiam) ... 27

STATUTES

18 U.S.C. § 4(2000) ... 1, 4, 5

18 U.S.C. § 3231 (2000) ... 1

18 U.S.C. § 3553(b) (2000) ... 3, 34, 37, 48

18 U.S.C. § 3553(c) (2000) ... 27, 36

18 U.S.C. § 3661 ... 45

18 U.S.C. § 3742(e) (2000) ... 36

21 U.S.C. § 846 (2000) ... 1, 4, 7

28 U.S.C. § 1291 (2000) ... 2

31 U.S.C. § 5313(a) (2000) ... !, 4, 7, 12

RULES

*ix Fed. R. App. P. 32(a)(5) ... 52

Fed. R. App. P. 32(a)(6) ... 52

Fed. R. App. P.32(a)(7)(B) ... 52

Fed. R. App. P. 32(a)(7)(B)(iii) ... 52

OTHER AUTHORITIEStc

8th Cir. Crim. Jury Instr. 1.03 ... 28

Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court, 301 (Times Books Random House) (1998) ... 43

Linda Satter, Judges in a Stew on Federal Sentences, Ark. Democrat-Gazette, Sept. 1, 2003, at 1A ... 48

Mark H. Allenbaugh, The PROTECT Act's Sentencing Provisions, And the Attorney General's Controversial Memo: An Assault Against the Federal Courts,at http:// writ.news.findlaw.com//allenbaugh/20030813.html (Aug. 13, 2003) (last visited Sept. 21, 2003) ... 50

Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today ("PROTECT") Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003) ... 36

U.S. Const. art. I, § 9, cl. 3 ... 42

United States Sentencing Guidelines § 1B1.4 ... 46

United States Sentencing Guidelines § 1.18 ... 45

United States Sentencing Guidelines § 1.19 ... 45

United States Sentencing Guidelines § 2X4.1 ... 29, 30, 42, 44, 46, 47

United States Sentencing Guidelines § 5K2.0 ... iii, 3, 5, 24, 27, 29, 33, 34, 37, 42, 48

*x United States Sentencing Guidelines § 5K2.21 ... 40, 41, 42, 46, 48

*1 JURISDICTIONAL STATEMENT

On February 8, 2000, Mr. Bolden, Mr. Ghant, and Mr. Nichols were indicted for conspiracy to distribute cocaine and possession with intent to distribute cocaine, a violation of 21 U.S.C. § 846(2000). Mr. Bolden was also indicted for evading the reporting requirements on currency transactions of $10,000 or more, a violation of 31 U.S.C. § 5313(a) (2000). The district court had jurisdiction pursuant to 18 U.S.C. § 3231 (2000) because the defendants were charged with violating laws of the United States. On August 15, 2002, Mr. Bolden and the Government entered into a written plea agreement whereby Mr. Bolden pleaded guilty to a one count superseding information charging him with misprision of a felony, a violation of 18 U.S.C. § 4 (2000).

The district court originally sentenced Mr. Bolden to thirty-six months' imprisonment on March 19, 2003, and entered the judgment on March 20, 2003. On that same day, Mr. Bolden appealed that judgment to this Court and on June 11, 2003, this Court remanded the case for resentencing pursuant to a motion filed by the Government.

On August 8, 2003, the district court again sentenced Mr. Bolden to thirty-six months' imprisonment. On August 14, 2003, the court entered its judgment and on August 18, 2003, Mr. Bolden filed a notice of appeal.

*2 This Court has jurisdiction pursuant to 28 U.S.C. § 1291 (2000), which provides for jurisdiction over a final judgment from a United States District Court. This appeal is from a final order which disposes of all claims in the underlying cause of action.

*3 STATEMENT OF THE ISSUES

I.

The district court's decision to depart upward based on conduct dismissed as part of a plea agreement violated the Ex Post Facto clause of the United States Constitution and contravened this Court's holding in United States v. Harris. United States v. Comstock. 154 F.3d 845 (8th Cir. 1998); United States v. Harris. 70 F.3d 1001 (8th Cir. 1995); United States v. Bell 991 F.2d 1445 (8th Cir. 1993).

II.

The district court clearly erred when it relied on United States v. Waiters, 885 F.2d 1266 (5th Cir. 1989) because this Court and two other Circuit Courts have rejected the reasoning of Warters and its progeny. United States v. Lawton, 193 F.3d 1087 (9th Cir. 1999); United States v. Harris. 70 F.3d 1001 (8th Cir. 1995); United States v. Ruffin. 997 F.2d 343 (7th Cir. 1993).

III.

The district court clearly erred when it departed upward simply because the court regretted the fact that Mr. Ghant and Mr. Nichols twice rejected plea agreements, went to trial, were found guilty, and received longer guidelines sentences than Mr. Bolden. 18 U.S.C. § 3553(b) (2000); United States Sentencing Guidelines Manual § 5K2.0 cmt.

*4 STATEMENT OF THE CASE

On February 8, 2000, in the United States District Court for the Eastern District of Arkansas, Mr. Bolden, Mr. Ghant, and Mr. Nichols were charged in a thirty-five count indictment. United States District Judge William R. Wilson, Jr. presided.

On February 16, 2002, a jury found Mr. Ghant guilty on counts one and thirty-five of the indictment, and found Mr. Nichols guilty on count one. Mr. Ghant's sentencing guidelines range was 188 to 235 months. Mr. Nichols' guidelines range was 151 to 188 months. On August 15, 2002, the district court departed downward and sentenced Mr. Ghant to 126 months' imprisonment. On that same day, the court also departed downward for Mr. Nichols, sentencing him to 120 months' imprisonment.

On August 15, 2002, Mr. Bolden and the Government entered into a written plea agreement whereby Mr. Bolden pleaded guilty to a one count superseding information charging him with misprision of a felony, a violation of 18 U.S.C. § 4 (2000). In exchange for Mr. Bolden's guilty plea, the Government dismissed the remaining counts of the original and superseding indictments, including the drug charge. The United States Probation and Pretrial Services Office calculated Mr. Bolden's guidelines range to be zero to six months. At the hearing where Mr. *5 Bolden waived indictment and pleaded guilty to the misprision charge, the district court accepted the plea agreement without reservation.

On November 22, 2002, however, the court notified Mr. Bolden that he was going to be sentenced above his guidelines range because the court felt Mr. Bolden's culpability was not adequately reflected in the guidelines imprisonment range and that under guidelines Section 5K2.0, aggravating circumstances existed warranting an upward departure. On March 19, 2003, the court sentenced Mr. Bolden to thirty-six months' imprisonment, thirty months above his guidelines range. The court entered the judgment on March 20, 2003, and on that same day Mr. Bolden filed a notice of appeal. In his brief submitted to this Court on May 5, 2003, Mr. Bolden argued the district court abused its discretion in departing upward because the departure was based on conduct dismissed as part of a plea agreement. The Government agreed with Mr. Bolden, and on May 29, 2003, the Assistant United States Attorney filed a motion to remand the case to the district court for resentencing. On June 11, 2003, this Court granted the Government's motion.

Notwithstanding the remand order, on August 8, 2003, district court again sentenced Mr. Bolden to thirty-six months' imprisonment. This time, the court held that it was basing three months of the thirty month upward departure on conduct dismissed as part of the plea agreement. The court held the remaining twenty-seven *6 months of the departure were for Mr. Bolden being guilty of the act underlying the misprision count to which he pleaded guilty. Unable to find authority from this Court to support its basis for the twenty-seven month portion of the departure, the district court relied on the Fifth Circuit case United States v. Warters, 885 F.2d 1266 (5th Cir. 1989). On August 14, 2003, the district court entered its judgment and a memorandum opinion and order. On August 18, 2003, Mr. Bolden filed a notice of appeal. Once again, Mr. Bolden appeals the district court's upward departure decision.

*7 STATEMENT OF THE FACTS

On February 8, 2000, Mr. Bolden, Mr. Ghant, and Mr. Nichols were charged in a thirty-five count indictment. (D. Ct. Doc. No. 1). Count one charged all three with conspiracy to distribute cocaine and possession with intent to distribute cocaine, a violation of 21 U.S.C. § 846 (2000). (D. Ct. Doc. No. 1). Counts two through thirty-four charged Mr. Bolden with evading the reporting requirements on currency transactions of $10,000 or more, a violation of 31 U.S.C. § 5313(a) (2000). (D. Ct. Doc. No. 1). Count thirty-five charged all three defendants and sought forfeiture of any proceeds from the drug transactions. (D. Ct. Doc. No. 1). The offenses occurred from September 1, 1994, until July 15, 1998. (D. Ct. Doc. No. 1).

On September 6, 2000, Mr. Ghant filed a motion to sever his case from Mr. Bolden's and the district court granted the motion. (D. Ct. Doc. Nos. 83- 85). Mr. Ghant and Mr. Nichols went to trial before a jury on February 11, 2002. (D. Ct. Doc. Nos. 168-180). Federal Bureau of Investigation Special Agent Dixon Land ("FBI Agent Land") testified for the Government. (Tr. of Trial United States v. Ghant & Nichols, pp. 156-167, 415-420, 424-446, 616-629). FBI Agent Land began wire tapping Mr. Bolden's telephone in January 1998. (Tr. of Trial United States v. Ghant & Nichols, p. 157). Most of the calls FBI Agent Land monitored were calls between Mr. Bolden and Mr. Ghant that took place in April 1998. (Tr. *8 of Trial United States v. Ghant & Nichols, p. 159). FBI Agent Land transcribed many of the calls between Mr. Bolden and Mr. Ghant. (Tr. of Trial United States v. Ghant & Nichols, pp. 160-163). All told, FBI Agent Land personally listened to approximately 3,750 of Mr. Bolden's telephone calls, yet at no point during his testimony did he identify Mr. Bolden as either the kingpin or mastermind of a drug trafficking conspiracy, nor did he offer any testimony that Mr. Bolden structured transactions or concealed the source of any funds. (Tr. of Trial United States v. Ghant & Nichols, pp. 156- 167, 415-420, 424-446, 616-629).

Fidel Che Escamilla ("Fidel Che"), testified for the Government pursuant to a writ of habeas corpus ad testificandum. (D. Ct. Doc. No. 96); Tr. of Trial United States v. Ghant & Nichols, pp. 451-535). Fidel Che testified that on three occasions, he and Mr. Nichols transported cocaine from Dallas, Texas to Little Rock, Arkansas for the purpose of selling it in Little Rock. (Tr. of Trial United States v. Ghant & Nichols, pp. 456-462, 468, 483). Once Fidel Che and Mr. Nichols arrived in Little Rock with the cocaine, they would go to Mr. Ghant's home where Mr. Ghant would pay them for it. (Tr. of Trial United States v. Ghant & Nichols, pp. 461, 462, 467, 468-470, 483, 485-489). On one occasion, Fidel Che, Mr. Nichols, and Mr. Ghant drove to Mr. Bolden's home where Mr. Bolden allegedly told Mr. Ghant that he wanted to purchase cocaine from Fidel Che. (Tr. of Trial United States v. Ghant & Nichols, pp. 463-465). Prior to this one time *9 meeting, Fidel Che had never met Mr. Bolden. (Tr. of Trial United States v. Ghant & Nichols, p. 463). At no point during Fidel Che's testimony did he describe Mr. Bolden as either the kingpin or mastermind of a drug trafficking conspiracy, nor did he offer any testimony that Mr. Bolden structured transactions or concealed the source of any funds. (Tr. of Trial United States v. Ghant & Nichols, pp. 451-535).

Fidel Escamilla, Jr. ("Fidel, Jr."), the father of Fidel Che, also testified for the Government pursuant to a writ of habeas corpus ad testificandum. (D. Ct. Doc. No. 94); Tr. of Trial United States v. Ghant & Nichols, pp. 536-580, 585-604). Fidel, Jr. corroborated Fidel Che's testimony that Fidel Che and Mr. Nichols trafficked cocaine from Dallas to Little Rock and utilized Mr. Ghant as their buyer in Little Rock. (Tr. of Trial United States v. Ghant & Nichols, p. 544, 545, 548, 549, 593-596). Fidel, Jr. also corroborated Fidel Che's testimony that Mr. Bolden allegedly wanted to purchase cocaine from Fidel Che. (Tr. of Trial United States v. Ghant & Nichols, pp. 553, 554). At no point in Fidel, Jr.'s testimony, however, did he describe Mr. Bolden as the kingpin or mastermind of a drug trafficking conspiracy, nor did say he ever met Mr. Bolden. Likewise, he offered no testimony that Mr. Bolden structured transactions or concealed the source of any funds. (Tr. of Trial United States v. Ghant & Nichols, pp. 536-580, 585-604).

Mr. Nichols testified in his own defense. (Tr. of Trial United States v. Ghant & Nichols pp. 803-878). He testified that his only contact with Mr. Bolden *10 occurred when he, Fidel Che, and Mr. Ghant drove to Mr. Bolden's home in Little Rock on one occasion. (Tr. of Trial United States v. Ghant & Nichols, pp. 826-827). At no point during Mr. Nichols' testimony did he describe Mr. Bolden as the kingpin or mastermind of a drug trafficking conspiracy, nor did he offer any testimony that Mr. Bolden structured transactions or concealed the source of any funds. (Tr. of Trial United States v. Ghant & Nichols. pp. 803-878). Mr. Nichols further stated that the only time he met Mr. Bolden was during the one time visit to his home and that he did not know Mr. Bolden very well. (Tr. of Trial United States v. Ghant & Nichols, pp. 854, 857).

At closing argument, the Government described Mr. Ghant as, "the main man." (Tr. of Trial United States v. Ghant & Nichols, p. 938). Mr. Ghant, on the other hand, argued that Harold Barbee and Fidel Che were the "two kingpins." (Tr. of Trial United States v. Ghant & Nichols, p. 960). Neither described Mr. Bolden as the kingpin or mastermind of a drug trafficking conspiracy, nor did either make any mention of Mr. Bolden structuring transactions or concealing the source of any funds.

On February 16, 2002, the jury found Mr. Ghant guilty of counts one and thirty-five of the indictment and found Mr. Nichols guilty of count one. (D. Ct. Doc. Nos. 174, 179). On May 16, 2002, Mr. Ghant appeared for sentencing. (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 1, p. 1). The district court explained *11 to Mr. Ghant that his sentence had to be selected within the sentencing guideline range unless his case presented "atypical features; that is, highly unusual features." (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 1, p. 3).

The court then asked if there were any objections to the presentence report, to which Mr. Ghant's counsel responded, "Yes, sir, we have." (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 1, p. 3). One of the objections concerned the quantity of cocaine with which the Government charged Mr. Ghant. (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 1, pp. 4-6). The Government argued that Mr. Ghant should be held responsible for 150 kilograms or more of cocaine, but at this particular hearing, the Government only had its trial notes to substantiate the amount. (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 1, pp. 4-6). The court ruled that it was not going to sentence Mr. Ghant without having the benefit of a trial transcript in order to verify the amount with which he was to be charged, and ordered Mr. Ghant's sentencing continued pending the preparation of a trial transcript. (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 1, pp. 6, 7). Although his sentencing date was continued, the Court allowed Mr. Ghant to put on witnesses to plead for leniency. (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 1, pp. 9-19). After Mr. Ghant's first witness completed his testimony, the court stated,"...We have what we call the federal guidelines in effect, and I am very much opposed to them as they are, but the law is the law." (Tr. of Sentencing *12 Hr'g United States v. Ghant, Vol. 1, pp. 13, 14). The court went on to say,"...I'm kind of lobbying you here. You may want to contact some of your U.S. representatives or senators in Georgia and -." (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 1, p. 14).

Subsequent to the Ghant and Nichols' trial, a superseding indictment was obtained against Mr. Bolden. (D. Ct. Doc. No. 209). On August 15, 2002, Mr. Bolden waived the indictment and pleaded guilty to the count of the superseding indictment charging him with knowingly and purposely evading the reporting requirements of 31 U.S.C. § 5313(a) (2000). (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, pp. 5-7). Specifically, Mr. Bolden pleaded guilty to structuring $44,300 of bank deposits in such a way as to evade having a financial institution report a transaction of $10,000 or more. (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, pp. 19-22).

After accepting Mr. Bolden's guilty plea, the court informed him that he would have to be sentenced within the guidelines range unless his case turned out to be, "highly unusual." (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, pp. 9, 10). The court further informed Mr. Bolden that it could depart upward in atypical cases. (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden p. 10).

*13 Next, the Government tendered the plea agreement to the court. (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, p. 11). The court asked the Government how Mr. Bolden stood in relation to Mr. Ghant and Mr. Nichols given his involvement and given the fact that they were going to be sentenced to ten to twenty years under the guidelines. (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, p. 13). The Government replied,

"Your Honor, we believe that Mr. Bolden was properly charged in the indictment with the other codefendants; however, for other reasons, we have decided that the plea agreement that we've offered to Mr. Bolden is in the best interests of the United States, and we don't believe it contravenes public policy."

(Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, p. 13). The court then asked, "How would you rank him with the two men that are going to be sentenced this afternoon..." (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden p. 13). The Government responded,

"Well, frankly, your Honor, our theory of the case was that Mr. Bolden was more the mastermind behind the drug activity that was involved with the two defendants. However, we have agreed, as I say, to dismiss Count 1, assuming that Mr. Bolden is able to satisfy the court that he is guilty of the offense that we propose to charge him with with (sic) the superseding information."

(Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden p. 13). This was the first mention by anyone of Mr. Bolden being the "mastermind" of a drug conspiracy and no one, not even the Government, said anything about Mr. Bolden *14 being extensively involved in structuring transactions or concealing the source of funds. Mr. Bolden's counsel responded to the Government's mastermind theory by pointing out that neither Mr. Ghant nor Mr. Nichols had implicated Mr. Bolden as the mastermind of a drug conspiracy, nor were any drugs found on Mr. Bolden's person or in his residence. The Government's evidence consisted solely of tapes of telephone conversations between Mr. Ghant and Mr. Bolden (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, pp. 14, 15).

The court stated, "plea agreements are good for the system if they are properly monitored by the courts", then accepted Mr. Bolden's plea agreement without reservation. (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, p. 16, 17, 23, 24). In exchange for Mr. Bolden pleading guilty to the superseding information, the Government agreed to dismiss the remaining counts of the superseding indictment, including the drug charge. (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, p. 24).

On August 15, 2002, Mr. Nichols appeared for sentencing. (Tr. of Sentencing Hr'g United States v. Nichols, p. 1). Mr. Nichols' counsel moved for a continuance, arguing that Mr. Bolden's plea agreement,"...is so out of line with what we listened to for a week of testimony that I feel I must request additional time so that I can research the transcript to discover if this provides me with *15 anything that I might use to Mr. Nichols' benefit." (Tr. of Sentencing Hr'g United States v. Nichols, p. 2). The court replied,

"...I'm having serious misgivings about my accepting the plea agreement this morning, but I did it and I assume that's irrevocable, and it is to a great extent up to the executive, the prosecutorial discretion. Ms. Jegley, I think there is no question - as I recall, this morning you confirmed what I remembered, is that Bolden has always been viewed as the kingpin in this particular conspiracy. Like I say, you confirmed that this morning, at least from the prosecutor's point of view, and that was my understanding.

And what we're faced with, I don't remember what the range is, I've looked it over here, but I believe the statutory minimum is ten years for this defendant and for the next defendant coming up this afternoon. Mr. Nichols, and Mr. Ghant is the other defendant. I'm - I am seriously considering giving them the statutory minimum in view of the plea agreement this morning. What is the Government's position on that? In other words, depart downward."

(Tr. of Sentencing Hr'g United States v. Nichols, p. 3). The "particular conspiracy" the court referred to was the Government's case theory that Mr. Bolden was the "mastermind behind the drug activity that was involved with the two defendants." (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, p. 13). The Government responded to the court's inquiry as follows:

"Well, your Honor, there are a couple of points here that I would like to make. First of all, we did make plea offers both to Mr. Nichols and to Mr. Ghant that would have been extremely favorable to them. And if I'm correct about this, when Mr. Govar was handling *16 the prosecution earlier, I believe that this was at a suppression hearing or perhaps at the time where the court granted the severance of Mr. Bolden's trial from that of Mr. Nichols and Mr. Ghant, I believe on the table was an offer to Mr. Nichols for misprision of a felony, which had he accepted it, would have given him a statutory maximum of three years. I would also like -and my understanding was that he rejected the offer that was made to him.

Then after the conclusion of the trial, your Honor, we again approached Mr. Nichols and solicited his cooperation, which could have reduced his exposure from ten years to potentially five years' incarceration had he accepted it and provided substantial assistance.

Similarly, there were offers made to Mr. Ghant seeking his cooperation both before trial and again after the trial. We've done everything we know how to do as prosecutors to level the playing field, knowing that both of these defendants were facing extensive periods of incarceration if we were able to prove up our case both beyond a reasonable doubt in front of the jury and then by a preponderance on drug quantity findings.

So I understand and appreciate any sort of distaste for the result, but it is not as though we have not attempted to help these people help themselves with truthful testimony."

(Tr. of Sentencing Hr'g United States v. Nichols, pp. 3, 4). Mr. Nichols rejected two plea offers, one of which was identical to the plea agreement the Government offered to Mr. Bolden. Mr. Ghant also rejected two plea offers that would have substantially reduced his incarceration exposure. Nonetheless, the court chided both the Government and the guidelines, stating:

*17 "...Ms. Jegley, let me say this, and I'm not fussing at you personally, but I - I understand that you may have been more than reasonable or Mr. Govar may have been more than reasonable and Mr. Nichols and Mr. Ghant may have to pay to look at the hold card, but at some point I don't think somebody ought to have to pay so much to look at the hold card. In other words, as I see it, someone who exercised their constitutional right to force the government to prove them guilty beyond a reasonable doubt pays in my opinion too heavy a penalty in these circumstances...the guidelines concern me vastly because of this to begin with, and I - I have said many times that judges, and I say it only somewhat facetiously, that judges don't sentence anymore; it's the Congress and the guidelines commission and the prosecutors. Naturally, I think the judges ought to have more to do with it, but that isn't how it's set up right now."

(Tr. of Sentencing Hr'g United States v. Nichols, pp. 6, 7). The court then asked Mr. Nichols if he was satisfied with his lawyer to which he replied, "No, sir." (Tr. of Sentencing Hr'g United States v. Nichols. p. 7). Despite Mr. Nichols' complaints, the court stated, "My observation was that he did a superb job in the trial." (Tr. of Sentencing Hr'g United States v. Nichols, p. 7, 8). Mr. Nichols' presentence report calculated a guidelines range of 151 to 188 months. (Tr. of Sentencing Hr'g United States v. Nichols, p. 9). The court, however, departed downward and sentenced Mr. Nichols to 120 months' imprisonment. (Tr. of Sentencing Hr'g United States v. Nichols, pp. 12-14).

*18 Next, Mr. Ghant appeared for sentencing. (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 21). The court began Mr. Ghant's sentencing hearing by asking the Government,

"Ms. Jegley, at the last sentencing I questioned why I shouldn't give ten years to Mr. Nichols and to Mr. Ghant, and I believe you said there was some reason why I shouldn't give Mr. Ghant ten years, even though I gave Mr. Nichols ten years. And so would you explain that to me?"

The Government responded,

"...the difference here has to do with the level of culpability of the two individuals, and as I recall the amount of cocaine powder that was involved here that was most directly connected to Mr. Nichols, that would have fallen at the ten-year statutory minimum, and we believe clearly as a result of the testimony that was given here, that Mr. Ghant is connected to substantially more cocaine powder and crack cocaine that Mr. Nichols was."

(Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 23). The court then asked who filed a motion to sever Mr. Ghant and Mr. Nichols' case from Mr. Bolden's, to which Mr. Ghant's counsel replied,"...Mr. Lucas and Greg Bryant, who represented Mr. Ghant prior to Mr. Simpson." (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 24). The court then asked what the grounds were for the motion, to which Mr. Ghant's counsel responded,

"...a large portion of the trial having to do with Mr. Bolden had to do with money laundering, and there was a whole lot of financial information that would have been *19 unnecessary in this trial because it couldn't be connected to either of these two defendants and that basically that Mr. Bolden was the mastermind of the whole thing and that his trial would involve a greater degree of culpability than these two defendants and that that would overflow and affect these two defendants and prejudice them adversely..."

(Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 24). This statement by Mr. Ghant's counsel was the first mention by Mr. Ghant of Mr. Bolden being the "mastermind of the whole thing." The court then said,

"...I guess you know that Mr. Bolden entered into a plea agreement this morning where he is limited to three years under a misprision of a felony, superseding information, and I have questioned whether or not - well, in the first place, I've got misgivings about approving the plea agreement, but I did, and so that's done. But I also have misgivings about Mr. Ghant and Mr. Nichols getting so much more...was a generous plea offer made to Mr. Ghant?"

(Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 25). The Government responded,

"Yes, sir. Your Honor, what I can say is that we were anticipating that had Mr. Ghant cooperated and provided substantial assistance, that he would certainly have - he would not be looking at the kind of exposure he is looking at now. And we did approach Mr. Ghant, both before trial and after the trial, and sought his cooperation." *20 (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, pp. 25, 26). The court responded in a fashion similar to the way it responded during Mr. Nichols' hearing:

"...I believe in giving people a break who do cooperate, but I'm very concerned about loading someone up who decides to exercise their constitutional right to go to trial. As a matter of fact, I think at one point the Supreme Court of the United States held that you couldn't give somebody extra for going to trial. I mean, at least you can't do it on the record. You can't say you pay to look at your hold card, that if you exercised your right to trial, I'm going to give you more time. I think the Supreme court held at one time, a good while ago, that that can't be done. It looks like that's what we've got here."

(Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 26). At no point during the entire case did Mr. Ghant or Mr. Nichols argue that the Government violated their constitutional rights or "loaded upon them" or "gave them extra" for exercising their right to have a trial. The court then asked Mr. Ghant if he was satisfied with his lawyers to which he replied, "No, your Honor, not a hundred percent." (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 27). After hearing Mr. Ghant's reasons for his dissatisfaction, the court said the following about Mr. Ghant's attorneys,

"I've known Mr. Simpson for a long time and tried cases against him, civil cases, before I came on the bench, and he's a superb trial lawyer. But he's got his expert partner in there with him, who is here with you today, to help him *21 out. And I thought he was kind of like a duck to water, from my observation."

(Tr. of Sentencing Hr'g United States v. Ghant Vol. 2, pp. 28, 29). Mr. Ghant's presentence report calculated his guidelines range at 188 to 235 months. (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 47). Mr. Ghant then moved for a downward departure based in part on Mr. Bolden's sentence. (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, pp. 49, 50). Before ruling on Mr. Ghant's motion for a downward departure, the court allowed him to put on witnesses to plead for leniency. (Tr. of Sentencing Hr'g United States v. Ghant Vol. 2, pp. 50-55). One of Mr. Ghant's witnesses and the court engaged in the following colloquy regarding the guidelines,

THE WITNESS:"...I'm concerned about the disparity between the sentencing of the others, and I'm really - I know the judge probably can't do anything, that I'm really not having an understanding of why the disparities and why the guidelines are set as they are. I do intend to research that as I move forward and as I have had this experience with Mr. Ghant."

THE COURT: "I recommend that you get up to speed on it and write your congressmen and your senators, because they're the ones that can do something about it...You appear to me to be the kind of person that will take action. I encourage you to do so. I'm very dissatisfied with the guidelines, but I've got to follow my oath."

(Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, pp. 51, 52). In one last plea for leniency, Mr. Ghant's counsel asked for a minimum sentence in part because, *22 "...the person the Government has called the mastermind of the entire thing has just gotten much less than what Mr. Ghant could face as a minimum sentence..." (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 57). The court then stated,

"Ms. Jegley, let me tell you that I'm anticipating a downward departure in view of the Government's concession that the gentleman sentenced this morning was the kingpin in this, and it seems to me like the sentence asked for for this defendant goes outside the heartland when you take the totality of the circumstances of this case. So I'll let you argue against downward departure if you wish."

(Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 61). The Government responded,

"...Like the court, I've got a job to do as a prosecutor, and I know how I feel about this personally. I do believe that there ought to be some equity in sentencing and equity as between co-defendants, co-conspirators. My difficulty here professionally is that I don't see a legal basis upon which to depart downward...

"...the difficulty here is that charging decisions are made by the prosecutor all the time. Plea decisions are made by the prosecutor. Frequently we have cases where there are multiple defendants in a case and some defendants receive more lenient treatment than others as a result of plea negotiations and decisions that are made. And so I think that this is not an unusual situation from that perspective. So I don't know of a basis upon which a departure can be made here as a matter of law, given the facts of this case. All I can say is, I think from a legal standpoint that the court is bound to sentence Mr. Ghant here within the guideline range that's been *23 announced, and if the court sees fit to do that, I would recommend 188 months."

(Tr. of Sentencing Hr'g United States v. Ghant Vol. 2, pp. 62, 63). The court overruled the Government's objection and said the following,

"...I feel moved to depart downward in this case. I realize there's a great deal of prosecutorial discretion in charging decisions and plea agreement decisions, and generally I think courts are obligated to let the prosecutor have that discretion. But I do believe in this case that it goes beyond the heartland, as expressed - or beyond the pale, as I might say. We have here the admitted kingpin or at least admitted by the prosecutors that the kingpin himself gets a three-year max on a misprision of a felony with an indication in the plea agreement that it will be eight or nine - four to either nine or ten months with the guidelines based on the charge. And then people with lesser - who are not the kingpins facing 188 months or more, I just - I don't believe that's within the heartland, so I'm going to depart downward."

(Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 63). The court then sentenced Mr. Ghant to 126 months' imprisonment. (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 63). Again, the court's decision to depart downward was based on its stated belief - brought on by the Government's recitation of its theory of its case - that Mr. Bolden was a drug trafficking kingpin who received a much lesser punishment than his co-defendants who were not kingpins. That in turn led the court to believe this case was "beyond the pale." The *24 court did not indicate that it believed this case to be "beyond the pale" because of Mr. Bolden's alleged involvement in structuring transactions or concealing funds.

On November 22, 2002, Mr. Bolden reported for sentencing. (Tr. of Hr'g United States v. Bolden, p. 1). The court opened the hearing by announcing that it was going to depart upward and sentence Mr. Bolden to the statutory maximum. (Tr. of Hr'g United States v. Bolden, p. 2). The court said it based its departure decision on one, Mr. Nichols and Mr. Ghant received 120-month sentences and their cases were severed because the court considered Mr. Bolden the mastermind of the offenses and that would adversely affect Mr. Nichols and Mr. Ghant's ability to get a fair trial, and two, the court's belief that Mr. Bolden's culpability was not adequately reflected by the guidelines range and there were aggravating circumstances of a nature not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. (Tr. of Hr'g United States v. Bolden, p. 2).

The court postponed Mr. Bolden's sentence to allow his attorneys an opportunity to respond to the court's upward departure decision. (Tr. of Hr'g United States v. Bolden, p. 2). Following the hearing, the court sent a letter to the parties citing its reasons for its upward departure decision and citing Guidelines Section 5K2.0 as authority. (D. Ct. Doc. No. 276). On November 25, 2002, the court asked the Government and Mr. Bolden to file briefs giving factual and legal *25 reasons why the court should not depart upward. (D. Ct. Doc. No. 278). On February 13, 2003, Mr. Bolden's counsel sent the court a brief in letter form arguing against an upward departure. (D. Ct. Doc. Nos. 287, 289). In the letter brief, Mr. Bolden pointed out the following: first, the Government and Mr. Bolden entered into a good faith plea agreement that the court accepted and ratified twice after accepting it; second, the Government did not move for an upward departure; and third, the court deemed Mr. Bolden the kingpin or mastermind of the drug conspiracy not based on any evidence or testimony from any witnesses, but on statements from the Assistant United States Attorney at Mr. Bolden's sentencing hearing, and such statements are not evidence. (Feb. 13, 2003 Letter Brief from John W. Walker to Judge William R. Wilson).

Although the court directed both Mr. Bolden and the Government to file briefs arguing against an upward departure, the Government did not do so. (D. Ct. Doc. No. 278). In fairness to the Government, however, the court's directive placed it in a very awkward position because, first, the court, not the Government, sought the upward departure, and second, the plea agreement stated that, "No party will seek any role enhancement or reduction that might otherwise be available pursuant to U.S.S.G." (Bolden Plea Agreement ¶ 2b). Thus, had the Government argued against an upward departure, one, it would have found itself arguing for a *26 sentence it did not seek, and two, it may have placed the Government in violation of a plea agreement it entered into in good faith.

On March 19, 2003, Mr. Bolden reported for sentencing. (Tr. of Sentencing Hr'g United States v. Bolden, Vol. 2, p. 1). Mr. Bolden's counsel directed the court's attention to the fact that its upward departure decision was based primarily on statements made by counsel and such statements are not evidence. (Tr. of Sentencing Hr'g United States v. Bolden, Vol. 2, pp. 33, 34). The court announced that Mr. Bolden's guidelines range was zero to six months, but the statutory maximum was three years. (Tr. of Sentencing Hr'g United States v. Bolden, Vol. 2, p. 37). Mr. Bolden's co-counsel then asked the court for the basis of its conclusion that Mr. Bolden was the kingpin or mastermind of the drug conspiracy. (Tr. of Sentencing Hr'g United States v. Bolden, Vol. 2, pp. 38, 39). The court responded by saying it made that determination based on Mr. Bolden's recorded telephone calls and the testimony of FBI Agent Land, Fidel Che, and Fidel, Jr. (Tr. of Sentencing Hr'g United States v. Bolden, Vol. 2, pp. 39, 40, 60, 61). The court conceded, however, that listening to the recorded telephone calls by themselves would not lead one to conclude that Mr. Bolden was engaging in criminal behavior. (Tr. of Sentencing Hr'g United States v. Bolden, Vol. 2, p. 60). The court also said it drew its conclusion from reliable hearsay evidence. (Tr. of Sentencing Hr'g United States v. Bolden, Vol. 2, p. 41, 58).

*27 The court concluded the hearing by sentencing Mr. Bolden to thirty-six months' imprisonment, a thirty month upward departure. (Tr. of Sentencing Hr'g United States v. Bolden, Vol. 2, p. 62). On March 20, 2003, the court entered the judgment and commitment order. (D. Ct. Doc. No. 293). On that same day, Mr. Bolden file a notice of appeal. (D. Ct. Doc. No. 294).

In his Appellant's Brief, Mr. Bolden made three primary arguments. First, when the court departed upward based on Section 5K2.0, it did not make a refined assessment of the many facts bearing on the outcome of Mr. Bolden's case, and it did not compare Mr. Bolden's case with any other cases arising under Section 5K2.0. In other words, the court held Mr. Bolden's culpability was not adequately reflected in the given guidelines range, but the court did not state with particularity how the guidelines failed to account for the offense to which Mr. Bolden pleaded guilty, nor did the court state with specificity how Mr. Bolden's case differed from other cases arising under Section 5K2.0. United States v. Cammisano, 917 F.3d 1057, 1065 n.2 (8th Cir. 1990) (citing United States v. Wells, 878 F.2d 1232, 1233 (9th Cir. 1989) (per curiam) (quoting 18 U.S.C. § 3553(c))).

Second, the trial testimony of FBI Agent Land, Fidel Che, and Fidel, Jr., did not support the Government's theory that Mr. Bolden was the kingpin or mastermind of the drug trafficking of Mr. Ghant and Mr. Nichols. None of the foregoing witnesses identified Mr. Bolden as the kingpin or mastermind during the *28 entire six day trial. The first time the words "kingpin" or "mastermind" were used in connection with Mr. Bolden occurred when the Government explained to the court what its theory of the case would have been had Mr. Bolden proceeded to trial. (Tr. Of Waiver of Indictment and Guilty Plea United States v. Bolden, p. 13). Statements and arguments of attorneys are not evidence, thus the court should not have treated the Government's case theory as evidence upon which to conclude that Mr. Bolden was the kingpin or mastermind of a drug conspiracy. 8th Cir. Crim. Jury lnstr. 1.03.

Third, the court departed upward because it believed, based on a statement by the Assistant United States Attorney, that Mr. Bolden was the central figure in the drug trafficking of Mr. Ghant and Mr. Nichols. (Tr. Of Sentencing Hr'g United States v. Nichols, p. 3); (Tr. Of Sentencing Hr'g United States v. Ghant, Vol. 2, p. 61, 63); (Tr. of Hr'g United States v. Bolden, p.2). The Government, however, dismissed the drug count of the superseding indictment as part of its plea agreement with Mr. Bolden, and the court dismissed the superseding indictment on August 15, 2002. (Bolden Plea Agreement p. 1 ¶ 1). At the time of Mr. Bolden's sentencing, it was reversible error for the court to depart upward based on counts dismissed as part of a plea agreement. United States v. Bougie, 279 F.3d 648, 650 n.3 (8th Cir. 2002) (citing United States v. Harris, 70 F.3d 1001 (8th Cir. 1995) *29 (holding it would be error to depart upward on the basis of counts dismissed as part of a plea agreement)).

The Government did not file an appellee's brief. Instead, on May 29, 2003, it filed a motion for remand for resentencing. In its motion, the Government conceded that the guidelines applicable to Mr. Bolden do "not permit dismissed or uncharged conduct to be used for sentencing purposes." On June 11, 2003, this Court granted the Government's motion, administratively closed the case, and remanded the case for further proceedings.

On June 30, 2003, the district court entered an order notifying the parties that it was still considering an upward departure. (D. Ct. Doc. No. 301). This time however, the court changed the basis of its departure from guidelines Section 5K2.0 to Section 2X4.1. (D. Ct. Doc. No. 301). In that same order, the court stated that testimony from the transcript of Mr. Ghant and Mr. Nichols' trial contained what the court considered sufficient proof to support its conclusion that Mr. Bolden's culpability was not adequately reflected in his guidelines range. See id. On July 28, 2003, Mr. Bolden filed a motion requesting that the court sentence him within the guidelines range in his presentence investigation report. (D. Ct. Doc. No. 303). Mr. Bolden's motion also rebutted at length each and every one of the court's transcript citations that it relied on to conclude that Mr. Bolden's was the kingpin or mastermind of the drug trafficking conspiracy. See id.

*30 On July 29, 2003, the court asked the Government if it intended to respond to Mr. Bolden's July 28, 2003 motion. (D. Ct. Doc. No. 304). On July 31, 2003, the Assistant United States Attorney sent a letter by facsimile to the court notifying it that the Government was not going to file a response. On August 1, 2003, the court entered an order reiterating its intent to depart upward and cited the following Fifth Circuit cases as authority for what the court intended to do: United States v. Godbolt, 54 F.3d 232 (5th Cir. 1995); United States v. Pigno, 922 F.2d 1162 (5th Cir. 1991); United States v. Waiters. 885 F.2d 1266 (5th Cir. 1989). (D. Ct. Doc. No. 305). On August 7, 2003, Mr. Bolden filed a response to the Fifth Circuit cases cited by the court, arguing that each case was not only factually inapposite, but the reasoning of those cases had been rejected by this Court in United States v. Harris. 70 F.3d 1001 (8th Cir. 1995); (D. Ct. Doc. No. 309). Mr. Bolden also argued that reliance by the district court on conduct dismissed as part of his plea agreement would violate the Ex Post Facto clause of the United States Constitution. See id.

On August 8, 2003, Mr. Bolden reported for sentencing. (D. Ct. Doc. No. 308). The court held it was going to depart upward by thirty months, twenty-seven of which was based on guidelines Section 2X4.1. (Tr. of Resentencing Hr'g United States v. Bolden, pp. 12-18, 31-33). The remaining three months were for *31 dismissed conduct. (Tr. of Resentencing Hr'g United States v. Bolden, pp. 12-18, 31-33). With respect to the upward departure the Government stated the following:

"Your Honor, again, I find myself in a very awkward situation here. Let me say one thing about this. If the Court is inclined to sentence Mr. Bolden to 33 months, I am asking the Court not to include an upward departure based upon the holding in United States v. Harris because - and I - again, this is awkward. I will be called upon to write a brief for the Eighth Circuit Court of Appeals if an appeal follows this, and I expect that there will be an appeal, and I'm - I think I've made it very clear here that I'm not advocating that the Court depart upward based upon the plea agreement; however, if the Court does something, I want to be in a position to be able to argue that what the Court has done is legally defensible, and I'm not comfortable making that argument under United States v. Harris..."

(Tr. of Resentencing Hr'g United States v. Bolden, pp. 29, 30). Mr. Bolden's attorneys objected to the twenty-seven month departure, the three month departure, and the court's conclusion that Mr. Bolden was a drug kingpin deserving a longer sentence than his guidelines range of zero to six months. (Tr. of Resentencing Hr'g United States v. Bolden, pp. 12, 20-29, 34-37). The court rejected the applicability of United States v. Harris, overruled the objections of Mr. Bolden's attorneys and the Government, and imposed the identical thirty-six month sentence it imposed the first time. (Tr. of Resentencing Hr'g United States v. Bolden, pp. 31-33, 37, 38).

*32 On August 14, 2003, the court entered its judgment along with a memorandum opinion and order. (D. Ct. Doc. Nos. 311, 312). On August 18, 2003, Mr. Bolden filed a notice of appeal seeking this Court's second review of the district court's upward departure. (D. Ct. Doc. No. 313).

*33 SUMMARY OF THE ARGUMENT

On any given day in United States District Courts throughout this country United States Attorneys obtain indictments that routinely involve multiple defendants charged with multiple offenses. What usually follows is a motion to sever filed by one or more of the defendants followed by plea agreements and trials. As a result of this every day scenario, a single case can result in disparate dispositions. That is how federal criminal cases play out daily throughout this country and this case was no different. Before a district court can depart upward, that court must find that certain aspects of the case are unusual enough for it to fall outside the heartland of similar cases under the guidelines. United States Sentencing Guidelines Manual § 5K2.0, cmt.

One cannot objectively describe the facts and dispositions of this case as falling outside the heartland of similar cases under the guidelines. Mr. Bolden was offered a plea agreement and accepted it. Mr. Ghant and Mr. Nichols were also offered plea agreements before and after trial. In fact, Mr. Nichols was offered the identical plea agreement offered to Mr. Bolden. Both defendants rejected the Government's offers and elected to go to trial where they were convicted. As one would expect, the sentences following their convictions were much more severe than the sentences they would have received had they not rejected the plea offers. That is the natural and foreseeable risk of electing to go to trial instead of accepting *34 a plea offer. Contrary to the district court's sardonicism, Mr. Ghant and Mr. Nichols did not receive a "...ten-year prison bonus for going to trial." Their sentences are the result of the sober deliberations of a duly constituted jury that sat through six days of testimony, exhibits, and arguments and concluded that the Government proved every element of its case beyond a reasonable doubt. Mr. Ghant and Mr. Nichols appealed their convictions to this Court and on August 6, 2003, those convictions were affirmed [FN3].

FN3. See United States v. Ghant, Case No. 02-3258 and United States v. Nichols, Case No. 02-3262.

If there is an atypical feature of this case, it is the district court's frequent and public statements regarding its strong opposition to the guidelines themselves as well as its zeal to see to it that Mr. Bolden received what the court considered to be a proper sentence. Dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guidelines range. United States Sentencing Guidelines Manual § 5K2.0, cmt; 18 U.S.C. § 3553(b) (2000).

Finally, up until the time of sentencing, this case presented an instance in which the plea bargaining process functioned smoothly for both parties. United States v. Harris, 70 F.3d 1001, 1002 (8th Cir. 1995). Mr. Bolden and the Government entered into their plea agreement in good faith and both parties fulfilled their obligations under it. See id. Although both parties knew the district *35 court was not bound by their guidelines calculations, once the court accepted the plea agreement, they had a reasonable expectation that the court would sentence Mr. Bolden within the appropriate guidelines range for his offense. See Harris, 70 F.3d at 1003. Permitting sentencing courts to accept a defendant's guilty plea and yet disavow the terms of and intent behind the bargain would bring unacceptable instability to a process that is vital to judicial administration. See Harris. 70 F.3d at 1002, 1003. That is particularly so when the court's disavowal is rooted in little more than its subjective desire to correct what it thinks is an injustice.

This Court has remanded this matter for resentencing once. Once again, the district court has ignored the strictures of the sentencing guidelines. This Court should remand this matter a second time with instructions that the district court sentence Mr. Bolden within his calculated guidelines range of zero to six months.

*36 ARGUMENT AND APPLICABLE STANDARD OF REVIEW

I.

THE DISTRICT COURT'S DECISION TO DEPART UPWARD BASED ON CONDUCT DISMISSED AS

PART OF A PLEA AGREEMENT VIOLATED THE EX POST FACTO CLAUSE OF THE UNITED STATES

CONSTITUTION AND CONTRAVENED THIS COURT'S HOLDING IN UNITED STATES v. HARRIS

STANDARD OF REVIEW

On April 30, 2003, Congress modified the standard of review for departures from the sentencing guidelines when it enacted the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today ("PROTECT") Act of 2003, Pub. L. No. 108-21, 117 Stat. 650 (2003). United States v. Flores, 336 F.3d 760, 763 (8th Cir. 2003). The PROTECT Act amended 18 U.S.C. § 3742(e) (2000). Flores, 336 F.3d at 763. Under 18 U.S.C. § 3553(c)(2), as amended by § 401(c) of the PROTECT Act, if a district court departs from the guideline range, its reasons for departing must be stated with specificity in the written order of judgment and commitment. See id.

Whether the district court based a departure on a permissible factor and whether it provided the written statement of reasons now required for a departure is reviewed de novo. See id. (citing 18 U.S.C. § 3742(e) (2000)). A sentencing *37 court's factual findings are still reviewed for clear error and the reasonableness of a permissible departure for abuse of discretion. Flores, 336 F.3d at 763.

A.

THE DISTRICT COURT CONTRAVENED UNITED STATES v. HARRIS

When the district court sentenced Mr. Bolden the first time on March 20, 2003, it based its entire upward departure on guidelines Section 5K2.0. (D. Ct. Doc. No. 293). Section 5K2.0 empowers a sentencing court to depart from the guidelines if the court finds that there exists an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. United States Sentencing Guidelines Manual § 5K2.0 cmt. (citing 18 U.S.C. § 3553(b) (2000)). In utilizing Section 5K2.0, however, the district court relied on a drug count the Government dismissed in its plea agreement with Mr. Bolden. (Aug. 14, 2003 Mem. Op. & Order, p. 2).

In his first appeal to this Court, Mr. Bolden argued the court's reliance on the dismissed count contravened this Court's decision in United States v. Harris, 70 F.3d 1001 (8th Cir. 1995). Harris held that it is reversible error for a sentencing court to depart based on counts dismissed a part of a plea agreement. See id. In the best tradition of ethics and professionalism, the Government recognized the district court's error and asked this Court to remand this matter for resentencing which this *38 Court did. (May 29, 2003 Mot. of Appellee for Remand for Resentencing, Case No. 03-1771; June 11, 2003 J. Granting Mot. of Appellee to Remand for Resentencing, Case No. 03-1771).

On remand, however, the district court once again relied on the dismissed drug count to depart upward by three months. (Aug. 14, 2003 Mem. Op. & Order, pp. 2, 3, 11-16). The district court held that Harris was inapplicable because one, the plea agreement stated that sentencing is ultimately up to the district court, two, the court advised Mr. Bolden that it might depart upward, and three, the district court offered Mr. Bolden an opportunity to withdraw his guilty plea after the court had already accepted it. (Aug. 14, 2003 Mem. Op. & Order, pp. 11-16). This argument is without merit and reflects a misunderstanding of the holding in Harris.

First, Mr. Bolden's plea agreement was no different than the plea agreement in Harris in that it contained boilerplate language referencing the fact that sentencing is ultimately up to the court. Harris, 70 F.3d at 1003; (Bolden Plea Agreement ¶ 4). Second, while the court advised Mr. Bolden that it might depart upward, when it came time to accept or reject the plea agreement the court accepted it without reservation and ratified that acceptance on two other occasions. (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, p. 16, 17, 23, 24); (Tr. of Sentencing Hr'g United States v. Nichols p. 3; Tr. of Sentencing Hr'g United States v. Ghant Vol. 2, p. 25).

*39 The third distinction put forth by the court is particularly unpersuasive. If all it took for the court to avoid contravening Harris was to offer Mr. Bolden a chance to withdraw the plea the court had already accepted, then Harris itself would be rendered a cipher. At bottom, Harris admonishes sentencing courts not to undermine plea bargains by allowing defendants to plead guilty to certain charges only to penalize them later for charges that have, by agreement, been dismissed. Harris, 70 F.3d at 1004 (citing United States v. Castro-Cervantes, 927 F.2d 1079, 1082 (9th Cir. 1990)). Under the district court's reading of Harris accepting a plea agreement means nothing because if the court later decides it should not have accepted the plea, it can simply offer the defendant an opportunity to withdraw it and after the defendant rejects the offer, sentence him as if no agreement ever existed. It is axiomatic that no defendant is going to withdraw a plea that offers a sentence more favorable than the sentence the court wants to impose. The district court knew this, but needed some way to do an end run around Harris, so it made Mr. Bolden an offer the court knew he would refuse. The court offered him a chance to withdraw his plea so the court could give him a sentence thirty months longer than he would get under the plea. Harris simply does not permit district courts to do that, therefore the district court's conclusion that Harris is inapposite is clearly erroneous.

*40 B.

THE DISTRICT COURT VIOLATED THE EX POST FACTO CLAUSE

The offense to which Mr. Bolden pleaded guilty concluded on or about July 15, 1998. (Presentence Investigation Report, Pt. D. ¶ 4). The Court sentenced Mr. Bolden under the 1997 version of the guidelines. (Presentence Investigation Report, ¶ 15). On November 1, 2000, the United States Sentencing Commission added Amendment 604 to the guidelines which included Section 5K2.21. That section provides:

"The court may increase the sentence above the guideline range to reflect the actual seriousness of the offense based on conduct (1) underlying a charge dismissed as part of a plea agreement in the case, or underlying a potential charge not pursued in the case as part of a plea agreement or for any other reason; and (2) that did not enter into the determination of the applicable guideline range."

Section 5K2.21 was added to address the circuit conflict regarding whether a court can base an upward departure on conduct that was dismissed or not charged as part of a plea agreement in the case. United States Sentencing Guidelines Manual, Supp. to Appendix C (2001) § 5K2.21 cmt. A majority of circuits [FN4] held *41 the sentencing court, in determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, could consider without limitation any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See id. The minority of circuits [FN5], including this Court, held that a departure based on conduct uncharged or dismissed in the context of a plea agreement is inappropriate. See id.

FN4. United States v. Baird, 109 F.3d 856 (3rd Cir. 1997) (allowing upward departure based on dismissed counts if the conduct underlying the dismissed counts is related to the offense of conviction conduct); United States v. Barber, 119 F.2d 276, 283-84 (4th Cir. 1997) (en banc); United States v. Cross. 121 F.3d 234 (6th Cir. 1997) (allowing upward departure based on dismissed conduct); United States v. Big Medicine, 73 F.3d 994 (10th Cir. 1995) (allowing departure based on uncharged conduct); United States v. Ashburn, 38 F.3d 803 (5th Cir. 1994) (allowing upward departure based on dismissed conduct); United States v. Figaro, 925 F.2d 4 (1st Cir. 1991) (allowing upward departure based on uncharged conduct); United States v. Kim, 896 F.2d 678 (2d Cir. 1990) (allowing upward departure based on related conduct that formed the basis of dismissed counts and based on prior similar misconduct not resulting in conviction). United States Sentencing Guidelines Manual, Supp. to Appendix C (2001) § 5K2.21 cmt.

FN5. United States v. Lawton, 193 F.3d 1087 (9th Cir. 1999) (court may not accept plea bargain and later consider dismissed charges for upward departure in sentencing); United States v. Harris, 70 F.3d 1001 (8th Cir. 1995) (error to depart based on counts dismissed as part of plea agreement); United States v. Ruffin, 997 F.2d 343 (7 Cir. 1993) (same).

United States Sentencing Guidelines Manual, Supp. to Appendix C (2001) § 5K2.21 cmt.

Section 5K2.21 did not exist at the time Mr. Bolden committed the offense to which he pleaded guilty, but it did exist at the time of his sentencing. The district court could not utilize Section 5K2.21 because it provides for a harsher sentence than the guidelines in effect at the time Mr. Bolden committed his offense. United States v. Comstock, 154 F.3d 845, 848 (8th Cir. 1998) (citing United States v. Bell 991 F.2d 1445, 1452 (8th Cir. 1993) (holding the ex post *42 facto [FN6] clause is violated if a defendant is sentenced under the guidelines in effect at the time of sentencing when those guidelines produce a sentence harsher than one permitted under the guidelines in effect at the time the crime is committed)).

FN6. The Ex Post Facto clause provides, "No Bill of Attainder or ex post facto Law shall be passed." U.S. Const. art. I, § 9, cl. 3.

The district court held it did not violate the ex post facto clause because the 1997 guidelines permitted the consideration of dismissed charges. (Aug. 14, 2003 Mem. Op. & Order, pp. 12-16). This conclusion is clearly erroneous because in 1997 Section 5K2.21 did not exist and Harris was controlling. As discussed in section LA of this brief, the court's belief that it was not bound by Harris is clear error, thus ignoring that case for the purpose of using Section 5K2.21 was a violation of the ex post facto clause and is reversible error.

II.

THE DISTRICT COURT CLEARLY ERRED WHEN IT RELIED ON UNITED STATES v. WARTERS,

885 F.2d 1266 (5th CIR. 1989) BECAUSE THIS COURT AND TWO OTHER CIRCUIT COURTS

HAVE REJECTED THE REASONING OF WARTERS AND ITS PROGENY

On remand, the district court notified the parties that it was changing its basis for an upward departure from Section 5K2.0 to Section 2X4.1. (D. Ct. Doc. No. 301). This was the first time the court made any mention of Section 2X4.1. The court cited United States v. Fortier, 242 F.3d 1224 (10th Cir. 2001) and United States v. Smith. 116 F.3d 857 (10th Cir. 1997) as authority for allowing the *43 changed basis. Those decisions are not applicable to this case because this Court has held that trial courts cannot consider new bases for departures on remand where remand was limited to resentencing within the applicable guideline sentencing range. United States v. Prestemon, 952 F.2d 1089 (8th Cir. 1992). The purpose of the Government's motion for remand was to have the court resentence Mr. Bolden consistent with the plea agreement between the parties and within the applicable guidelines range. The Assistant United States Attorney expressed that sentiment to the court at Mr. Bolden's resentencing hearing. (Tr. of Resentencing Hrg United States v. Bolden, pp. 29, 30). Thus, the court's reliance on Fortier and Smith is misplaced.

For a trial court to shift positions during resentencing for no reason other than to overcome a guidelines sentence with which it disagrees is unseemly. Employing whichever legal arguments are necessary and effective to defend a position is part of the craft of being a lawyer. Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court, 301 (Times Books Random House) (1998). It is not, however, a legitimate part of judging. See id. Judges serve as the law's referees and they should not engage in the kind of tactical maneuvering that lawyers for the litigants do. See id.

*44 Notwithstanding the propriety of the district court's shifting of its basis for its upward departure, the authorities it relied on are inapposite. The court could not find authority from this Court to depart upward under Section 2X4.1, so it looked to the Fifth Circuit and found United States v. Warters, 885 F.2d 1266 (5th Cir. 1989), United States v. Pigno, 922 F.2d 1162 (5th Cir. 1991), and United States v. Godbolt, 54 F.3d 232 (5th Cir. 1995). (Aug. 14, 2003 Mem. Op. & Order, pp. 18-22).

In Waiters, the defendant entered into a written plea agreement whereby he pleaded guilty to misprision of a felony and was sentenced based upon his guilt for the underlying felony of drug conspiracy. Waiters, 885 F.2d at 1272. At the plea hearing, the Government stated that the defendant was "also a member of the conspiracy which committed...overt acts...within the Southern District of Texas, and in the Northern District of Ohio the defendant furnished $20,000 for the purchase of approximately twenty pounds of marijuana, which he was going to distribute." Warters, 885 F.2d at 1270. The defendant did not deny the Government's statement that he was part of a drug conspiracy. See id. By contrast, when the Government accused Mr. Bolden of being the mastermind of a drug conspiracy he strongly denied it on the record [FN7]. (Tr. of Waiver of Indictment and *45 Guilty Plea United States v. Bolden, pp. 13-15); (D. Ct. Doc. Nos. 287, 289). Because the defendant in Warters admitted being involved in a drug conspiracy, he could not be heard to complain when the court departed upward based on his admitted guilt in the underlying drug conspiracy. Warters, 885 F.2d at 1272. The only factual dispute in Warters was the quantity of drugs involved. See id. Here, Mr. Bolden has denied and still does deny, ever being involved in a drug trafficking conspiracy, and no witness at the trial of Mr. Ghant and Mr. Nichols identified him as being involved in the conspiracy. (Tr. of Waiver of Indictment and Guilty Plea United States v. Bolden, pp. 13-15).

FN7. Mr. Bolden also objected to the "mastermind" statement in the

Presentence Investigation Report. (Tr. of Sentencing Hr'g United States v. Bolden, Vol. 2 pp. 33-39). The Presentence Investigation Report also stated that there were no factors warranting a departure from the calculated range of zero to six months. (Presentence Investigation Report, Pt. E. ¶ 55).

In Pigno, the Fifth Circuit affirmed the district court's upward departure based on the Warters holding that grounds for a departure in a case involving the misprision of a felony may exist where the defendant could have been found guilty for the underlying offense itself. Pigno, 922 F.2d at 1165. The same holds true for Godbolt.

Warters held that the range of information that may be considered at sentencing is broader than the range of information upon which the applicable sentencing range is determined. Warters, 885 F.2d at 1274 (citing United States Sentencing Guidelines §§ 1.18, 1.19). The Warters Court further held that under *46 Section 1B 1.4, the court could consider any information concerning the conduct of the defendant, unless otherwise prohibited by law. See id. (citing 18 U.S.C. § 3661). The Waters Court construed Section 1B1.4 to permit consideration of dismissed conduct as a basis for an upward departure. See id. (citing United States Sentencing Guidelines § 1B 1.4 cmt. for the proposition that, "...if the defendant committed two robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery that was not taken into account by the guidelines would provide a reason for sentencing at the top of the guideline range. In addition, information that does not enter into the determination of the applicable guideline sentencing range may be considered in determining whether and to what extent to depart from the guidelines."). This Court [FN8] rejected the Waters construction of Section 1B 1.4 in United States v. Harris, thus Waters and its progeny are inapposite.

FN8. Prior to the addition of Section 5K2.21 to the guidelines, the Fifth Circuit and this Court split on the question of whether dismissed charges could be considered as a basis for an upward departure. Compare United States v. Ashburn, 38 F.3d 803 (5th Cir. 1994) with United States v. Harris. 70 F.3d 1001 (8th Cir. 1995). The Ninth and Seventh Circuits also split with the Fifth Circuit on this question. United States v. Lawton. 193 F.3d 1087 (9th Cir. 1999); United States v. Ruffin, 997 F.2d 343 (7th Cir. 1993).

The district court held that Waiters stands for the proposition that a defendant's guilt of the underlying offense in a misprision case was not considered by the drafters of the guidelines. (Aug. 14, 2003 Mem. Op. & Order, p. 31). This is *47 not true. Waters was decided on September 29, 1989. Warters, 885 F.2d at 1266. Section 2X4.1, the misprision guideline, has been amended twice since Waiters was decided, once on November 1, 1989, and again on November 1, 1993. United States Sentencing Guidelines Manual § 2X4.1 Application Notes. The 1989 amendment clarified the "underlying offense" language in the guideline to mean the offense as to which the defendant is convicted of committing the misprision. See id. That language is an indication that the sentencing commission considered guilt of the underlying offense in formulating Section 2X4.1

III.

THE DISTRICT COURT CLEARLY ERRED WHEN IT DEPARTED UPWARD BASED ON ITS

UNHAPPINESS WITH THE FACT THAT MR. GHANT AND MR. NICHOLS TWICE REJECTED PLEA

AGREEMENTS, WENT TO TRIAL, WERE FOUND GUILTY, AND RECEIVED LONGER GUIDELINES

SENTENCES THAN MR. BOLDEN

Mr. Ghant and Mr. Nichols were offered plea bargains which they twice rejected and both were represented by attorneys the Court described as "superb." (Tr. of Sentencing Hr'g United States v. Nichols, pp. 3, 4, 7, 8); Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, pp. 28, 29). Had they accepted the plea offers, the disparity between their sentences and Mr. Bolden's would have been minimal and the district court would not have felt compelled to sentence Mr. Bolden above his guideline range in order to correct what the court subjectively felt was an inequity. The court took the sentencing disparity personally, stating,

*48 "I have two men that are in the penitentiary for ten years, one of them for ten years and the other one for more. Perhaps that was too much. But Congress set that, and the prosecution decided to go with them. It just doesn't square with me that the mastermind and someone involved, even if you take the $40,000 figure in the actual structuring, would get a zero to six sentence."

(Tr. of Resentencing Hr'g United States v. Bolden, p. 31).

It is settled law that dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guidelines range. United States Sentencing Guidelines Manual § 5K2.0, cmt; 18 U.S.C. § 3553(b) (2000). Throughout this case, the district court spoke on the record and to the press about its strong opposition to the guidelines and how the guidelines created a result in this case with which the court disagrees. (Tr. of Sentencing Hr'g United States v. Nichols, pp. 2-7); (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 1, pp. 13, 14); (Tr. of Sentencing Hr'g United States v. Ghant, Vol. 2, pp. 21-27, 50-63); (Aug. 14, 2003 Mem. Op. & Order, p. 24); Linda Satter, Judges In a Stew on Federal Sentences, Ark. Democrat-Gazette, Sept. 1, 2003, at 1A. The court's personal disagreement with the guidelines almost certainly animated its decision to disregard the guidelines in the first instance and to disregard them on remand.

The court, without citing any evidence, accused the government of treating Mr. Ghant and Mr. Nichols unfairly because they exercised their right to go to *49 trial. (Tr. of Sentencing Hr'g United States v. Nichols, pp. 6, 7); (Tr. of Sentencing Hr'g United States v. Ghant Vol. 2, p. 26). While feeling Mr. Ghant and Mr. Nichols got a raw deal for rejecting pleas and going to trial, the court felt no compunction in punishing Mr. Bolden for accepting a plea and not going to trial. That is ironic to say the least. Displeased with the result of the Ghant and Nichols trial, the court sought to punish Mr. Bolden to even things out. This is exactly the kind of sentencing practice Congress rejected when it passed the Sentencing Reform Act in 1984. United States v. Cammisano. 917 F.2d 1057, 1064 (8th Cir. 1990). Because the district court's upward departure decision was based on its personal feelings about the outcome of Mr. Ghant and Mr. Nichols' trial and not on this case having atypical features, this Court should vacate Mr. Bolden's sentence and remand this matter with instructions to the district court to sentence Mr. Bolden within his applicable guidelines range.

*50 CONCLUSION

This case produced three guidelines sentences and the district court rejected the applicable guidelines in all three instances, preferring instead to impose its view of what the sentences should be. The district court laments the fact that it no longer has the autonomy to impose the sentences it sees fit to impose. (Aug. 14, 2003 Mem. Op. & Order, p. 24). Other judges, lawyers, and commentators have expressed similar frustration with the guidelines. See e.g. United States v. Flores, 336 F.3d 760, 765-768 (8th Cir. 2003) (Bright, J., concurring); Mark H. Allenbaugh, The PROTECT Act's Sentencing Provisions, And the Attorney General's Controversial Memo: An Assault Against the Federal Courts, at http://writ.news.findlaw.com/allenbaugh/20030813.html (Aug. 13, 2003) (last visited Sept. 21, 2003). Judge Frank Easterbrook of the Seventh Circuit addressed and rebutted these arguments in United States v. Ruffin 997 F.2d 343 (7th Cir. 1993), where he stated:

"The district judge viewed an "appropriate" sentence as something defined by local practice and his personal views, and the Guidelines as an obstacle to be surmounted. Yet it is a principal function of the Sentencing Reform Act of 1984 to ensure that sentences for criminal defendants do not depend on local practices or whether the district judge used to be a prosecutor. No longer is there to be one sentencing regimen in Milwaukee, another in Phoenix, and a third in Seattle. Only the Guidelines identify the "appropriate" sentence.

*51 Many district judges do not accept the goal of uniformity that lies behind the Sentencing Guidelines. This is understandable. A project of reducing disparity requires some judges to give higher sentences than they used to, while other judges must reduce the penalties they impose. Both the judges told to increase their sentences and those told to cut them believe that something is amiss - they must think their old sentencing practices superior, or they would not have followed them. So the Guidelines are bound to leave many judges believing that they have been instructed to impose unjust sentences. Still, disagreement with the law does not justify undermining it. Congress instructed the judiciary to produce consistency; the Sentencing Reform Act is not a challenge to judicial ingenuity, but an exercise of Congress' constitutional power to make law. Judges spend their lives penalizing others who depart from legal norms. Judges are no less bound by the law than those who come before them as litigants."

The sentencing guidelines are certainly procrustean. They are, however, the law of the land and until such time as Congress repeals them or amends them in such a way as to restore the district courts' discretion with respect to sentencing, the district courts must show fidelity to the guidelines. In this case the district court did not, therefore this Court should vacate the sentence the district court imposed on Mr. Bolden and remand this matter with instructions to sentence him within his applicable guidelines range.