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United States v. Francois

decided: November 22, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
LEVELT FRANCOIS, DEFENDANT-APPELLANT



Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Chief District Judge. CR-88-51-A

Murnaghan, Sprouse, and Chapman, Circuit Judges.

Author: Chapman

CHAPMAN, Circuit Judge

In No. 88-5110, Levelt Francois has appealed the sentence imposed upon him after his conviction of possession with intent to distribute 750 grams of crack (Count 1) and possession with intent to distribute approximately 100 grams of a mixture and substance containing cocaine (Count 2). In 88-5110, he claims (1) that the Federal Sentencing Guidelines violate the due process clause of the Constitution, (2) that his sentence of incarceration without the possibility of parole for 15 years, 8 months constitutes cruel and unusual punishment when applied to a first-time offender for a narcotics possessory offense, (3) that the district court erred in holding that it had no authority to compel the government to move for an adjustment under § 5K1.1 of the Sentencing Guidelines, and (4) that the district court erred in refusing to grant him an adjustment under § 5K2.0 in view of his good faith effort to provide substantial assistance to the government.

In No. 89-7675, he challenges the constitutionality of new Federal Rule of Criminal Procedure 35(b) on due process grounds because it places total and unreviewable discretion in the prosecutor as to whether the district court may consider a defendant's subsequent cooperation and assistance to the government on a motion to reduce his sentence.

We find no merit in either appeal, and we affirm.

I.

On February 19, 1988, appellant was stopped as he deplaned at the Washington National Airport from a flight originating in West Palm Beach, Florida. He consented to a search of his garment bag and this search produced 750 grams of crack and approximately 100 grams of powder cocaine. He was arrested and a search incident to his arrest uncovered $500 in cash on his person. He went to trial and denied any knowledge of the possession of these drugs, but the jury found him guilty on each count.

Following his conviction appellant agreed to speak with and cooperate with federal law enforcement officials, but in these meetings he never admitted that he was involved in the offenses for which he was convicted. While maintaining his innocence, he claimed that he had information regarding drug dealers in Florida. Some information was provided to law enforcement agents, but this information proved to be unreliable. As a result, the government determined that appellant's post-trial assistance was not substantial and that his continued claims of innocence were unbelievable. The government refused to move for a departure from the guidelines under § 5K1.1.

The Sentencing Guideline range was determined to be level 36: 188-235 months. He received a sentence of the minimum provided by the guidelines for his offense level. At sentencing, he argued that his assistance required the government to move for a downward adjustment under § 5K1.1, but the court rejected this motion and found that the government could not be compelled to move for a downward departure and that there was no basis for such a downward departure on the present facts.

II.

There is no merit to the claim that the Sentencing Guidelines deny due process. Appellant relies upon United States v. Bolding, 683 F. Supp. 1003 (D.Md. En Banc 1988), but Bolding was appealed, and our court reversed the district court and found that the sentencing guidelines did not violate the Constitution. See United States v. Bolding, 876 F.2d 21 (4th Cir. 1989), and Mistretta v. United States,488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989).

III.

Appellant contends that his 188-month sentence is grossly disproportionate to the crime he committed and should be set aside as violative of the Eighth Amendment's protection from cruel and unusual punishment. The sentence was 188 months ...


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