Full opinion text
KENNEDY, Circuit Judge. This case requires us to decide the Sentencing Guidelines to be applied where the defendant negotiated and paid for a half kilogram of cocaine but actually received only 85 grams. We hold that the amount negotiated for should determine defendant’s sentence, and we AFFIRM the District Court. I. In November 1989, defendant agreed to purchase 500 grams of cocaine for $10,500 from an undercover FBI drug enforcement agent. The agent actually transferred to defendant a plastic bag weighing 1,070 grams which contained a small plastic bag of cocaine weighing 85 grams enclosed in a 985 gram mixture of plaster of Paris. Defendant was charged with and pleaded guilty to possession with intent to distribute an unspecified quantity of cocaine in violation of 21 U.S.C. § 841(a)(1). The District Court held hearings to determine whether defendant should be sentenced under the Guidelines for 85 grams, the amount defendant actually possessed, the 500 grams he attempted to buy, or 1,070 grams, the weight of the package including the plaster of Paris. The District Court adopted the recommendation of the presen-tence report and imposed a 51-month sentence based on a quantity of at least 500 grams adjusted for acceptance of responsibility. The issue presented on appeal was whether defendant should be sentenced only for the 85 grams of cocaine actually possessed. A panel of the Court (Merritt, C.J., and Jones, J. with Kennedy, J. concurring in part and dissenting in part) reversed. United States v. Davern, 937 F.2d 1041 (6th Cir.1991) (vacated). The majority held that courts should take a “flexible approach to the guidelines” by “consider[ing] the facts in light of qualitative standards [set forth in 18 U.S.C. § 3553(a)] designed to insure punishment ‘not greater than necessary.’ ” The majority stated that a court was not required to follow the Guidelines when “the parties present a legitimate aggravating or mitigating circumstance ... not adequately taken into consideration” by the Guidelines. In such cases, the majority held, the Guidelines are general principles to be considered “in light of the principles of sentencing outlined in § 3553(a).” On the narrow issue presented for review, the panel agreed that the weight of the plaster of Paris should not be included when calculating the base offense level. The majority determined that defendant’s sentence should be based on the 85 grams of cocaine he actually possessed. The majority found that the Guidelines are not clear on the question of how to consider a quantity of drugs a defendant attempted to purchase when in fact he actually possessed a lesser amount. The majority considered this situation one such “aggravating circumstance” to be weighed by a district court in sentencing. The panel’s opinion was vacated by a vote to rehear the case en banc. Following rehearing en banc, we AFFIRM the District Court. II. The government conceded in its rehearing en banc brief that the weight of the plaster of Paris was not to be considered, and therefore that issue is no longer before the Court. III. Defendant argues that a district court has the discretion to disregard the Guideline range in cases where the range is out of proportion to 18 U.S.C. § 3553(a)’s directive that a court “impose a sentence sufficient, but not greater than necessary to comply” with the purposes of sentencing. Defendant suggests that the district court may impose a sentence considering only the factors mentioned in 18 U.S.C. § 3553(a)(2). We disagree because we find that the Guidelines are a sentencing imperative. 18 U.S.C. § 3553(b) states: The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless 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. (Emphasis added.) Subsection (a)(4) provides that in determining the particular sentence to be imposed, the court shall consider the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(1) and that are in effect on the date the defendant is sentenced. Our conclusion that a Guideline sentence is mandatory and that departure is justified only as stated in section 3553(b) is supported by the Supreme Court’s statement in Burns v. United States, — U.S. —, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). There the Court stated: The only circumstance in which the district court can disregard the mechanical dictates of the Guidelines is when it 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-. 18 U.S.C. § 3553(b). Id. at -, 111 S.Ct. at 2184-85. We believe that a district court must first determine a Guideline sentence, and then must consider whether there is an “aggravating or mitigating circumstance,” that is, one not taken into account in setting the Guideline sentence. Until the judge has determined a sentence under the Guidelines, it seems impossible to determine whether the mitigating or aggravating circumstance had in fact been taken into account in promulgating those specific Guidelines. Defendant argues that the fact that he negotiated to purchase, although never possessed, 500 grams is a mitigating circumstance not considered by the Guidelines that the District Court should have taken into account. We disagree because we find that the Guidelines specifically provide for this situation. Section 2D1.1 is the Guideline section that sets forth the base offense levels for drug offenses. Application Note 12 to section 2D1.1 makes clear that the specific quantity of drugs mentioned in the indictment is not controlling. That note states: If the offense involved negotiation to traffic in a controlled substance, see Application Note 1 of the Commentary to § 2D1.4. If we turn then to Application Note 1, we find that it provides: If the defendant is convicted of an .offense involving negotiation to traffic in a controlled substance, the weight under negotiation in an uncompleted distribution shall be used to calculate the applicable amount. Although that note is located under a heading “Attempts and Conspiracies,” as the Fifth Circuit points out in United States v. Garcia, 889 F.2d 1454 (5th Cir. 1989), cert. denied, 494 U.S. 1088, 110 S.Ct. 1829, 108 L.Ed.2d 958 (1990), its application is not limited to attempts and conspiracies. The Fifth Circuit notes that section 2D1.1 specifically directs the sentencing court to note if, as in this case, the offense of conviction involves “negotiation to traffic.” In Garcia, the defendant was convicted of distributing eight ounces of cocaine. He had negotiated to sell sixteen ounces to a DEA agent, but ultimately delivered only eight ounces to the agent. The evidence showed that the defendant was capable of producing sixteen ounces. The court traced the Guidelines from Application Note 11 of § 2D1.1 to Application Note 1 of § 2D1.4, and held that the District Court appropriately had used the sixteen ounces to determine the offense level. ■ Returning to section 2D1.1, we find that Application Note 12 also permits us to analyze this case under the relevant conduct provision of the Guidelines. Application Note 12 states: Types and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See § 1B1.3(a)(2) (Relevant Conduct). Section 1B1.3(a)(2) requires a base offense level to be determined on the basis of “all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction” if the offenses are “of a character for which section 3D1.2(d) would require grouping of multiple counts.” Section 3D1.2(d) requires grouping of drug offenses. The law in this Circuit is clear that a base offense level is determined by the amount of drugs included in the defendant’s relevant conduct, not just amounts in the offense of conviction or charged in the indictment. See e.g., United States v. Ykema, 887 F.2d 697 (6th Cir.1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990); United States v. Smith, 887 F.2d 104 (6th Cir.1989); United States v. Sailes, 872 F.2d 735 (6th Cir.1989); United States v. Perez, 871 F.2d 45 (6th Cir.), cert. denied, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989). The defendant argues that the relevant conduct provision is ambiguous and does not indicate that conceptually distinct crimes should be combined. The defendant argues that section 1B1.3 does not specifically state that unconvicted conspiracy or distribution offenses should be joined with a possession offense. We believe that section 1B1.3 does permit an unconvicted attempt or conspiracy to be considered as relevant conduct to a possession offense because section lB1.3(a)(2) expressly states that the entire course of conduct, common scheme or plan shall be considered. The fact that attempts and conspiracies are inchoate crimes and therefore “not of the same character” as a substantive possession offense is immaterial so long as the conduct was part of the same course of conduct, common scheme or plan. Defendant’s attempt to purchase 500 grams of cocaine was clearly part of the same course of conduct or common scheme or plan as defendant’s possession of the cocaine actually delivered to him. In United States v. White, 888 F.2d 490 (7th Cir.1989), the Seventh Circuit considered a case very similar to the instant ease. Customs officials intercepted two packages addressed to the defendant and found that each contained hollowed-out magazines filled with cocaine base. They turned the packages over to the DEA, which removed 300 grams of the cocaine base, left 1.88 grams in one of the packages, and added sugar to make up the bulk. They delivered one package to defendant's post office box, and arrested him later in the day after he had picked up the package. The district court sentenced defendant based on the 1.88 grams he actually possessed. The Seventh Circuit reversed. The court held that because section 1B1.3(a)(2) calls for inclusion of all amounts that were part of the same course of conduct, the entire amount of cocaine base should have been considered in finding the base offense level. The court found that the defendant’s course of conduct was receiving the packages of cocaine base. It was merely fortuitous that the defendant received only 1.88 grams. Had the package slipped through customs or had the DEA not removed most of the drug, the entire amount would have arrived. The court found that “[t]he nature and seriousness of White’s conduct is the same no matter how much of the cocaine the DEA took out.” The court held that the defendant’s sentence must be based on the total amount in the packages when they entered the country. The court further noted that although the defendant did not succeed in possessing 302 grams, that amount must be included because section 2D1.4(a) requires that the offense level for an attempt to commit a drug offense is the same as if the object of the attempt had been completed. The court noted that it is irrelevant that defendant was not convicted of attempt because “[t]he Guidelines treat success and failure, conviction and no conviction, alike in drug cases, so long as the amounts are ascertainable.” Id. at 499. We agree with the logic of the Seventh Circuit. The seriousness of defendant’s unlawful conduct is neither increased nor decreased by what happened to be in the package. Here, it is simply fortuitous that defendant actually possessed only 85 grams of cocaine rather than the 500 grams he sought and believed he had purchased. IV. Accordingly, we AFFIRM the defendant’s sentence. . Under the Guidelines, the base offense level for an amount of cocaine less than 100 grams is 16 with a range of 21-27 months. For an amount of cocaine between 500 grams and 2 kilograms, the base offense level is 26 with a range of 63-78 months. U.S.S.G. § 2Dl.l(c). . We note that the Supreme Court in Chapman v. United States, — U.S. —, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), stated that weights of containers and packaging materials are not included in calculating a sentence because these items are "not mixed or otherwise combined with the drug.” Id. at —, 111 S.Ct. at 1926. . The remaining language of section 3553(b) provides: In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission. . At the time Garcia was decided, Application Note 11 contained the same language as Application Note 12 does today. The Guidelines were amended on November 1, 1989 and the relevant language was moved to Application Note 12. . For offenses after November 1, 1991, it is clear that offenses proscribed by different statutory provisions may be grouped under section 3D 1.2 and that an uncharged attempted possession would be grouped with a possession conviction. See U.S.S.G. § 1B1.3, comment, (n. 2). This new commentary, however, is not controlling in the instant case because it was not in effect on the date defendant was sentenced. 18 U.S.C. § 3553(a)(5). . The dissent argues that the relevant conduct provisions of the Guidelines are not authorized by the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq. and 28 U.S.C. §§ 991-98, and specifically that they violate the language of 28 U.S.C. § 994(1). We disagree with both propositions. We note first that the issues discussed by the dissent were not raised by defendant. Amicus curiae does argue that the Sentencing Commission has misinterpreted its enabling legislation, so we respond briefly. Section 994(c)(2) authorizes the Sentencing Commission to consider "the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense.” The Guidelines accomplish this through the relevant conduct provisions. Certainly the circumstances of defendant’s offense include the fact that defendant negotiated to purchase 500 grams of cocaine. It is through section IB 1.3 that these circumstances are taken into consideration in determining defendant's sentence. Further, we read 28 U.S.C. § 994(1) to apply to the appropriateness of penalties only in cases of multiple convictions. If section 994(1) is limited to multiple convictions it is simply inapplicable to relevant conduct considerations. There is nothing in this section that forecloses taking relevant conduct into account as to each conviction. The dissent’s second issue is that the relevant conduct provisions violate due process because a defendant, when he pleads guilty, has no notice of the extent to which his sentence may be enhanced by additional criminal conduct for which he is not charged. The essence of this argument is that a defendant who is not told that his prior related conduct may be used to enhance his present sentence, or who cannot determine how much it will be enhanced, has not made his plea knowingly and voluntarily. In this case defendant has not sought to set aside his guilty plea and thus has not challenged the voluntariness of his plea. The issue is not before us. The balance of the dissent argues that prosecutors have too much discretion in determining what relevant conduct will be presented to the court for consideration in sentencing a defendant. There are no allegations that prosecutors have been inventing relevant conduct where none exists. The only discretion prosecutors may have is to fail to reveal relevant conduct to the probation officer. Although this may be a concern, it seems closely related to the discretion given to prosecutors generally to determine which offenses they will charge. There can be no claim in this case that the prosecutor deceived the court with regard to relevant conduct. This general policy concern seems best left to a case where it has some implication, or to the legislative branch.
DAVID A. NELSON, Circuit Judge, concurring. I share some of the dissenters’ reservations about the wisdom of the current sentencing guideline system, but I concur in the judgment of the court and in Judge Kennedy’s opinion. Unlike the dissenters, I do not believe that the Sentencing Commission violated any statutory or constitutional limitation in prescribing the sentencing range normally applicable to cases such as the one before us here. Neither do I believe that defendant Davern’s rights were violated by the application of the sentencing guidelines to him. The importance of the issues presented prompts me to explain the reasons for my conclusions in some detail. I Congress has made it a crime for any person knowingly or intentionally to possess cocaine with intent to distribute it. 21 U.S.C. § 841(a)(1). Any person who violates § 841(a) in the way defendant Davern did, Congress has declared, “shall be sentenced to a term of imprisonment of not more than 20 years.” 21 U.S.C. § 841(b)(1)(C). There can be no doubt at all as to the intent of Congress with respect to the maximum sentence for Mr. Davern’s crime: Congress intended a sentence of up to 20 years. Mr. Davern was well aware of the 20-year maximum sentence when he entered his plea of guilty: “THE COURT: Do you know what the maximum penalties required by law are in relation to this case, sir? THE DEFENDANT: Yeah. THE COURT: Tell me. THE DEFENDANT: Zero to 20 years and a million dollars fine. THE COURT: 20 years and a million dollar fine. Three years supervised release. [ASST. U.S. ATT’Y.]: Correct, your Honor. THE COURT: And an assessment of $50. Do you understand all of those matters? THE DEFENDANT: Yes. THE COURT: Does the fact, that you know that change your mind in any manner about entering a plea of guilty here today? THE DEFENDANT: No.” In addition to setting a 20-year maximum sentence, Congress has provided in some situations for minimum sentences as well. In the case of a violation of 21 U.S.C. § 841(a) involving 500 grams or more of a mixture containing a detectable amount of cocaine, for example, Congress has said that the defendant “shall be sentenced to a term of imprisonment which may not be less than 5 years_” 21 U.S.C. § 841(b)(l)(B)(ii)(II). The Assistant United States Attorney who prepared the indictment for the grand jury in this case was concerned that the sentencing court might have no choice but to impose a mandatory minimum sentence of imprisonment for 5 years. In drafting the indictment, therefore, she omitted any reference to the quantity of cocaine involved. The indictment charged simply that "JOHN P. DAVERN did knowingly, intentionally, and unlawfully possess with intent to distribute a mixture and substance containing a detectable amount of cocaine, a Schedule II narcotic drug controlled substance; in violation of Title 21, Section 841(a)(1), United States Code.” The record is clear that the indictment was deliberately drafted this way for defendant Davern’s benefit. As the Assistant U.S. Attorney explained in open court, “I could have, and we normally would have, written that which would have given him a mandatory minimum five years and that was expressly drafted for the benefit of the defendant so that he could get credit for the minus two of acceptance of responsibility under the guideline and get under the mandatory statutory 60 months.” It is doubtless true that “there are many ‘games to be played’ ” in indicting defendants and in plea bargaining, United States v. Harrington, 947 F.2d 956, 964 (D.C.Cir.1991) (Edwards, J., concurring), but the case at bar happens to be one in which the game-playing was intended to work to the defendant’s advantage. And it did work to his advantage, of course; Mr. Davern was sentenced not to 5 years, but to a little over 4 years. The attempt by the United States Attorney’s office to circumvent a possible mandatory minimum 5-year sentence did not offend the trial judge, and it does not offend me. Prosecutors have always enjoyed a wide measure of discretion under our system — they do not have to seek indictments at all, for example, if they see some legitimate reason for not prosecuting — and I do not believe there was any abuse of discretion in this case. The dissenters note that defendant Davern’s education, lack of a prior criminal record, and strong ties to a good family and to the community make Mr. Davern somewhat atypical as defen-' dants go, and it is only natural for prosecutors and judges to want to do what was evidently done here — i.e., take such factors into account. Under the guidelines, nonetheless, the extent to which a defendant’s personal characteristics can warrant special consideration by the courts is rather circumscribed. Congress clearly intended this. The statutory penalties apply to “any person” who violates 21 U.S.C. § 841(a). Young or old, college-educated or illiterate, white or non-white, from a good family or no family, “any” person who does what John Davern did faces a maximum sentence of 20 years. And he faces that sentence regardless of whether he happens to have enjoyed Mr. Davern’s advantages in life. In the statute establishing guideline sentencing, Congress directed the Sentencing Commission to “assure that the guidelines and policy statements are entirely neutral as to the race, sex,, national origin, creed and socioeconomic status of offenders.” 28 U.S.C. § 994(d). The Commission, as far as I can tell, has faithfully followed this Congressional directive. Congress also directed the Commission to consider whether certain factors listed in the statute have any relevance to the nature and extent of an appropriate sentence. 28 U.S.C. § 994(d)(1) through (11). Among the factors listed are “age,” “education,” “physical condition, including drug dependence,” “family ties and responsibilities,” and “community ties.” To the extent that the-Commission finds that one or more of these factors have any relevance at all, Congress directed the Commission to “take them into account only to the extent that they do have relevance_” The Commission has considered the things that Congress told it to consider and has exercised its informed judgment on these matters. With respect to age, education, family ties and responsibilities and community ties, the Commission has concluded that the factors are “not ordinarily relevant in determining whether a sentence should be outside the guidelines....” U.S.S.G. §§ 5H1.1, 5H1.2, 5H1.6. With respect to drug dependency and alcohol abuse, the Commission is more emphatic: “Drug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines. Substance abuse is highly correlated to an increased pro-, pensity to commit crime.” § 5H1.4. I fully agree with the dissenters that it is important, in this case, to understand not only the exact nature of Mr. Davern’s crime, but something about him as an individual. The nature of the crime is relatively easy: Mr. Davern paid $10,500 that he claimed to have saved from his unemployment benefits for what he thought was half a kilogram of cocaine. He told the undercover agent from whom he made the purchase that “he was going to sell the cocaine in one ounce portions and that he intended to ‘cut it’ except for that cocaine he would sell to close friends.” He told the sentencing judge, on the other hand, that he planned to use some of the cocaine himself, selling the rest to a “[f]ew friends, just to support my habit.” It is undisputed that Mr. Davern intended to distribute at least part of the cocaine to others. It is also undisputed that Mr. Davern was still addicted to cocaine at the time of his arrest. Mr. Davern told the sentencing judge that the undercover agent had “enticed” him into buying more than he would have bought ordinarily by offering “this great bargain price.” The judge — who has probably seen enough of these cases to have a pretty good idea of the going price for cocaine in Northeastern Ohio — obviously did not accept this part of Davern’s story as true. If he had believed it, the judge could have used the government's offer of a “bargain price” as a basis for a downward departure — i.e,, a sentence below the 51-month floor of the guideline range. But the judge could not depart downward on the basis of a representation that was not true. Neither could the judge depart downward on the basis of Mr. Davern’s being a 25-year-old college student, or because Mr. Davern was a member of a large, closely-knit family, or because he had strong ties to the community. Factors such as these may be weighed by the sentencing judge in deciding what sentence to impose within the guideline range — 51 months as opposed to 63 months, e.g. — but the Sentencing Commission, discharging a responsibility vested in it by Congress, has decided that such factors may not ordinarily be used to justify a sentence below the guideline range. If the government did not in fact entice Mr. Davern into contracting to buy half a kilogram by offering him a bargain price, therefore, the guidelines dictate a minimum sentence of 51 months. I am certainly not prepared to say that a 51-month sentence — less than one-fourth the statutory maximum of 240 months — is out of proportion to Mr. Davern’s crime. II Inviting our attention to the statutory construction argument advanced in the original panel opinion, reported at 937 F.2d 1041, the dissenters suggest that the en banc court has disregarded the mandate of 18 U.S.C. § 3553(a). Paragraph 2 of that section of the statute requires a sentencing court to impose a sentence sufficient to, among other things, reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, and protect the public from further crimes of the defendant. At the same time, however, the sentence is “not [to be] greater than necessary ... to comply with [these] purposes.... ” Id. As Judge Kennedy demonstrated very effectively in her dissent from the original panel opinion, § 3553(a) does not stand alone. It must be read in conjunction with § 3553(b), which makes it mandatory that the court impose a sentence within the range established under the guidelines “unless the court determines 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 guide-lines_” See 937 F.2d at 1051 et seq. Many federal district judges would probably prefer to be able to decide for themselves what sentence would be sufficient, in a particular case, to comply with the purposes of § 3553(a)(2). Congress, however, has seen fit to delegate to the Sentencing Commission responsibility for determining what range of sentences will comply with the statutory purposes for various types of offense and various types of defendant. The Supreme Court has upheld the constitutionality of this delegation. Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Although a sentencing court must doubtless consider the elements of § 3553(a) in deciding what particular sentence to impose within a given guideline range, therefore, the court is not free to second-guess the Commission on what the range ought to be. Perhaps, in time, Congress will heed the urging of the New York Bar Association and others to adopt amendments transforming the guidelines from “compulsory prescriptions” to “general standards.” Unless and until Congress acts, however, it is obvious that we must live with the law now on the books. Expanding on an argument that was put forth somewhat tentatively in the original panel opinion (“[b]y using the word ‘convicted,’ Congress may well have intended to prevent the Commission from ordering judges to sentence for unconvicted crimes for which the defendant has not received notice in the indictment and an opportunity to defend in the traditional way,” 937 F.2d at 1051), the dissenters now insist categorically that “[t]he statute does not authorize incremental penalties when a defendant is convicted only of a single offense during a time period in which he may also have committed other offenses if he is not charged and convicted for those offenses.” With respect, I must say that I do not find this argument persuasive. In the first place, I do not believe that Mr. Davern was subjected to an “incremental penalty” for offenses of which he was not convicted. He was convicted of possessing a controlled substance (cocaine) with intent to distribute it, and that is all he is being punished for. Using a formula that may be convoluted but that certainly is not ambiguous, the Sentencing Commission has made the range of permissible sentences that may be imposed within the 20-year statutory cap a function of the amount of cocaine the defendant intended to possess. This is clearly not beyond the Commission’s power, and I do not understand why a sentence within the prescribed range should be thought to represent an incremental penalty for some offense other than possession with intent to distribute. In the second place, 28 U.S.C. § 994(Z)(1)(A) appears to have been designed to guard against the Commission’s establishing too low a sentence range for situations where a defendant has been convicted of multiple offenses. It was not designed to impose an upper limit, and I see no reason to suppose that this section was intended to prevent the Commission from ordering judges to take into account unconvicted offenses, committed in the same course of conduct as the offense of conviction, when determining the sentence range for the crime with which the defendant was charged and of which he was found guilty. III The dominant theme of Part III of Judge Merritt’s dissent — a theme echoed elsewhere as well — is that because Mr. Davern did not have adequate notice of the charges and the prospective sentence, it was unfair and unconstitutional to measure his sentence by the quantity of cocaine he intended to purchase. But Mr. Davern had been fully advised how the sentencing guidelines would operate in his case and what the government contended his minimum guideline sentence should be. If ever a defendant entered a guilty plea with his eyes wide open, that defendant was John Da-vern. The record of Mr. Davern’s plea hearing shows that this defendant was hardly the sort of uninformed, friendless, and uncoun-seled individual sometimes encountered in criminal proceedings. Mr. Davern had a very supportive sister who happened to be a probation officer, and he was represented by two prominent and experienced criminal lawyers. These lawyers, as Mr. Davern testified, had gone over the features of the federal guideline sentencing system with him, and Davern has never contended that he was unaware of how the guidelines might be applied to him. Any such contention would be precluded by the record of the plea hearing. That record shows that Mr. Davern was in court when the Assistant U.S. Attorney told the judge that the low end of the guideline range, as computed by the government, would be a sentence of 51 months. Mr. Davern also heard the Assistant U.S. Attorney state that under the plea agreement she had negotiated with defense counsel, the government would agree that the appropriate sentence was the 51 months at the bottom of the guideline range. Addressing Mr. Davern directly, the trial judge told him that the government was “indicating to me that they will recommend to the Court at the time of sentencing that the Court sentence at the bottom of the guideline range. Do I make that clear to you? THE DEFENDANT: Yes. THE COURT: The range here is what? [ASS’T. U.S. ATT’Y.]: 51 to 63 months. THE COURT: 51 to 63. They’re going to recommend 51. Do you understand that? THE DEFENDANT: Yes.” And there is more. Prior to the court’s acceptance of the plea, one of Mr. Davern’s lawyers stated on the record that notwithstanding the plea agreement, “the defendant certainly in no way stipulates that the guideline range should in fact be 51 to 64(sic) months.” Again addressing Mr. Da-vern directly, the judge explained to him that his attorneys, meeting with the court and the prosecutor in chambers, had raised a question as to what quantity of cocaine should be used in determining the part of the guideline grid to which the court should look in determining the sentence. The judge went on to explain to Mr. Davern that there would be a hearing on this matter, following which the court would make a determination. The judge explicitly informed Mr. Davern that he should not assume that his attorneys’ argument would be accepted: “Now, it may be that I will say that they’re wrong. It may be that I’ll say that they’re right. That is an appealable issue by you to the Circuit Court.” The judge then asked Mr. Davern if this was satisfactory to him. Mr. Davern responded “Yes.” It was only after all this that the judge asked Mr. Davern how he pleaded to the indictment and Mr. Davern responded “Guilty.” It is self-evident, I should have thought, that this record bespeaks no violation of Mr. Davern’s rights under the Due Process Clause. In some other case, with some other defendant, we may find a trial court accepting a guilty plea under circumstances which, because of the defendant’s unfamiliarity with the guidelines, could arguably create a problem of constitutional magnitude. Surely, however, that possibility cannot justify our treating the guidelines as unconstitutional in their application to John Davern, a defendant whose constitutional rights have been scrupulously honored. . Chapman v. United States, 500 U.S. -, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), suggested that the weights of containers and packaging materials should generally not be included in the weight of a mixture or substance containing an illicit drug, "because those items are ... clearly not mixed or otherwise combined with the drug.” 500 U.S. at -, 111 S.Ct. at 1926, 114 L.Ed.2d at 536. Chapman was not decided, however, until more than a year after Mr. Da-vern was indicted. . Although Mr. Davern was a first offender, as pointed out in the text accompanying footnote 7 of Chief Judge Merritt's dissent, the statutory provision to which the footnote refers in this connection, 28 U.S.C. § 994(j), does not suggest that prison sentences are inappropriate for first offenders who commit crimes of the sort to which Mr. Davern pleaded guilty. Section 994(j) directs the Sentencing Commission to "insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense. ..." (Emphasis supplied.) The crime of which Mr. Davern has been convicted is one that Congress obviously considers a very serious offense indeed. . My own view, if anyone should think it material, is that drug dependence or alcohol abuse ought not be treated as a reason for imposing a sentence below the guideline range, but that other personal offender characteristics — including successful efforts to-overcome chemical dependency — might well have been taken into account by the Sentencing Commission to a greater extent. Two years ago, in response to a call from the Commission’s Chairman for comments on areas of the guidelines that might be improved, I urged the Commission "to re-examine the policy of ignoring characteristics that could be indicative of the likelihood that a particular defendant will engage in future criminal behavior.” And demonstrating that I am no less capable than the next judge of overlooking relevant statutory text — see the last sentence of 28 U.S.C. § 994(d) — my letter to the Commission continued as follows: “To illustrate the sort of thing that concerns me, suppose that a judge is called upon to sentence a woman of mature years who has strong family ties and responsibilities and whose offense seems to have been a one-shot affair. I should have thought, in such a case, that it would be appropriate for the sentencing judge to consider the defendant's age, sex, and family situation in deciding whether to depart from the guideline range.” I think Congress was wrong in demanding that the guidelines be entirely neutral as to the sex of the offender. I think the Sentencing Commission was wrong in not according more relevance to the factors that Congress, in 28 U.S.C. §-994(d), told the Commission to consider. But I do not think my personal views give me a veto power over Congressional legislation, or entitle me to second-guess the Sentencing Commission on matters that Congress has clearly committed to the Commission’s discretion. It is apparently Judge Merritt’s view (see pages 1502-03 of his dissent) that if a court disagrees with the extent to which the Sentencing Commission has taken the § 994(d) characteristics into account, the court should feel free to substitute its judgment for the Commission’s. Why does Judge Merritt believe that a court has such power? The guidelines are not a statute, of course, but the Sentencing Reform Act is— and what the Act says is that “[t]he Commission” shall consider whether the matters listed in 28 U.S.C. § 994(d) have any relevance. Having considered them, the Act says, the Commission shall take them into account only to the extent that they do have relevance. This court is not the Commission, and Congress has not authorized us to act as if we were. . There are more than 17 one ounce portions in half a kilogram, so Mr. Davern could conceivably have intended to put cocaine in the hands of up to 17 or more different people. . In discharging its responsibility, the Commission has been told to "establish a sentencing range that is consistent with all pertinent provisions of Title 18, United States Code.” 28 U.S.C. § 994(b)(1) (emphasis supplied.) . Among the pertinent provisions of Title 18, of course, is 18 U.S.C. § 3553(a)(2). . The relevant portion of 28 U.S.C. § 994(/) reads as follows: "The Commission shall insure that the guidelines promulgated pursuant to subsection (a)(1) reflect— (1) the appropriateness of imposing an incremental penalty for each offense in a case in which a defendant is convicted of— (A) multiple offenses committed in the same course of conduct that result in .the exercise of ancillary jurisdiction over one or more of the offenses.... ” 28 U.S.C. § 994(/)(l)(A).
MERRITT, Chief Judge, dissenting. Our court treats the U.S. Sentencing Guidelines as the equivalent of a statute instead of the questionable rules of an administrative agency which has ignored many of the provisions of its governing statute. The Court holds that the “relevant conduct” provisions of the Guidelines are absolute sentencing “imperatives” to be applied automatically without deviation and that they treat “success and failure [in criminal activity], conviction and no conviction alike.” Although the Sentencing Commission and its chairman consistently refer to these “relevant conduct” provisions as the “cornerstone of the federal sentencing guidelines,” the Sentencing Reform Act of 1984, the Act which authorized the Guidelines, does not expressly mention or authorize any such provisions. As I shall try to make clear below, I do not believe that Congress authorized the type of “relevant conduct” provisions adopted by the Commission and sweepingly applied by our Court here; ’and I further believe that these provisions have led to a system of criminal sentencing in the federal courts that offends due process and other constitutional provisions. Our Court’s sweeping interpretation of § IB 1.3 of the Guidelines respecting the so-called “relevant conduct” enhancement-of-sentence and upward adjustments provisions violates, in my opinion, the unambiguous language of key sections of the Sentencing Reform Act of 1984, 28 U.S.C. § 994(d), and 18 U.S.C. § 3553(a), ’and the Due Process Clause of the Fifth Amendment. The willingness of the Court, as legal realists, to recognize and state truthfully what is in fact happening in the administration of the Guidelines is commendable. Its unwillingness to confine the Sentencing Commission within applicable statutory and constitutional limitations is unfortunate because of the grave injustices it allows and because it severely undermines the role of the federal courts in protecting the rights of the accused. I. Davern was a college student addicted to drugs and alcohol. After being caught in a drug sting, he pled guilty to possession of cocaine. Because of the Guidelines, he is being treated as a major drug dealer. Instead of receiving a sentence of one year and 3 months for 85 grams of cocaine, the amount he possessed, his sentence was automatically increased to 4 years and 3 months for negotiating to purchase 500 grams, conduct for which he was not convicted. The facts surrounding his arrest and conviction illustrate with clarity the unjust and ultimately indefensible system effectuated by the application of the Sentencing Guidelines. The majority provides a cursory rendition of the facts. It is impossible, however, to assess fairly Davern’s claims without first examining what took place; what exactly Davern did wrong; and something about him as an individual. A more thorough recitation is in order. On November 27, 1989, Davern met an undercover FBI agent in a Cleveland, Ohio, parking lot and negotiated to purchase one-half kilogram of cocaine. The record contains no evidence pertaining to the manner in which Davern and the agent got together initially. They agreed on a price of $10,500 for the cocaine and arranged to complete the transaction on November 30, 1989, at a local convenience store. Davern met the agent as planned, gave him the cash, and received in return a package containing 985 grams of plaster of paris. Embedded inside the plaster was a separate small packet of cocaine weighing about 85 grams. Davern assumed that the package was what the agent said it to be and thus did not examine the substance to ensure that it was cocaine. Instead, he placed the package in his knapsack and exited the agent’s vehicle where the men had made the exchange. He was arrested immediately thereafter by special agents of the FBI. Prior to this arrest, Davern had no record of criminal activity. He was a first offender. He attended Cleveland State University and in two quarters would have completed his degree in business management. He was a member of a large, close-knit family with strong ties to the community. The record contains no evidence to suggest that he had ever been involved in dealing drugs before this occasion. He did not obtain the funds used to purchase the cocaine unlawfully. As District Court Judge Sam Bell noted when contemplating Davern’s sentence, Davern’s record prior to this anomalous occurrence was exemplary. Unfortunately, however, while Davern outwardly appeared to be leading a successful and productive life, privately he was abusing drugs and alcohol. He admittedly entered into the drug transaction with the intent of using some of the cocaine himself and selling the rest to support his drug habit. Davern had demonstrated a personal commitment to overcoming his addiction. He had enrolled in Alcoholics Anonymous only weeks before his arrest. Although he had not yet overcome his substance abuse, he importantly had admitted that he had a problem. Ironically, as noted by his sister, were it not for the long term of imprisonment, Davern’s arrest could have benefit-ted him in the long run by making him come to terms more quickly with his drug and alcohol abuse. By the time he entered a guilty plea, Davern was attending five meetings of A.A. each week and was effectively free from drugs and alcohol. At all times between his arrest and conviction, Davern displayed remorse for his criminal conduct and an acceptance of personal responsibility. He received strong support from his family and friends for which he expressed gratitude. Both the prosecution and the Court noted that the circumstances surrounding the case were atypical. It is apparently the view of Judge Nelson in his concurring opinion that the Sentencing Commission is correct that these personal offender characteristics should not be taken into account. This view is completely inconsistent with 18 U.S.C. § 3553(a)(1) that the sentencing courts “shall consider ... the history and characteristics of the defendant,” and impose a sentence “not greater than necessary” and 28 U.S.C. § 994(d) in which Congress enumerates a specific list of factors that the Commission should consider with respect to a defendant’s sentence. Why does Judge Nelson believe a court may not depart downward on the basis of such characteristics which the Commission concededly did not take into account and which the Sentencing Reform Act says the court “shall consider?” The Guidelines are not a statute, and they do not excuse a sentencing court from doing its duty under the statute, no matter what the Sentencing Commission says. Contrary to Judge Nelson’s belief, the fact that the Commission has abdicated its duty to consider the “purposes” of sentencing and the personal characteristics of defendants does not authorize a court to abdicate its duty to impose a sentence “not greater than necessary” under § 3553(a). The Court abdicates its duty when, as here, it permits the Commission to pick and choose which directives it will honor and which it will disregard. By accepting wholesale the Commission’s interpretation of the enabling act, the Court allows the Commission to construe congressional directives to perpetuate its own will rather than the expressed will of Congress. The Commission has simply ignored many of the provisions of the statute that weigh in favor of leniency and has adopted rigidly severe “relevant conduct” provisions which Congress did not authorize. It is true, as Judge Nelson points out, that Congress directed the Sentencing Commission to “assure that the [Guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed and socioeconomic status of offenders.” 28 U.S.C. § 994(d). In the same section along with this general nondiscrimination provision, however, Congress explie-itly instructed the Commission to consider the age, education, physical condition including drug dependence, family ties and responsibilities, and community ties of a defendant. 28 U.S.C. § 994(d)(1)-(11). These characteristics have traditionally weighed in favor of leniency in sentencing. The enabling act did nothing to change that time-honored tradition. It is these factors that I emphasize today with respect to Da-vern. Judge Nelson dismisses any reliance on § 994(d) by pointing out that the Commission stated that it did consider the listed factors and determined that they are not ordinarily relevant. ■ The Commission singled out drug dependence in particular as never being a justification for a downward departure. The Commission’s wholesale and formulaic dismissal of the factors is unsatisfactory. If we simply accept as sufficient the Commission’s statements of compliance, we abdicate our responsibility to look at substance over form. The language of § 994(d) indicates that Congress intended that the Commission consider the listed factors to the extent that they are relevant “with respect to a defendant." (emphasis added.) This language suggests a much more individualized consideration of the factors than offered by the Commission. The Commission has made no attempt to incorporate the factors into the Guidelines at all, much less develop a meaningful system for determining whether such considerations should warrant a lighter sentence in the case of an individual defendant. The problem of disregarding these factors is evident in cases involving reformed drug addicts, even those addicts that did not enjoy John Da-vern’s privileges. In United States v. Floyd, 738 F.Supp. 1256 (D.Minn.1990), for example, the Court departed downward from the Guidelines sentence because in the Guidelines the Commission did not adequately consider the case of an individual that successfully overcame an addiction. The defendant in that case was a crack addict and single mother of four young children. It is unlikely that Judge Nelson would characterize her as “privileged.” The Court justified its downward departure for reasons similar to those I propose here: [Sjpecial, mitigating circumstances exist in this case. There has been substantial and demonstrable post-crime rehabilitation by the defendant. The rehabilitation is of a kind and nature which has not been adequately taken into consideration by the Sentencing Commission. As a result, the [Guidelines overstate the severity of defendant’s offense conduct. Id. at 1259. It was the opinion of the prosecutor and apparently the majority of this Court as well, that the Guidelines adequately took into account all of the circumstances relevant to Davern’s crime and punishment and, by dictating a 51 month period of imprisonment, correctly reflected the will of Congress and the Sentencing Commission. Furthermore, the majority appears to believe that Davern’s punishment is not out of proportion to his crime. In its opinion, the majority rejects Da-vern’s argument that the District Court has discretion to reduce the Guideline range if the range is disproportionate to Congress’s directive in 18 U.S.C. § 3553(a). That Directive, worded in mandatory language, states that a court “shall impose a sentence sufficient, but not greater than necessary to comply” with the purposes of sentencing. The majority, like the Sentencing Commission, totally disregards the “purposes” of sentencing in § 3553(a) of the enabling act. It holds instead that the District Court has no such discretion, stating in an oxymoronic phrase, that the “relevant conduct” provisions of the “Guidelines are a sentencing imperative.” (emphasis added). It treats the Guidelines as if they were the statute itself. The majority’s interpretation regretfully has become the almost universally accepted view of the Guidelines. Observing this trend, the New York Bar Association’s Committee on the Federal Courts and practically every other commentator have urged Congress to overrule the Sentencing Commission and transform the Guidelines from compulsory prescriptions to general standards. The Committee has stated: Broad goals of deterrence should never take precedence over doing justice to the individual in the dock; yet many judges feel they are forced to treat the defendants they are called upon to sentence in a dehumanized fashion, artificially ignoring entire chapters of their personal histories. The Committee on Federal Courts, New York Bar Ass’n, Transforming the Sentencing “Guidelines” into (Just) Guidelines: Comments on the Federal Courts Study Committee Proposal, The Record 675 (1992). Judge Bell, the sentencing judge in this case, was troubled by the constraint he felt under the Guidelines to disregard much of Davern’s personal history. Reflecting on his decision to adopt the recommendation of the probation officer in the presentenc-ing report, Judge Bell expressed his discomfort with the Guideline sentence. He stated: One is tempted in a case like this in all candor to rule in another way because one is tempted to be result oriented. Courts, I think, should not rule on that basis, and this Court will not do so in this case. It’s an unusual circumstance that brings a man like this defendant to this Court without a criminal history and with the support of so many of his fellow citizens and his family in this case. Sentence Hearing, Case No. l:89CRO380, slip op. at 13 (N.D.Ohio July 11, 1990). The problem with eliminating the attention courts have traditionally paid to personal characteristics of the defendant, and should continue to pay under § 3553(a), is one seen here and in many cases that come before this Court. In turning away from personal considerations that may or may not suggest an appropriate sentence, we turn to ostensibly objective measures to calculate a particular defendant’s culpability. But these measures are clearly flawed, for the government in many cases creates the objective facts. Although Davern pled guilty only to possession of cocaine and possessed only 85 grams of cocaine, the majority today affirms the District Court’s sentence for his attempt to purchase 500 grams of cocaine. Two propositions come to mind when reviewing these facts: (1) Davern might not have pled guilty to possession had he suspected that the Court would calculate his sentence as if his attempt to possess 500 grams of cocaine had been successful; and (2) Davern might not have attempted to purchase such a large quantity of cocaine had he been dealing with a less accommodating seller. When asked why he wanted to purchase so much cocaine, Davern explained to the judge that he would not usually purchase so much, but that the price was a bargain. Had the agents not made the price so appealing, Davern as an addict might have bought less. The less he bought, the lower his sentence range would be under the Guidelines. This supposed objectivity cannot fairly be considered a reliable indicia of culpability. Under the old system, most courts would have sentenced Davern as a minor offender. Under the Guidelines the Defendant received more than four years’ imprisonment, not because the judge thought Da-vern’s crime justified so much time in prison or because he felt that society would be safer and free of a dangerous felon. He imposed the sentence because he felt bound within the rigidity of the inaptly named “Guidelines.” I do not believe that Congress intended the Guidelines to be so rigidly construed. II. We have seen how our Court has chosen to treat the numerous relevant conduct upward adjustment possibilities contained throughout the Guidelines as “imperatives” or mandates for the sentencing court to apply automatically without deviation based largely on the information concerning uncharged and unconvicted conduct provided by the prosecutor. The Court’s holding is breathtaking. Following the “logic” of Judge Easterbrook’s opinion in a Seventh Circuit case, our court holds that in interpreting the relevant conduct provisions it is entirely “irrelevant” that the defendant was not convicted of attempt, conspiracy or some other offense “because the guidelines treat success and failure, conviction and no conviction alike.” No distinction in sentencing may be drawn, according to the Court, between convicted conduct and unconvicted conduct and between completed crimes and unsuccessful attempts. It is true that the Guidelines, as presently drawn by the Sentencing Commission, seem to treat “success and failure, conviction and no conviction alike,” United States v. White, 888 F.2d 490, 499 (7th Cir.1989), but this position clearly contravenes the Guidelines’ enabling legislation. In 28 U.S.C. § 994(l) (1988), Congress does provide for a system that will deal with multiple offenses: § 994(l) allows “incremental penalties” for multiple offenses, but limits such penalties to the situation in which a defendant is “convicted of multiple offenses committed in the same course of conduct.” To this extent Congress provided for a conviction offense sentencing system just as the states have created in similar situations. The statute does not authorize incremental penalties when a defendant is convicted only of a single offense during a time period in which he may also have committed other offenses if he is not charged and convicted for those offenses. Section 994(l) is plain and unambiguous. It authorizes the Sentencing Commission only to impose: an incremental penalty for each offense in a case in which the defendant is convicted of— (A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and (B) multiple offenses committed at different times. 28 U.S.C. § 994(1) (1988) (emphasis added). No language of the Sentencing Reform Act of 1984 allows what the Sentencing Commission and now our Court have done: imposing incremental penalties for uncon-victed offenses either “in the same course of conduct” or “at different times.” The Act repeatedly refers to a “defendant who has been found guilty of an offense.” See, e.g., 18 U.S.C. §§ 3552(a), (b) & (c), 3552(b), 3554, 3555, 3556, 3561, 3571, 3581. It does not refer to unconvicted relevant conduct. The Guidelines should not be read to treat “conviction and no conviction alike” because such a reading exceeds the authority granted in the enabling legislation to either the Sentencing Commission or a court. It contravenes the plain language of the enabling legislation. See United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986) (starting point for statutory interpretation is the language of the statute itself). See also Ardestani v. INS, — U.S. -, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991) (“strong presumption” exists that the plain language, using the ordinary meaning of the words, clearly expresses congressional intent). Evidently, the Sentencing Commission does not feel restrained by the express language of § 994(l). It has seized its authority to impose incremental penalties in circumstances involving multiple offenses without heeding the language restricting the imposition of such penalties to conduct related to the offense of conviction only. The Commission takes the superficially appealing position that it is proper to impose incremental penalties for unconvicted conduct because it claims that courts have always done so. Supporters point out that sentencing courts traditionally had unbridled discretion with respect to what information about the defendant would be considered when imposing a sentence. That reasoning is flawed, however, because it does not acknowledge the prosecutor’s stake in the outcome or the fundamental distinction between allowing an unbiased court to consider unlimited factors and compelling the court to impose a sentence that reflects information selectively disclosed by the prosecutor. Vesting control over sentencing in an unbiased, objective, neutral federal judge is completely different from vesting such discretion in the prosecutor, a party to the case. The difference should be obvious, but apparently it is not obvious to the Sentencing Commission. I can find no legislative history contrary to the language of § 994(i) and supporting the proposition that Congress intended to mandate punishment for unindicted or un-convicted offenses as well as convicted offenses. In the absence of clear evidence that Congress intended to augment the penalty a defendant receives for a charged and convicted offense by additional penalties for uncharged conduct, the venerable rule of statutory construction, expressio unius est exclusio alterius — i.e, “the expression of one [thing] is the exclusion of the other” — counsels against so broad an interpretation. See generally National Railroad Passenger Corp. v. National Assoc. of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974); Neuberger v.