Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.
No. 94 CR 14--Robert Miller, Jr., Judge.
Before Easterbrook, Kanne, and Rovner, Circuit Judges.
Vacated and Remanded by the United States Supreme Court November 18, 1996
Decision on Remand October 17, 1997
This case is before us on remand from the Supreme Court of the United States. Meza v. United States, 117 S. Ct. 478 (1996). In its order, the Supreme Court granted Meza's petition for a writ of certiorari, vacated our earlier judgment, and remanded the case to this Court for review in light of the Supreme Court's intervening decision in Koon v. United States, 518 U.S. ___, 116 S. Ct. 2035 (1996). In an earlier appeal, this Court followed our established precedent and held that a district court has no authority to depart from the Sentencing Guidelines to rectify a perceived disparity among co-conspirators' sentences. After incorporating Koon's analysis, we find that a disparity between co-conspirators' sentences that results from a downward departure for some, but not all, of the co-conspirators for cooperating with the Government is not a valid basis for downward departure for the non-cooperating conspirator. We therefore again affirm the district court's refusal to depart downward from the Guidelines' sentencing range.
In 1992, an investigation revealed that Ricky Bryant and his brother were dealing large quantities of marijuana in the Goshen/Elkhart area of Indiana from a source in Texas. The appellant, Antonio Meza, acted as the middleman in these transactions. He would acquire the marijuana in Texas and sell it to Bryant for a fee of $50.00 per pound. The marijuana would then be driven back to Indiana and distributed. Law enforcement officials estimated that Meza supplied up to 800 pounds of marijuana to Bryant.
On March 3, 1994, the Grand Jury for the Northern District of Indiana returned a 15-count indictment against Meza for his participation in this conspiracy to distribute marijuana. Law enforcement officials, however, were unable to arrest Meza in Texas until October 3, 1994 as they were involved in another extensive investigation. By the time of Meza's arrest, the other conspirators had already cooperated with the Government, and each had been convicted and sentenced. Meza did not seek to cooperate with the Government.
Meza entered a guilty plea on January 10, 1995 and was advised that he was facing a possible mandatory minimum sentence of sixty months for his role in a conspiracy to possess with intent to distribute marijuana in excess of 100 kilograms in violation of 21 U.S.C. sec. 846. On May 5, 1995, Judge Miller held a sentencing hearing, at which neither side objected to calculations that placed Meza in criminal history category I, base offense level twenty-three, and a sentencing range of forty-six to fifty-seven months.
At the hearing, Meza sought a departure downward from this sentencing range to remedy a perceived disparity in sentences between himself and the others in the conspiracy. The Government argued against any kind of departure, stressing that any disparity in sentences between the co-offenders was due to the effect of U.S.S.G. sec. 5K1.1 on those individuals for their cooperation with the ongoing investigation. See United States Sentencing Guidelines Manual, sec. 5K1.1 (1994). According to the Government, Meza did not merit a departure under sec. 5K1.1 because Meza was unwilling to cooperate with the Government.
Relying on our precedent, the court refused Meza's request. It believed it had no authority to grant Meza's departure request because a "disparity among codefendants' sentences is not a valid basis to challenge a guideline sentence otherwise correctly calculated." United States v. Meza, No. 3:94-CR-14, at 4 (N.D. Ind. May 5, 1995) (sentencing order) (quoting United States v. Dillard, 43 F.3d 299, 311 (7th Cir. 1994)); see also United States v. Edwards, 945 F.2d 1387, 139-98 (7th Cir. 1991) (applying rule against co-conspirators who were codefendants); United States v. Smith, 897 F.2d 909, 911 (7th Cir. 1990) (applying rule against co-conspirators who were not codefendants); United States v. Guerrero, 894 F.2d 261, 267 (7th Cir. 1990) (applying rule against co-conspirators who were codefendants). The district court also stated that it would find that a disparity of sentencing is not a permissible basis for departure even without such precedent. According to the court, Meza did not merit a departure downward in sentencing because his circumstances [we]re far from unique; they d[id] not lie outside the "heartland" of conspiracy cases. U.S.S.G. sec. 5K1.1 is a disparity-producing guideline, and has ...