CANBY, Circuit Judge:
Each appellant pleaded guilty to one count arising from participation in a single shipment of marijuana that was part of a large and protracted marijuana smuggling operation. Each was sentenced to the maximum term permitted by statute. On appeal, each contends that the district court abused its ordinarily wide discretion in sentencing by failing adequately to consider individualized factors. We agree, vacate appellants' sentences, and remand for individualized resentencing in accord with this opinion.
From 1977 to 1981, a large-scale drug smuggling organization known as the "Coronado Company" imported and distributed approximately twenty-four tons of marijuana from Thailand. More than twenty-five persons participated. The five appellants here, Robert Barker, William McKinley, Jeffrey Engle, Jason Engle, and George Timmons, were each charged with multiple substantive and conspiracy counts stemming from their involvement in the Company's importation of five tons of marijuana in 1981.
Count One charged each with conspiring to import five tons of marijuana in violation of 21 U.S.C. § 963. Count Two charged defendants with conspiracy to possess and distribute. Counts Three and Four charged that Jeffrey and Jason Engle had actually imported the marijuana in violation of 21 U.S.C. § 952, and had possessed it with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(6).
Separate superceding informations were filed against Barker, McKinney, and Timmons. Barker and McKinney were charged with unlawful possession, respectively, of 140 and 45 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Timmons was charged with conspiracy to possess 180 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Each defendant ultimately pleaded guilty to a single count, and remaining counts were dismissed upon government motion. Barker, McKinney, and Timmons each entered guilty pleas to the superceding informations. Jeffrey and Jason Engle each pleaded guilty to Count One of the indictment.
Each defendant's involvement in the smuggling operation was described by his respective counsel at the sentencing hearing. Jeffrey and Jason Engle were crew members on a boat that delivered the marijuana from Thailand. Timmons invested $100,000 in the operation and was repaid with 180 pounds of marijuana. Barker invested $50,000 and received 45 pounds of marijuana in return. McKinney "lent" $75,000 to the principals of the smuggling ring, and was also repaid with 45 pounds. Although the entire conspiracy extended for over five years, the record does not reflect any other involvement in the smuggling operation by any of these defendants.
By the time appellants entered their guilty pleas, most of the other members of the "Coronado Company" had been sentenced in separate proceedings. After comparing relative levels of culpability and considering the sentences imposed in other districts on more prominent members of
It is generally accepted that trial courts are accorded virtually unfettered discretion in imposing sentence. See Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); but see 3 C. Wright, Federal Practice and Procedure § 533 at 168-69 (1982) (rule arguably based on misconstruction of 1891 statute creating courts of appeals); Woosley v. United States, 478 F.2d 139, 141-42 (8th Cir.1973) (en banc) (discussing 1891 statute and noting that Supreme Court support for this proposition "is pure dicta"). While there are exceptions, see United States v. Garrett, 680 F.2d 650, 652 & n. 3 (9th Cir.1982), a sentence is generally not subject to appellate review if it is within statutory limits. See United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); United States v. Lopez-Gonzales, 688 F.2d 1275, 1276 (9th Cir.1982).
The exceptions to this rule, while limited, are well supported. Courts have remanded for resentencing "where the sentencing court in effect refuses to exercise its discretion," United States v. Wardlaw, 576 F.2d 932, 938 (1st Cir.1978), and where the district court "exceeded the bounds of its sentencing discretion" by failing to individualize sentences. Id. In Lopez-Gonzales, we held that because trial courts are obligated actually to exercise their discretion, we may conduct a limited review of the sentencing process to insure that discretion has, in fact, been exercised by the district court. 688 F.2d at 1276 (citing Dorszynski, 418 U.S. at 443, 94 S.Ct. at 3052). In Garrett, we noted that sentences imposed on a mechanical basis have been vacated as an abuse of the sentencing judge's discretion. 680 F.2d at 652 n. 3 (citing Woosley, 478 F.2d at 141-43); see also United States v. Hartford, 489 F.2d 652, 655 (5th Cir.1974) (rigid policy of imposing maximum sentence for narcotics violations both "an abuse of judicial discretion" and "under no reasonable conception an exercise of judicial discretion").
B. Individualized Sentencing
Few legal principles are either as ancient
While we do not suggest that this trend has been without reverses, past or present, the concept of individualized sentencing is firmly entrenched in our present jurisprudence. As the Supreme Court has observed,
Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949) (citation omitted); United States v. Foss, 501 F.2d 522, 527 (1st Cir.1974); Wardlaw, 576 F.2d at 938. In each case, a criminal sentence must reflect an individualized assessment of a particular defendant's culpability rather than a mechanistic application of a given sentence to a given category of crime. As we said in Lopez-Gonzales, 688 F.2d at 1276-77,
Accord Foss, 501 F.2d at 527; United States v. Thompson, 483 F.2d 527, 529 (3d Cir.1973).
In Lopez-Gonzales, the district court had stated that it automatically imposed the maximum sentence whenever an illegal alien is apprehended after flight and pursuit. 688 F.2d at 1275; see Thompson, 483 F.2d at 529. Although the court here did not announce a fixed or predetermined policy to sentence drug offenders to the maximum statutory term, a full reading of the record does reveal that the court sentenced defendants as essentially undifferentiated units, ignoring both their differences from one another, and from others who might be charged under the same statute. This failure adequately to individualize sentences ignores the goal that punishment fit the criminal.
This is not to suggest that any, or even all, of the defendants here could not legitimately have been sentenced to the maximum statutory term. Our concern is less the appropriateness of a given criminal sentence than the propriety of the process through which sentence was imposed. Specifically, do the four corners of the record indicate that the district court actually and adequately considered the factors necessary
While the duty of the sentencing courts to individualize is clear, it may well be impossible to propound for purposes of review a single test or standard sufficient to insure individualized sentencing. Cf. Solem, 103 S.Ct. at 3010 n. 17 (no single criterion can identify when a sentence is constitutionally disproportionate). The danger in specifying sentencing standards is the potential for any such test to become as mechanistic in application as the mechanized sentencing which we seek to avoid. To require the exercise of sound discretion is not to fall into that trap, however. See Lopez-Gonzales, 688 F.2d at 1277 (requiring exercise of discretion need not lead to "hollow ritual"). Whether sound discretion has been exercised must be answered in each case through a thorough review of the record. Here, we cannot answer in the affirmative.
To begin with, the record is replete with comments suggesting that it was the category of crime, rather than the culpability of each individual criminal, that led the court to impose the maximum statutory term. Typical, for example, was the court's statement upon sentencing Jason Engle. Although Engle had demonstrated remorse and rehabilitation, the court observed
At the sentencing hearing, counsel stressed (and the presentence report confirmed) that Jason's brother Jeffrey did not realize the boat was involved in smuggling marijuana until after they were at sea. He had apparently boarded the boat because his older brother had indicated they would be going fishing. Although he did eventually help load and unload the marijuana, when he learned of the indictment he immediately turned himself in and was consistently contrite. Nevertheless, the court observed, after the government's recommendation of one year in prison,
The court made similar statements in sentencing the three defendants who contributed money to the scheme, first criticizing the government's recommendations and then commenting on the severity of the crime. There is no indication that the court seriously considered arguments made in mitigation.
In addition, several factors support the inference that, in this case, the district court's imposition of sentence was more "mechanistic," Foss, 501 F.2d at 522, than measured. First, the court chastised the government for its recommendations and
Second, the district court imposed the same maximum statutory prison term upon each defendant, despite the differences in their levels of involvement. Although imposition of a maximum term does not alone justify appellate intervention, the district court's failure to differentiate among defendants ignores that defendants "were entitled to have their sentences set primarily in terms of the seriousness of their own crimes and associated individual factors." Wardlaw, 576 F.2d at 939. Cf. Solem, 103 S.Ct. at 3011 (relative culpability relevant in assessing sentence challenged under eighth amendment).
Similarly, although the district court correctly noted that it is not required to harmonize its view of appropriate sentencing with that of other district courts,
Finally, we point out that 21 U.S.C. § 841(b)(1)(B), which provides for a maximum sentence of five years for a marijuana offense involving less than one thousand pounds, "`is an express legislative sanction ... of meting out sentences substantially less than five years in prison ... where there are appropriate mitigating circumstances.'" Hartford, 489 F.2d at 655 (citing United States v. Daniels, 446 F.2d 967, 971-72 (6th Cir.1971)). Although the establishment of a maximum sentence for offenses involving up to one thousand pounds does not require that defendants involved in smuggling lesser amounts receive sentences proportionally reduced, "from this express legislative authorization there is clearly evidenced an `implied legislative will to impose a lesser sentence where appropriate.'" Id. at 655. By routinely entering the maximum sentence without differentiating among defendants, the district court "failed to abide by the implied congressional mandate to frame the punishment to address the particular circumstances of the individual defendant." Id.
We emphasize that neither the court's comments nor these additional factors, taken alone, would necessarily justify appellate intervention. Taken together, however, they leave us with the clear impression that the sentences imposed by the district court reflect more its personal view of the opprobrium of the crime charged — its view that "this is a terrible crime, tons and tons of marijuana coming into the country.... a plague on society...." — than a careful weighing of mitigating factors and the relative levels of culpability and involvement of each defendant.
C. General Deterrence
In sentencing appellants to the maximum statutory term, the district court repeatedly alluded to the enormous societal harm it attributed to marijuana smuggling. As the government notes, implicit in the court's comments was the desire to stem the tide of marijuana smuggling through the deterrent effect maximum sentences would presumably
We do not find this desire to "send a message" through sentencing inappropriate per se. Indeed, perhaps paramount among the purposes of punishment is the desire to deter similar misconduct by others.
Nevertheless, deterrence as a sentencing rationale is subject to limitation. Tailoring punishment to the individual criminal may reduce the efficacy of deterrence, but that reduction is an inevitable cost of a system that eschews mechanistic punishment.
Central to our system of values and implicit in the requirement of individualized sentencing is the categorical imperative that no person may be used merely as an instrument of social policy, that human beings are to be treated not simply as means to a social end like deterrence, but also —
How that balance is to be struck is committed to the sound discretion of the trial court; that it be struck is what we require today. See Lopez-Gonzales, 688 F.2d at 1277.
Because we find, after a careful review of the record, that the district court's imposition of sentence was motivated by the desire for general deterrence to the exclusion of adequate consideration of individual factors, we vacate and remand for resentencing.
Sentences VACATED and REMANDED for resentencing.