Herbert Montanye v. United States

_____________

No. 95-1837WM
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Herbert Ross Montanye, *
*
Appellant, *
* On Appeal from the United
v. * States District Court
* for the Western District
* of Missouri.
United States of America, *
*
*
Appellee. *

___________

Submitted: November 15, 1995

Filed: February 20, 1996
___________

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and FAGG, Circuit
Judges.
___________

RICHARD S. ARNOLD, Chief Judge.

Herbert Ross Montanye is serving two concurrent 30-year prison
terms for conspiracy and attempt to manufacture methamphetamine.
After our en banc Court affirmed his convictions and sentence,
United States v. Montanye, 996 F.2d 190 (8th Cir. 1993) ("Montanye
II") (vacating United States v. Montanye, 962 F.2d 1332 (8th Cir.
1992) ("Montanye I")), Mr. Montanye filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255. He claimed
his lawyer was constitutionally ineffective for two reasons: He
did not object to the finding in the Presentence Report ("PSR")
that Mr. Montanye could reasonably have foreseen the production
capacity of his co-conspirators' drug laboratory, and he did not
request a lesser-included-offense instruction. The District Court1
denied the motion, and Mr. Montanye now appeals. We affirm.

I.

In February 1990, Mr. Montanye agreed to purchase and deliver
sophisticated glassware to a clandestine drug laboratory in Kansas
City, Missouri. See Montanye II, 996 F.2d at 191. This laboratory
was the nerve center of an elaborate, ongoing drug manufacturing
and distribution network headed by George Bruton, one of
Mr. Montanye's co-conspirators. At Mr. Bruton's request,
Mr. Montanye drove from Bountiful, Utah, to Boise, Idaho, where he
bought, among other things, eight three-neck, 22-litre laboratory
flasks. He then delivered the equipment to Bruton at an
underground storage facility in Kansas City. In April, federal
agents raided the lab, and found 55 grams of methamphetamine and
enough ephedrine (a precursor chemical) to manufacture 37.5
kilograms more.2

A jury convicted Mr. Montanye of conspiracy and attempt to
manufacture methamphetamine. At sentencing, Mr. Montanye objected
to the finding in his PSR that 37.5 kilograms of methamphetamine
could have been produced with the precursor chemicals found at the
lab. According to Mr. Montanye, the PSR assumed one production
method, but the laboratory had actually used another. Mr. Montanye
contended the laboratory could have produced only 12 kilograms of
methamphetamine with the chemicals on hand. Therefore, Mr.
Montanye argued, his base offense level should have reflected

1
The Hon. Howard F. Sachs, United States District Judge for
the Western District of Missouri.
2
The facts of the conspiracy are presented in greater detail
in Montanye I, 962 F.2d at 1337-39.

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responsibility for 12, not 37.5, kilograms.3 Mr. Montanye did not
object, however, to the PSR's statement that the lab's production
capacity was "reasonably foreseeable" under U.S.S.G. § 1B1.3.4 The
District Court adopted the PSR, including the finding that the
lab's capacity was 37.5 kilograms. The Court added two points to
Mr. Montanye's offense level for escape, and imposed two concurrent
30-year sentences, the minimum penalty under the Guidelines.5

On appeal, a panel of this Court reversed Mr. Montanye's
attempt conviction and remanded his conspiracy conviction for
resentencing. Montanye I, 962 F.2d at 1346-47. Although Mr.
Montanye had not appealed his sentence, the panel concluded that a
30-year prison stint for delivering lab glassware was a "gross
miscarriage of justice," sufficiently offensive to suspend Federal
Rule of Appellate Procedure 28(a)'s usual requirements. Id. at
1347. In the panel's view, when Mr. Montanye agreed to deliver the
flasks, he "did not know how much or how little methamphetamine his
co-conspirators would produce." Ibid. Relying on United States v.
North, 900 F.2d 131 (8th Cir. 1990), and United States v. Edwards,
945 F.2d 1387 (7th Cir. 1991), cert. denied, 503 U.S. 973 (1992),
the panel decided that the laboratory's capacity and output were
not "reasonably foreseeable" to Mr. Montanye, and therefore the
District Court did not have enough evidence to hold Mr. Montanye

3
The base offense level for 12 kilograms of methamphetamine is
36; for 37.5 kilograms, it is 38. U.S.S.G. § 2D1.1(c)(3), (4).
4
Under U.S.S.G. § 1B1.3, "relevant conduct" includes:

(a)(1)(B) in the case of a jointly undertaken
criminal activity . . . , all reasonably
foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal
activity.
5
The trial court explained, "[t]he minimum sentence . . . is
appropriate because it exceeds defendant's life expectancy and the
court believes it would be unduly harsh to deny defendant all
opportunity to be released from prison in his late 70s."

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accountable for all 37.5 kilograms of manufacturable
methamphetamine. Montanye I, 962 F.2d at 1347.

Our Court reheard the case en banc, and affirmed both the
attempt conviction6 and the 30-year sentences. Montanye II, 996
F.2d 190. The en banc Court observed that, under Fed. R. Crim. P.
52(b), a court of appeals may not consider a question not raised by
the defendant at trial unless (1) the district court deviated from
a legal rule; (2) the error is plain; and (3) the error affected
the defendant's substantial rights. Id. at 192. The Court agreed
with Mr. Montanye that "when a conspiracy defendant objects that
the quantity of drugs attributed to the defendant in the PSR [is]
not reasonably foreseeable to the defendant, the district court
must make a foreseeability finding about the objecting defendant."
Ibid. But, the Court observed, when a defendant fails or decides
not to object to the PSR's foreseeability finding, a trial court
may simply rely on the Report. Ibid. (citations omitted). This is
what the District Court did in Mr. Montanye's case and therefore,
the en banc Court found, it did not deviate from a legal rule.7

What's more, the Court continued, Mr. Montanye's claim that
the record did not support a foreseeability finding was, even if
true, no help to him because "[l]ike the district court's
obligation to make a finding, the Government's obligation to
present evidence in support of a PSR's factual statements only
arises for the facts the defendant disputes." Id. at 193. Third,

6
The en banc Court was evenly divided on "whether Montanye's
mere delivery of glassware is a substantial step towards
manufacturing methamphetamine . . .." Montanye II, 996 F.2d at
192. As the dissenting judges observed, given the even split,
Mr. Montanye's attempt conviction "carries no precedential value."
Id. at 195 (Bright, J., dissenting).
7
As Judge John R. Gibson, concurring, observed, Mr. Montanye's
sentence range (360 months to life) would have been the same even
if the lab's capacity were only 12 kilograms. Montanye II, 996
F.2d at 194-95 (Gibson, J., concurring).

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the en banc Court stated that even if the District Court had
committed "plain error," the mistake did not affect Mr. Montanye's
sentence. Ibid. Mr. Montanye therefore failed to meet Rule 52's
three requirements. Even if he had met them, the Court added, it
"would not exercise [its] remedial discretion in this case."
Mr. Montanye had "ample opportunity" to challenge the PSR's
foreseeability finding, but chose instead to dispute the lab's
production capacity. Given this choice, the Court reasoned, there
is nothing unfair about leaving Mr. Montanye with the sentence that
resulted from it. Ibid.

Heeding the dissenting judges' suggestion in Montanye II,8
Mr. Montanye filed a § 2255 motion to vacate, set aside, or correct
his sentence. He claimed that his lawyer was unconstitutionally
ineffective because he failed to object to the PSR's foreseeability
finding.9 The District Court denied the motion, noting that "it
would be difficult to fault counsel in a constitutional sense for

8
The dissenting judges, who would have remanded the case for
resentencing, suggested that "a post-conviction remedy to review
the sentence is appropriate, challenging the competency of
Montanye's counsel in failing to raise . . . the obvious issue of
the foreseeability of his co-conspirators' conduct." Montanye II,
996 F.2d at 196 (Bright, J., dissenting).
9
Mr. Montanye also argued in the District Court that his
lawyer should have asked for jury instructions on an alternative or
"lesser-included" theory of liability under 21 U.S.C. § 843(a)(7)
(conspiracy to possess, manufacture, distribute, or import
prohibited glassware or equipment). In Mr. Montanye's view, he was
prejudiced "in that a conviction for conspiracy to distribute [a]
three neck round-bottom flask knowing that it will be used to
manufacture [a] controlled substance potentially bears a lesser
sentence" than the one Mr. Montanye received. The District Court
held that there was no basis for a factfinder to conclude that Mr.
Montanye had distributed glassware knowing it would be used to make
drugs, but not conspired to manufacture methamphetamine. Thus, Mr.
Montanye's lawyer was not unconstitutionally ineffective because
"[t]here was . . . no reasonable probability that the submission
suggested would have resulted in an acquittal of the charge of
conspiring in the manufacture of methamphetamine." Mr. Montanye
does not challenge this holding.

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not arguing that a nominal output . . . must be used in assessing
[the] sentencing responsibility of the glassware supplier" (citing
Strickland v. Washington, 466 U.S. 668 (1984)). The Court also
observed that Mr. Montanye had not "offer[ed] to show that the
manufacturing capacity used here was atypical and thus
unforeseeable." Mr. Montanye now appeals, and we affirm the
District Court's judgment.

II.

We note at the outset that, given the en banc Court's Montanye
II opinion, we need not decide whether Mr. Montanye's undeniably
harsh sentence10 is a "gross miscarriage of justice," see
Montanye I, 962 F.2d at 1347. The only issue before us now is
whether Mr. Montanye was unconstitutionally deprived of effective
assistance of counsel at sentencing. We think he was not.

A.

The Sixth Amendment right to counsel both strengthens and
protects our fundamental due-process right to fair trials. See
Strickland v. Washington, 466 U.S. 668, 684-85 (1984). Our
Constitution "recognizes the right to the assistance of counsel
because it envisions counsel's playing a role that is critical to
the ability of the adversarial system to produce just results."
Id. at 685. In other words, the right to counsel has a purpose; an
accused's lawyer has a constitutional job to do. Thus, "the right
to counsel is the right to effective assistance of counsel." Id.
at 686 (citation omitted). A less-demanding interpretation of the
Sixth Amendment "would permit a serious risk of injustice to infect
criminal trials." Driscoll v. Delo, 71 F.3d 701, 706 (8th Cir.
1995) (citation omitted).

10
As the District Court observed at sentencing, "sentences are
very severe in drug cases and that is intentional."

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 Strickland's familiar framework for analyzing ineffective-
assistance claims reflects the link between the right to counsel
and "the ability of the adversarial system to produce just
results." A defendant "must establish that counsel's performance
fell below professional standards and that ineffective performance
prejudiced his defense." Thompson v. United States, 61 F.3d 586,
587 (8th Cir. 1995); United States v. Williams, 994 F.2d 1287, 1291
(8th Cir. 1993) (requiring "unreasonably unprofessional" conduct
causing "actual prejudice"). He must prove more than a mistake by
his lawyer; the mistake, if there is one, must "undermine[] our
confidence in the outcome of the proceeding." Thompson, 61 F.3d at
587. This is a hard sell; our confidence is not easily undermined.
We presume attorneys provide effective assistance, and refuse to
second-guess strategic decisions or exploit the benefits of
hindsight. Ibid.

B.

Mr. Montanye insists that his lawyer should have argued that
the lab's productive capacity was not reasonably foreseeable,
instead of contesting only the capacity itself. Even if
Mr. Montanye is right, he must still prove that he was prejudiced
by his lawyer's mistake.11 In ineffective-assistance cases, if the
defendant does not prove prejudice, "[w]e need not address the
reasonableness of the attorney's behavior . . .." Williams, 994
F.2d at 1291 (regardless of counsel's defense strategy,
incriminating evidence would have been admitted into evidence).

11
Mr. Montanye repeatedly insists that the government has the
burden of proving the quantity of drugs for which a conspiracy
defendant is responsible. This is true. But if the defendant does
not object, the Court may adopt the PSR's findings. United States
v. Granados, 962 F.2d 767, 771 n.1 (8th Cir. 1992) (citation
omitted). Because Mr. Montanye did not raise the foreseeability
issue at sentencing, and is now arguing ineffective assistance of
counsel, the burden is now on him to prove ineffective assistance
by showing unreasonable conduct and prejudice.

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Because our primary concern is our confidence in the verdict, "[a]n
error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment." Strickland, 466 U.S. at 691;
see also United States v. Thomas, 992 F.2d 201, 205 (8th Cir.
1993).

The District Court did not explicitly conduct the two-step
Strickland analysis, but it's clear the Court found no prejudice to
Mr. Montanye from his lawyer's alleged mistake. We also find none.
As Judge Gibson noted in his Montanye II concurrence,

The 12 kilogram capacity calls for a base
offense level of 36. U.S.S.G. § 2D1.1(c)(4)
(Nov. 1991). A 37.5 kilogram capacity calls
for a base offense level of 38. Id. There is
no controversy about the district court's
addition of two offense levels for escape.
Thus, under defendant's theory [that the lab's
capacity was 12 kilograms] . . . , the total
offense level would be 38, and under the
government's theory [the lab capacity was 37.5
kilograms], 40. The guideline table reveals
considerable difference between these two
offense levels when the criminal history
category is modest. Montanye, however, had
twelve points in his criminal history, about
which there is no dispute. This results in a
criminal history category of V, and with this
category both offense levels 38 and 40 call
for a sentence range of 360 months to life.
The sentence imposed of 360 months was the
minimum sentence for either offense level.

Montanye II, 996 F.2d at 194 (John R. Gibson, J., concurring).
Thus, to win on his ineffective-assistance claim, Mr. Montanye must
show that, had his lawyer argued the foreseeability issue at
sentencing, there is a reasonable probability that the District
Court would have found him responsible for less than 12 kilograms.12

12
Actually, methamphetamine quantities between 10 and 30
kilograms carry a base offense level of 36. U.S.S.G.

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 After reviewing the transcript of Mr. Montanye's sentencing
proceeding, we are not convinced that this showing has been made.
At sentencing, the District Court stated, "[t]he laboratory
equipment would have produced 40 kilograms if used five times, [and
this] would seem to me to be a very conservative forecast of use .
. .." The Court also noted that drug-quantity calculation for
sentencing purposes "necessarily looks to reasonable expectations
. . .." The Court continued,

[i]t seems to me that if the laboratory
equipment used only five times would produce
40 kilograms, [and] surely it is not intended
by anyone in either a legal or illegal
business to only use the equipment once or
twice, . . . I think that . . . an expectation
of using the equipment five times is quite a
conservative method of determining capability
of production and reasonable expectations of
what would be done to carry out the
conspiracy . . ..

Rejecting Mr. Montanye's contention that he was only a "minor"
participant, the Court observed that "the defendant . . .
transported knowing what he was carrying and the purpose of it
. . .." Furthermore, in its order below, the District Court
repeated its belief that the government's drug-quantity estimate
reflected a "conservative method of determining capability of
production and reasonable expectations of what would be done to
carry out the conspiracy." The Court added,

even if the productive capacity was as limited
as petitioner argued at sentencing, use of the
equipment only five times would exceed the
capacity charged to petitioner. Presumably
those who put together a laboratory expect it
to be used more than once. In that sense the
calculation . . . may be considered modest or

§ 2D1.1(c)(4). Mr. Montanye would therefore have to show that he
could have reasonably foreseen less than ten kilograms before his
sentence would be affected.

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 conservative.

Finally, the Court stated that "[a]greeing to supply some $6,000
worth of manufacturing equipment would seem . . . to impose
responsibility for the likely product of the process. Petitioner
. . . does not offer to show that the manufacturing capacity used
here was atypical and thus unforeseeable."

The District Court's findings could have been more explicit.
Nonetheless, considering all these statements together, we think
the Court found that it was foreseeable to Mr. Montanye that the
laboratory would be used several times and that it would produce at
least 10 kilograms of methamphetamine. We do not think
Mr. Montanye's sentence would have been any different had his
counsel objected, and Mr. Montanye has brought nothing to our
attention which might prove otherwise. The laboratory would have
needed to be used only twice to produce the ten or more kilograms
necessary to justify petitioner's sentence. Because Mr. Montanye
has not shown prejudice, his ineffective-assistance-of-counsel
claim fails.

III.

To summarize: Had Mr. Montanye's lawyer objected to the PSR,
the District Court would have been required to make individualized
findings concerning the drug quantities reasonably foreseeable to
Mr. Montanye and within the scope of the conspiracy he joined. But
if those findings had been made, there is no reasonable likelihood
that petitioner would have been found responsible for less than 10
kilograms. He was a major supplier of sophisticated equipment. He
knew it was going to be used to run an illegal laboratory. He
tried to get the operators of the laboratory to allow him to
distribute some of their product. He has not shown that a
reasonable person in his place would not have foreseen that the
laboratory would produce at least 10 kilograms. He does not argue

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that counsel should or could have offered evidence that a
laboratory of the size reasonably anticipated would have produced
less.

Thus, in this case, Mr. Montanye is responsible for the lab's
manufacturing capacity, not merely because the operation of the lab
was foreseeable, but because the lab's capacity was also
foreseeable. More specifically, the operation of a lab that could
and would produce at least 10 kilograms of methamphetamine was both
within the scope of Mr. Montanye's conspiratorial agreement and
reasonably foreseeable to him - or, at any rate, we are reasonably
sure the District Court would still have so found even if trial
counsel had requested the specific finding for which defendant now
contends.

For these reasons, we affirm the judgment of the District
Court. We appreciate appointed counsel's diligent service in this
post-conviction proceeding.

BRIGHT, Circuit Judge, dissenting.

I dissent.

I address for the third time the district court's failure to
make proper foreseeability findings in this case. In Montanye's
original direct appeal, this dissenting judge wrote the majority
opinion joined in by United States Senior District Judge Henry
Woods and Judge Fagg dissented. We concluded that Montanye could
not be sentenced for the methamphetamine his co-conspirators
"produced" because the amount was not reasonably foreseeable to
him; that is, the activities of his co-conspirators did not fall
within the scope of his agreement with them. See United States v.
Montanye, 962 F.2d 1332, 1347 (8th Cir. 1992) (Montanye did not
know how much or how little methamphetamine co-conspirators would
produce, he never participated in process of manufacturing or

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distributing methamphetamine, and district court possessed
insufficient evidence to find Montanye responsible for all
methamphetamine produced).

That decision was later vacated by the grant of an en banc
hearing. The en banc majority then decided that Montanye forfeited
the foreseeability issue by failing to raise it in the district
court. United States v. Montanye, 996 F.2d 190, 192-93 (8th Cir.
1993) (reasoning this court lacked authority to consider question
in any event because district court is not required to make
foreseeability findings unless defendant objects to PSR and
Montanye did not show prejudice). In a dissent joined by Judges
McMillian and Morris S. Arnold, we stated that Montanye's thirty-
year sentence for delivering glassware was grossly unfair because
"the record before us does not show that Montanye knew the quantity
of methamphetamine to be produced by his co-conspirators." Id., at
195. The en banc case left open the possibility of a post-
conviction remedy.

Montanye then brought this 28 U.S.C. § 2255 motion, arguing
his counsel was ineffective in failing to raise the issue of
foreseeability at sentencing. The record shows that in the course
of an extensive two-year conspiracy, Montanye in effect took one
long distance telephone call, bought some glassware, transported it
interstate, got paid $6,000, and went home. This appears to have
been his only contact with the conspiracy, despite the government's
attempts at this late date to dredge up statements Montanye made
during the trip about the possibility of distributing methamphet-
amine for the conspiracy. The government itself claims the
methamphetamine was already an ongoing operation before the
additional flasks were acquired by Montanye, and he was not even
then in the State of Missouri. For this, he was held accountable
not for the entire amount his co-conspirators produced but instead
for the entire amount they might have produced had the lab not been
seized. At sentencing, Montanye's counsel failed to raise the

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foreseeability issue and indeed conceded Montanye should be held
accountable for the full amount the laboratory was capable of
producing.

The district court in rejecting the incompetency of counsel
contention did so by giving a crabbed and narrow reading to United
States v. Edwards, 945 F.2d 1387 (7th Cir. 1991) and United States
v. North, 900 F.2d 131 (8th Cir. 1990). I believe this reading was
wrong. See, e.g., United States v. Valencia-Lucena, 988 F.2d 228,
234 (lst Cir. 1993) ("criminal conspiracy net is often cast widely.
Individuals may be involved who know that the agreement they have
entered is illegal but have no way to foresee the magnitude or
ambition of the enterprise, as in the case of an individual hired
to remedy an unexpected complication in the main conspirators'
plot").

The majority here relies in part on Judge John R. Gibson's
concurrence for its affirmance. In that concurrence, Judge Gibson
calculated the assumed productive capacity of a methamphetamine
laboratory that never operated in the manner projected by the
prosecution. These speculations have nothing to do with foresee-
ability. Indeed, no court has yet made any proper foreseeability
findings as a basis to support Montanye's thirty-year prison
sentence. This omission flows directly from counsel's ineffective
assistance at sentencing in failing to raise the foreseeability
issue which was then well known. See U.S.S.G. § 1B1.3, comment.
(n.1) (November 1989) (in case of jointly undertaken criminal
activity, defendant accountable for others' conduct where it was
"reasonably foreseeable by the defendant. . . . [w]here it is
established that the conduct was neither within the scope of the
defendant's agreement, nor was reasonably foreseeable in connection
with the criminal activity the defendant agreed to jointly
undertake, such conduct is not included in establishing the
defendant's offense level under this guideline").

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 While I adhere to the views previously stated by this writer,
Montanye, 962 F.2d at 1347; Montanye, 996 F.2d at 195-96, that the
thirty-year sentence imposed on Montanye is improper, nevertheless
the learned district judge has imposed this sentence under the
guidelines and the majority has approved. By any ordinary measure
outside the guidelines, I would think this sentence would be
considered draconian, unnecessarily harsh and unreasonable. The
defendant's thirty years of incarceration for furnishing glassware
to the conspiracy, a conspiracy which incidentally never delivered
one gram of drugs to any consumer, will cost the public $21,995 per
year based on 1995 figures13 and approximately over $650,000 for the
full thirty-year sentence.

This result suggests that I should repeat what I previously
wrote in United States v. Hiveley, 61 F.3d 1358 (8th Cir. 1995).
I commented on the sentencing guidelines as follows:

Federal judges who sentence offenders know the
problem. 86.4% of district judges support changing the
current sentencing rules to increase the discretion of
the judge; 70.4% support repealing most of all mandatory
minimum sentencing and 82.8% of all district judges feel
that federal judges would be appropriate decision makers
about the nature and severity of sanctions to be imposed
in criminal cases. More than half would eliminate
sentencing guidelines. Federal Judicial Center, Planning
for the Future: Results of a 1992 Federal Judicial
Center Survey of United States Judges (1994).

These are not "soft headed judges." They serve on
the front lines of the criminal justice system and know
of what they speak. They represent appointees of every
president from Eisenhower to Clinton. But the law makers
and law enforcers, Congress and the administration, seem

13
In Fiscal 1995, we estimate the average cost
per day per inmate will be $60.26, with an
average annual amount of $21,995.

Letter from Kathleen M. Hawk, Director, United States Department of
Justice, Federal Bureau of Prisons, to the Honorable Myron H.
Bright (July 6, 1995)(on file with Judge Bright).

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 to turn a deaf ear to the problem and to the unnecessary,
immense cost to the taxpayer of unnecessary lengthy
incarceration of drug offenders.

I think it can be said that judges are vitally
concerned with the drug problem in America. Reason, not
emotion, must be brought to bear on the subject. What
are judges to do about these unreasonable sentencing
rules which we must apply? I suggest that we must try to
make our views known loudly and clearly.

As for this writer, I intend to cite to this opinion
and its addendum in every drug case where I believe the
present system requires the sentencing judge to impose an
unreasonable sentence. I would urge my fellow judges,
similarly, to speak out and to write opinions on this
subject. The public needs to know that unnecessary,
harsh and unreasonable drug sentences serve to waste
billions of dollars without doing much good for society.
We have an unreasonable system.14

The message judges, district and circuit, can send
Congress and the President is this: If you want to save
billions for the country without harming anyone, take a
look at and change the rules of sentencing now in the
federal courts. If we speak with a united voice perhaps
they, and the public, will listen.

Id., at 1365-1366.

Accordingly, I dissent.

14
I have written other commentaries on the guidelines. See,
e.g., United States v. Griffin, 17 F.3d 269, 273 (8th Cir. 1994)
(Bright, J., dissenting) (addressing the myth of consistency in
sentences under the Guidelines and commenting on the obvious
unfairness of mandatory minimum sentences); United States v.
Goebel, 898 F.2d 675, 679 (8th Cir. 1990) (Bright, J., concurring)
(observing that the Sentencing Guidelines produce disparate and
unfair sentencing results among similar offenders); United States
v. O'Meara, 895 F.2d 1216, 1221 (8th Cir.) (Bright, J., dissent-
ing), cert. denied, 498 U.S. 943 (1990) ("This case opens the
window on the sometimes bizarre and topsy-turvy world of sentencing
under the Guidelines.").

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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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