-
USCA1 Opinion
November 22, 1994 UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 93-2120
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM J. DeCOSTA,
Defendant, Appellant.
____________________
ERRATA SHEET ERRATA SHEET
The opinion of this court issued on October 7, 1994, is hereby
amended as follows:
Delete the last two sentences of the first full paragraph on page
ten which begins with "As for the . . . ." and ends with "is worth
pondering." and replace the sentences with the following two
sentences:
"As for the government, zeal is ordinarily to be
admired in a prosector but it can be overdone.
Accordingly, we are comforted to learn that prior
to prosecution DeCosta was offered an opportunity
to participate in the pretrial diversion program--
even though for reasons not developed in the record
no agreement was ultimately reached."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2120
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM J. DeCOSTA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
____________________
Frank P. Marchetti, by Appointment of the Court, for appellant. __________________
Nadine Pellegrini, Assistant United States Attorney, with whom __________________
Donald K. Stern, United States Attorney, was on brief for the United _______________
States.
____________________
October 7, 1994
____________________
BOUDIN, Circuit Judge. As part of a postal service ______________
"sting," postal inspectors placed an advertisement concerning
child pornography in a local publication. William DeCosta
was foolish enough to respond. In correspondence with an
undercover postal inspector, DeCosta expressed an interest in
receiving such material. In February 1989, DeCosta mailed to
the undercover agent four photographs depicting young girls
in sexually explicit poses. Thereafter he was indicted.
In December 1992, DeCosta pleaded guilty to a violation
of 18 U.S.C. 2252(a)(2) which relates to the mailing of
child pornography. Prior to the plea, the government (in
connection with DeCosta's release conditions) urged that
DeCosta might be dangerous to children, offering the
testimony of a psychologist who had examined DeCosta. The
district judge had DeCosta examined by another expert and
accepted that expert's conclusion that DeCosta posed no such
danger.
The guideline sentence for DeCosta's offense, given his
lack of any criminal history, was 12 to 18 months
imprisonment. U.S.S.G. 2G2.2 (1989). (The district court
utilized the November 1989 manual because a subsequent
increase in the guideline range posed an ex post facto _______________
problem; all citations below are to the 1989 manual.)
Between the time of the guilty plea and the sentencing
hearing on August 12, 1993, the district court energetically
-2- -2-
explored the options available, including in-prison
treatment. DeCosta himself was receiving out-patient
counseling at the time of the sentencing hearing. At the
sentencing hearing on August 12, 1993, the district judge
asked the prosecutor whether the U.S. Attorney's office would
consider an alternative to imprisonment; it appears from the
transcript that there had been earlier, unsuccessful efforts
along this line. The prosecutor said that the matter had
been discussed in her office and that pre-trial diversion was
not agreeable to the government. In fact, the prosecutor
urged imprisonment for 18 months, the maximum period allowed
under the guidelines.
At the hearing, there was testimony from the expert who
had previously concluded that DeCosta posed no physical
danger to anyone. DeCosta's attorney urged the court to
impose probation but provided no explanation as to how the
court might be empowered to do so. Counsel did advert to
DeCosta's present out-patient treatment, his somewhat limited
intelligence and the fact that he had not taken the pictures
he had mailed. It was also pointed out that although DeCosta
had lost his job as a security guard, he had found new
employment to support his family.
After describing DeCosta's current out-patient
treatment, his counsel said that he (DeCosta) "has improved
tremendously" in his attitude and outlook. DeCosta's wife,
-3- -3-
said counsel, wants him home. When defense counsel said that
the court "should look further, to see if there's some way to
give this man probation," the district court pointed out that
it had urged counsel to help it to distinguish several cases
that appeared to limit the court's ability to depart from the
guidelines. The court then said that DeCosta could receive
treatment at the Buttner, North Carolina, facility if the 12
month minimum sentence were imposed. DeCosta's counsel
replied:
I think the repercussions of that would
be far greater than what we've had up to
this point, where the children [DeCosta's
children] have suffered, the family has
suffered, the publicity has hurt them.
He's lost his job, his income has
suffered. Now, the family will be on
welfare and I don't think they'll ever
get back together, if this man goes away
for a year. . . . And that would be even
sadder than what we've got today.
After a further colloquy, including the prosecutor's
rejection of pretrial diversion, the court sentenced DeCosta
to one year of imprisonment, three years of supervised
release including mental health counseling as directed, and
the mandatory $50 special assessment. The court recommended
to the Bureau of Prisons that the sentence be served at
Buttner with appropriate treatment. Thereafter, the district
court stayed the sentence pending this appeal.
On appeal, DeCosta's central argument concerns the
district court failure to depart from the guidelines range
-4- -4-
and sentence DeCosta to probation or something less than one
year. It is settled law that a sentencing court is entitled
to depart in cases that fall outside the "heartland"
contemplated by the guidelines. See United States v. Rivera, ___ _____________ ______
994 F.2d 942, 946-47 (1st Cir. 1993). Both the statute and
the guidelines permit departures where the court finds "an
aggravating or mitigating circumstance of a kind, or to a
degree not adequately taken into consideration" by the
Sentencing Commission "that should result in a sentence
different from that described" in the guidelines. 18 U.S.C.
3553(b); U.S.S.G. 5K2.0.
Although the decision not to depart is ordinarily within
the district court's discretion, DeCosta asserts that the
district court erred in concluding that it had no discretion
to depart. It quotes in part the district judge's comment at
the hearing:
But unless I am persuaded that this
case is extraordinary [in] kind o[r]
degree and a departure is justified, I'm
required to give the defendant at least
12 months in prison. Anticipating that I
would not have the discretion to give a
probationary sentence, I've talked with
the Bureau of Prisons, as well as with
Pretrial Services and Probation.
DeCosta's brief further argues that the court could and
should have departed in light of DeCosta's limited
intelligence, his family and employment situation, his
cooperation in seeking counseling, his acceptance of
-5- -5-
responsibility, and the lack of danger that he posed to
others.
The government has responded with a brief of more than
twice the length of that filed by DeCosta. The brief argues,
with extensive citations, that DeCosta failed to raise the
departure issue below and has therefore waived it. If not
waived, says the government, the district court's sentence is
in any case within the guideline range and therefore non-
appealable. Finally, if the refusal to depart is appealable,
the government says that none of the family or other
circumstances urged are extraordinary enough to provide a
reasonable basis for departure; and the brief analyzes each
of these grounds. It is not easy to think of anything else
that might have been argued in defense of the sentence.
We start with the government's claim that the departure
issue has been waived. There is no doubt that the district
court did consider whether to depart. The court emphasized
DeCosta's lack of dangerousness and went so far as to ask the
parties to brief the question whether United States v. ______________
Studley, 907 F.2d 254 (1st Cir. 1990), and United States v. _______ ______________
Deane, 907 F.2d 11 (1st Cir. 1990), precluded a departure on _____
this ground. Apparently, DeCosta's counsel found no basis to
distinguish Studley or Deane and on appeal agrees that lack _______ _____
of dangerousness alone would not be a permissible basis for
departure.
-6- -6-
It is far less clear that the issue of departure on
other grounds was explicitly raised at the hearing.
DeCosta's counsel, as the government points out, never used
the term, and the factors that he emphasized at the hearing,
apart from lack of danger, were for the most part relevant to
the selection of a sentence within the guideline range. On
the other hand, DeCosta's counsel certainly did ask for
probation, a result that could only be reached through a
departure, and urged the same factors now pressed as grounds
for departure. The district court made clear that it would
happily depart if it had the authority to do so. On
balance, we are not inclined to resolve this case on the
basis of waiver.
The government's next argument, that the district
court's decision is unreviewable, presents quite a different
problem. The discretionary decision not to depart is an
action ordinarily not subject to appellate review, but there
are certain exceptions. These exceptions include cases where
the sentencing court declines to depart because of "a mistake
of law," such as "the sentencing court's mistaken impression
that it lacked the legal authority to deviate" or its
"misapprehension of the rules governing departures." United ______
States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994). For a ______ _______
thorough discussion of the matter, see United States v. ___ _____________
Pierro, No. 93-1313 (1st Cir. July 27, 1994). ______
-7- -7-
Difficulty commonly arises where mitigating factors are
urged as a basis for departure, and the district court simply
asserts that it "cannot" or "is without authority" to depart.
Terse phrases like these are common, for the district court
is not required to give reasons for refusing to depart, but
they may create an ambiguity. A district court might think
that it "cannot" depart based on the factors urged because it
misunderstands the guidelines or the precedents; for example,
it might think that a mitigating factor is a forbidden basis
for departure when it is actually a permissible one.
Conversely, a district court might say that it "cannot"
depart where it means only that it has weighed the factors
urged and found that they do not distinguish the case from
the mine run of cases.
Here, we have no reason to think that the district court
made any mistake of law in construing the governing statute,
the guidelines or pertinent precedent. Defense counsel
implies that the district court must have underestimated its
authority to depart on grounds other than lack of danger,
because the court failed to discuss the other factors as a
possible basis for departure. But the obvious reason for
this "failure" is that defense counsel at the sentencing
hearing never explicitly urged these other factors as a basis
for departure.
-8- -8-
DeCosta is also not helped by the district judge's
comment that "I would not have the discretion to give a
probationary sentence . . . ." Context often explains just
what the court meant by such remarks and it does so here.
The district judge's immediately prior sentence, quoted _____
above, makes plain that the district judge meant only that he
couldnot findthecase extraordinaryenoughto justifyadeparture.
In this case, it is easy to conclude that there is no
evident or even arguable error of law that would allow us to
review the refusal to depart. But difficult cases--at least
as to reviewability--will remain wherever mitigating factors
are explicitly urged as the basis for a departure and the
district court says only that it "cannot" or "lacks power" to
depart. Sometimes, as here, it will be easy to determine
just what the district court meant. But because the problem
is a recurring one, we have a suggestion: that the district
court say--where this is the case--that it has considered the
mitigating factors urged but does not find them sufficiently
unusual to warrant a departure in the case at hand.
Of course, in some cases this formula would not be
proper. Here, for example, we fully agree with the district
court that Studly and Deane mean that the district court ______ _____
would have had no authority to depart simply because DeCosta
was not dangerous. Similarly, if a district court desired to
depart but thought this course forbidden by explicit
-9- -9-
guideline language, one would expect the court to cast its
refusal in these terms. But where permissible factors are
urged and the court simply thinks that there is not enough to
distinguish the case from the ordinary, a sentence to this
effect would be helpful.
Having found no legal error, we need not consider the
government's final, alternative argument that the
circumstances in this case are not so extraordinary as to
provide a basis for departure. Still, it would be
unfortunate to leave the impression that there exists an
obvious basis for departure that we are ignoring because
defense counsel failed to frame the legal issue in the
district court. No record evidence is present here that
"reduced mental capacity contributed to the commission of the
offense," U.S.S.G. 5K2.13, and the guideline language on
family circumstances and employment is not helpful to DeCosta
in this case. Id. 5H1.5, 5H1.6. ___
Child pornography is not a victimless crime, but for
DeCosta and his family this is surely a very sad affair. We
commend the district court for its multiple efforts to find a
solution best suited to the circumstances. As for the
government, zeal is ordinarily to be admired in a prosector
but it can be overdone. Accordingly, we are comforted to
learn that prior to prosecution DeCosta was offered an
opportunity to participate in the pretrial diversion program-
-10- -10-
-even though for reasons not developed in the record no
agreement was ultimately reached.
The appeal is dismissed for want of appellate _________
jurisdiction.
-11- -11-
Document Info
Docket Number： 93-2120
Filed Date： 11/22/1994
Precedential Status： Precedential
Modified Date： 9/21/2015