United States v. Bernett ( 2000 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 99-2380
    UNITED STATES OF AMERICA,
    Appellant,
    v.
    EUGENE EDWARD MARTIN,
    Defendant, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. William G. Young, U.S. District Judge]
    Before
    Selya and Lipez, Circuit Judges,
    and Casellas,* District Judge.
    Dina Michael Chaitowitz, Assistant United States Attorney,
    with whom Donald K. Stern, United States Attorney, was on brief,
    for appellant.
    Thomas H. Souza, with whom Jeremy M. Carter and Carter &
    Associates were on brief, for appellee.
    August 15, 2000
    ________________
    *Of the District of Puerto Rico, sitting by designation.
    SELYA, Circuit Judge. This appeal tests the boundaries
    of the district court's authority to depart from the prescribed
    guideline sentencing range (GSR).              Concluding, as we do, that
    the court roamed too far afield, we vacate the imposed sentence
    and remand for resentencing.
    I.
    Background
    The relevant facts are simple and straightforward.                  On
    May 11, 1999, defendant-appellee Eugene Edward Martin pleaded
    guilty to a charge of distributing 119.6 grams of cocaine base.
    See   21   U.S.C.     §    841.     The     district   court   convened       the
    disposition hearing on September 8, 1999.              It applied the 1998
    edition    of   the       United   States    Sentencing   Guidelines      —     a
    determination with which no one quarrels, see United States v.
    Harotunian, 
    920 F.2d 1040
    , 1041-42 (1st Cir. 1990) — and arrived
    at a base offense level of thirty-two.             See USSG §2D1.1(c)(4).
    The court proceeded to adjust downward by three levels for
    acceptance of responsibility.             See 
    id. §3E1.1. It
    then found
    the "safety valve" to be applicable, see 18 U.S.C. § 3553(f);
    USSG §§2D1.1(b)(6), 5C1.2, and effected a further two-level
    reduction, see generally United States v. Ortiz-Santiago, 
    211 F.3d 146
    , 150-51 (1st Cir. 2000) (explaining operation of the
    safety valve).        These calculations yielded an adjusted offense
    -3-
    level of twenty-seven, which, when combined with Martin's lack
    of a prior criminal record, corresponded to a GSR of 70-87
    months.        See USSG Ch.5, Pt.A (sentencing table).
    To this point, the district court's judgments were
    impeccable.       The court, however, did not stop there; it snubbed
    the GSR and departed downward sua sponte to impose a 64-month
    incarcerative term.            The judge premised this departure on a
    combination of two factors.                First, he remarked "the absence of
    [an active] Sentencing Commission."1                     This circumstance, he
    reasoned,       was   one   that     "no    one   had   contemplated"      and    that
    permitted him to depart "if I think it reasonable that had there
    been       a   Commission      the    guidelines        would    in      fact    apply
    differently."          Judge    Young      then   referred      to   a   statistical
    compilation that he had directed the chief probation officer to
    prepare.        These statistics purported to reflect all federal
    sentences imposed in fiscal year 1997 on persons whose primary
    offense was drug trafficking, regardless of the nature or amount
    of the substances involved.                 In Judge Young's view, the data
    "show[ed] that nationally the median months in prison out of
    17,137 offenders sentenced was 57 months, and in the First
    1
    In fact, the Commission had no voting members from and
    after October 31, 1998, having lost its quorum earlier that
    year. This situation persisted until the Senate confirmed seven
    new Commissioners on November 10, 1999.
    -4-
    Circuit the mean was 67.8 months, with a median of 50 months out
    of 543 offenders."      Accordingly, sentencing Martin within the
    GSR would promote this disparity, whereas imposing a shorter
    term of immurement would partially offset it (and was, in the
    judge's opinion, "just and fair").
    The government appeals this downward departure.
    II.
    Analysis
    We review departure decisions for abuse of discretion.
    See Koon v. United States, 
    518 U.S. 81
    , 96-100 (1996); United
    States     v. Brewster, 
    127 F.3d 22
    , 25 (1st Cir. 1997).              Our
    precedents     contemplate   a   trifurcated   approach.    "First,    we
    determine as a theoretical matter whether the stated ground for
    departure is permissible under the guidelines.         If the ground is
    theoretically appropriate, we next examine whether it finds
    adequate factual support in the record.          If so, we must probe
    the   degree     of   the    departure   in    order   to   verify    its
    reasonableness."      United States v. Dethlefs, 
    123 F.3d 39
    , 43-44
    (1st Cir. 1997) (footnote and citations omitted).              In this
    instance, we need not go beyond the first facet of the Dethlefs
    inquiry.
    A
    -5-
    Before proceeding to that point, however, we pause to
    consider     the   defendant's    contention    that   the    government
    forfeited the argument that it advances on appeal by failing to
    raise it below.      On the surface, this contention seems potent —
    but the surrounding circumstances dissipate its force.
    A sentencing court has an obligation to give reasonable
    notice that it is contemplating a departure.              See Burns v.
    United States, 
    501 U.S. 129
    , 138-39 (1991).            This obligation
    applies not only to upward departures, as was the case in Burns,
    but   also    to   downward   departures.      See   United   States   v.
    Pankhurst, 
    118 F.3d 345
    , 357 (5th Cir. 1997).          Here, the record
    reveals that the sentencing court neglected to provide the
    government with adequate notice of its contemplated downward
    departure.
    The defendant questions whether this is so, adverting
    to a pretrial conference held on December 21, 1998, in which
    Judge Young mentioned the dormancy of the Sentencing Commission,
    expressed concern about the status of the guidelines, and told
    the parties that he intended to obtain some sentencing data from
    the chief probation officer.         We reject the suggestion that
    these comments constituted adequate notice of a contemplated
    departure.
    -6-
    In the first place, the judge's remarks were made
    almost five months before the defendant changed his plea and
    some nine months before the disposition hearing.                                The record
    reveals no continuing dialogue during the interim.                               Moreover,
    the presentence investigation report made no mention of this (or
    any other) possible basis for departure.                        On these facts, we do
    not    think    that    the      prosecutor        reasonably       could       have       been
    expected to divine an intention to depart despite the court's
    evident discomfiture with the Sentencing Commission's status.
    The judge's ruminations at the pretrial conference — ruminations
    that    he   himself       described        as     "only       academic"    —    may       have
    adumbrated,      but    certainly           did    not     articulate,      a        coherent
    rationale for departure.
    If more were needed — and we doubt that it is — the
    statistics upon which the judge rested the departure were not
    furnished      to    the    prosecution            at    any     time   prior        to    the
    disposition hearing.             This was too late:               a sentencing court
    must give fair warning not only of the rationale for a possible
    departure      but   also       of   the    facts       that    undergird       it    in   the
    particular instance.            See United States v. Morris, 
    204 F.3d 776
    ,
    778 (7th Cir. 2000).                 Here, the court's introduction of a
    substantial      body      of    new       data    at    the     disposition          hearing
    contravened its obligation to afford the parties reasonable
    -7-
    notice of what it envisioned as departure-justifying facts.                  See
    
    id. Given this
    chronology of events, we are constrained to
    conclude that the district court failed to comply with Burns.
    Next, we turn to the question of remedy.                 In some
    circumstances,       the   omission    of    a    departure     warning    might
    engender a remand for further proceedings.                Here, however, such
    a course would unduly prolong matters without any corresponding
    gain.      The government's objection to the departure is purely
    legal in nature, the parties have fully briefed the merits, and
    supplementary factfinding is not indicated.               As long as fairness
    concerns are not compromised, courts should try to be practical.
    In the circumstances of this case, it makes sense to treat the
    lower      court's   failure    to    give       notice    as   excusing     the
    government's procedural default and rendering the departure
    decision ripe for appellate review.2               Accord United States v.
    Bartsma, 
    198 F.3d 1191
    , 1197-99 (10th Cir. 1999).
    B
    Having vaulted this procedural hurdle, we repair to the
    first prong of the         Dethlefs inquiry.         A court may impose a
    2
    We hasten to add that the error of which the government
    complains is plain, and thus warrants correction whether or not
    preserved. See United States v. Mangone, 
    105 F.3d 29
    , 35 (1st
    Cir. 1997); see also United States v. Torres-Rosa, 
    209 F.3d 4
    ,
    8 (1st Cir. 2000) (confirming applicability of plain error
    doctrine in sentencing appeals).
    -8-
    sentence outside the GSR if "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."                          18 U.S.C.
    § 3553(b).      To determine whether a circumstance was adequately
    considered     by   the    Commission,       the   court      must    examine        "the
    sentencing       guidelines,        policy       statements,         and      official
    commentary of the Sentencing Commission."                   
    Id. These precepts
    are   embedded,      virtually      word    for    word,      in   the       guidelines
    themselves.      See USSG §5K2.0.
    The departure power is intended to ameliorate the
    mechanistic rigidity of the guidelines and to import a modicum
    of    flexibility     into    the    sentencing        calculus.             Thus,    the
    Commission, generally speaking, did "not intend to limit the
    kinds of factors, whether or not mentioned anywhere in the
    guidelines, that could constitute grounds for departure in an
    unusual case."         USSG Ch.1, Pt.A, intro. comment. (n.4(b)).
    Given   this     overall     philosophy,        courts    categorically         reject
    potential grounds for departure at their peril.
    Most general rules admit of exceptions, however, and
    there   are    several     exceptions      to    the   rule    that      a    departure
    theoretically can be grounded on any differentiating factor.
    -9-
    Under these exceptions, sentencing courts are barred from basing
    departures on forbidden factors, factors adequately considered
    by the Commission, factors that lack relevance, and factors that
    offend the framework and purpose of the guidelines.
    The    first   of   these   exceptions    refers      to   certain
    enumerated factors that the Commission has placed beyond the
    pale, e.g., race, sex, national origin, creed, religion, and
    socioeconomic status.       See USSG §5H1.10.    Forbidden factors can
    never serve as the basis for a departure.        See 
    Koon, 518 U.S. at 95-96
    ; United States v. Perez, 
    160 F.3d 87
    , 89 (1st Cir. 1998).
    The   second    exception     flows   directly     from   the    statutory
    requirement that only an "aggravating or mitigating circumstance
    . . . not adequately considered by the [Commission]" can ground
    a departure.    18 U.S.C. § 3553(b).      The third exception, which
    precludes the use of irrelevant factors, can be considered a
    subset of the second.          See, e.g., United States v. Clase-
    Espinal, 
    115 F.3d 1054
    , 1059-60 (1st Cir. 1997) (holding that
    acceding to deportation was a circumstance adequately considered
    by the Commission and therefore irrelevant to the departure
    calculus).     The fourth exception, which proscribes the use of
    considerations that are inconsistent with the structure and
    theory of the guidelines, also bears a family resemblance to the
    second exception.        It is, after all, entirely plausible to
    -10-
    conclude that the Commission "adequately" considers such factors
    by disregarding them, and, indeed, the case law applies these
    last three exceptions without much differentiation amongst them.
    See, e.g., United States v. Snyder, 
    136 F.3d 65
    , 70 (1st Cir.
    1998) (precluding departures based on federal/state sentencing
    disparities); 
    Dethlefs, 123 F.3d at 47
    (stating that considering
    an unconditional guilty plea as a factor supporting departure
    "would intrude upon the Commission's prerogatives and undercut
    the sentencing guidelines"); United States v. Wogan, 
    938 F.2d 1446
    , 1449 (1st Cir. 1991) (precluding downward departures based
    on a perceived need to equalize sentencing disparities between
    similarly situated codefendants); United States v. Aguilar-Pena,
    
    887 F.2d 347
    ,   350-53   (1st   Cir.   1989)   (precluding   downward
    departures based on incidence of crime in different locales).
    In this case, the lower court predicated its downward
    departure on the moribund status of the Sentencing Commission,
    together with the perceived disparity between the defendant's
    GSR and the national median sentence for persons convicted of
    federal drug-trafficking offenses.         Neither element, singularly
    or in combination, can carry the weight of a downward departure.
    The Sentencing Commission certainly did not anticipate
    being without sufficient members to muster a quorum.             See USSG
    Ch.1, Pt.A, intro. comment. (n.4(b)) (explaining that "[t]he
    -11-
    Commission is a permanent body").             But the Commission's lack of
    a quorum, standing alone, is simply irrelevant to an individual
    sentencing decision.       Nothing about vacancies on the Commission
    is   inherently    aggravating     or    mitigating       for    purposes      of   a
    departure assessment.         This circumstance therefore needs help to
    clear   the    relevancy   hurdle:        there    must    be    a   solid,    non-
    speculative reason to believe that the guidelines would apply
    differently had the Commission been at full strength.                       In the
    case at bar, the court's adjuvant reason was itself invalid as
    a matter of law.       We explain briefly.
    Under our jurisprudence, the fact that the national
    median for a broadly stated offense type may be above or below
    a    particular   defendant's     GSR    cannot    be     used   to   justify       a
    sentencing departure.         See United States v. Rodriguez, 
    63 F.3d 1159
    ,   1168    (1st   Cir.    1995)    ("Absent    misapplication        of    the
    Guidelines, the mere fact of disparity is of no consequence.");
    see also United States v. Banuelos-Rodriguez, 
    215 F.3d 969
    , 973-
    78     (9th Cir. 2000) (en banc) (holding that inter-district
    sentencing disparities, arising from differing charging and
    plea-bargaining practices, do not constitute a valid ground for
    departure); 
    Snyder, 136 F.3d at 70
    (similar, in respect to
    federal/state sentencing disparities); 
    Wogan, 938 F.2d at 1449
    (similar, in respect to sentencing disparities between similarly
    -12-
    situated codefendants).        Departures based on these kinds of
    perceived      inequities    "would      contradict      hopelessly     the
    guidelines' structure and theory."         
    Snyder, 136 F.3d at 70
    .
    The   district     court's     statistical      foray     aptly
    illustrates the wisdom of this point.          The base offense level
    for drug trafficking varies from six (for, e.g., less than 250
    grams of marijuana) to thirty-eight (for, e.g., 30,000 kilograms
    of marijuana).     See USSG §2D1.1(c).      For defendants who are in
    criminal history category I, an offense level of six translates
    into a GSR of 0-6 months of imprisonment, whereas an offense
    level of thirty-eight produces a GSR of 235-293 months.                 See
    USSG Ch.5, Pt.A (sentencing table).         This graduated sentencing
    structure reflects the Commission's view that not all drug-
    trafficking offenses are equivalent; some deserve much longer
    sentences than others.        To bring the illustration closer to
    home,   this   structure    strongly   suggests   that    the   Commission
    intended an individual responsible for distributing 119.6 grams
    of cocaine base — like Martin — to serve more time than the
    average drug-trafficking offender.          Using the median sentence
    imposed as a lodestar for routine departures would effectively
    overrule that considered judgment.         Accordingly, this factor is
    ineligible for inclusion in the departure calculus.
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    Since it is clear that the district court would not
    have departed absent reliance on this impermissible datum, we
    could end the analysis here.                Cf. 
    Brewster, 127 F.3d at 30
    (suggesting that departure based on combination of valid and
    invalid grounds must be vacated when "the exclusion of the
    invalid    ground   .     .   .   undermine[s]    the    departure     rationale
    articulated by the sentencing court").                  We continue, however,
    because    we    think    that    identifying     the    deeper   flaw    in   the
    district court's approach may prove worthwhile for future cases.
    The structure and purpose of the guidelines do not
    permit departures based on counterfactual reasoning of the type
    employed    by    the    court     below.      Courts    must   deal    with   the
    guidelines as they stand, without speculation about how the
    Commission might (or might not) choose to modify them at some
    future     date.3        Just     as   statutes   outlive       the    particular
    legislators who enact them (whether or not the legislative body
    is in session), so too the enforceability of the guidelines does
    not depend on the continued functioning of the Commission.                      To
    the contrary, sentencing guidelines, once promulgated, have the
    3At the expense of carting coal to Newcastle, we note that
    there is not so much as a hint in the record that the
    Commission, had it been velivolant, would have reacted to the
    statistics cited by the district court by reducing the penalties
    for crack cocaine — or that, had the Commission done so,
    Congress would have let the revision become law.
    -14-
    force of law, see 18 U.S.C. § 3553(b); USSG Ch.1, Pt.A, intro.
    comment. (n.2), and that circumstance obtains even when the
    Commission is empty.         Thus, departures (up or down) based on the
    inherently speculative possibility that the guidelines might
    under other circumstances be modified are impermissible.
    Martin offers a variation on this theme.                    He suggests
    that the moribund status of the Sentencing Commission left a
    vacuum and permitted the trial judge to fill it.                 We reject this
    surmise.
    In     the    pre-guidelines       era,    judges   made    sentencing
    choices    with    few    restrictions.         But    the     adoption    of    the
    guidelines reined in that largely unbridled discretion.                         From
    that   point      forward,    judges     no    longer     were    permitted       to
    substitute their personal brand of justice for the collective
    wisdom of the Sentencing Commission.                    See United States v.
    Jackson, 
    30 F.3d 199
    , 203 (1st Cir. 1994) (explaining that,
    "absent    specific       circumstances       independently       justifying       a
    departure, a judge cannot sentence outside a properly computed
    sentencing range merely because he believes that the guidelines
    work too severe a sanction in a particular case"); United States
    v. Norflett, 
    922 F.2d 50
    , 53 (1st Cir. 1990) (similar); Aguilar-
    
    Pena, 887 F.2d at 353
    (similar).                The Commission's lack of a
    quorum,    without       more,   does    not     override       this    important
    -15-
    principle.     Consequently, a departure based on the district
    court's substitution of its own judgment for that of the missing
    Commissioners cannot stand.
    There is one more leg to our journey.             In a last-ditch
    effort to salvage the sentence, Martin strives to convince us
    that   we   should    overlook    any   error     because     the   degree    of
    departure was modest (he uses the phrase "de minimis").                We are
    not persuaded.        The first — and most basic — question in a
    departure inquiry is whether the stated ground for departure is
    permissible.       See 
    Dethlefs, 123 F.3d at 43
    .            If the answer to
    that question is in the negative — as it is here — the extent of
    the departure is immaterial.
    III.
    Conclusion
    We need go no further.          Because it was a clear abuse
    of discretion for the district court to depart downward on
    account of Commission vacancies, unrefined summary statistics,
    or a combination of the two, the judgment must be vacated.
    The government's appeal is sustained, the sentence
    appealed    from     is   vacated,   and    the   case   is    remanded      for
    resentencing in accordance with this opinion.
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