United States v. Sclamo ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1089
UNITED STATES OF AMERICA,
Appellant,
v.
JOSEPH SCLAMO, JR.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Boudin, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Brien T. O'Connor, Assistant United States Attorney, with whom A.
John Pappalardo, United States Attorney, was on brief for appellant.
James R. Lemire for appellee.
July 7, 1993
COFFIN, Senior Circuit Judge. This is a governmental appeal
from a sentence in which the district court departed downward
from the Sentencing Guidelines. The court determined that
defendant's family situation revealed an aggravating circumstance
making this an "unusual case" not contemplated by the Guidelines.
Applying the modified standard of review for such cases recently
announced in United States v. Rivera, Nos. 92-1749, -2167, slip.
op. (1st Cir. June 4, 1993), we affirm.
Defendant Joseph Sclamo, Jr. was arrested for attempting to
deliver nine and one-half ounces of cocaine to undercover
agents.1 He pled guilty to a single count of possession with
intent to distribute, in violation of 21 U.S.C. 841(a)(1).
Under the Guidelines, Sclamo's offense level was 17, and his
criminal history category was II. The district court, however,
treated Sclamo's criminal history category as I because it
considered the higher category to overrepresent the severity of
defendant's criminal history. The government recommended a 28-
month sentence, with 36 months of supervised release, and an
assessment of $50.
Sclamo requested a downward departure based on his domestic
situation. For some three years, he had been living with a woman
and her two children and had developed a special and crucially
1 Sclamo's arrest stemmed from his involvement in a DEA
operation targeting his father. The father was charged with two
counts of drug offenses, to which he pled guilty, and was
sentenced with defendant. The father received a sentence of 54
months of imprisonment, 36 months of supervised release, and an
assessment of $100.
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important relationship with the twelve-year-old son, James.
Sclamo urged that his presence at home was vital to James, who
was in need of his continuing companionship and guidance. Two
letters from James's psychologist were submitted with Sclamo's
motion.
According to the first letter, written in April, 1992, since
age 5, James continually had been abused physically by his
alcoholic biological father.2 James began to display aggressive
and disruptive behavior at home and in school and was placed in a
behavior disorder class. Eventually, he was diagnosed as
possessing "attention deficit hyperactivity disorder" and was
referred to the psychologist for individual psychotherapy on a
weekly outreach basis to help him develop "more effective coping
skills."
James's mother divorced his father in 1989. In the same
year Sclamo began to live with James's family. The psychologist
saw Sclamo weekly, giving him and James's mother instruction in
parenting skills and behavior modification techniques. The
psychologist praised Sclamo as "very supportive, concerned, and
mature in his judgement and follow through." The psychologist
stated that James now views Sclamo as his stepfather, with whom
he has developed a "warm and trusting relationship . . .
resulting in a dramatic reduction in aggressive acting out," an
absence of school suspensions, and improved grades.
2 James's father eventually was subjected to a restraining
order and then given a two-year suspended sentence for abuse.
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The psychologist concluded that Sclamo played a major
positive role in James's therapy and that his continued presence
was "necessary for James's increasing progress." The
psychologist warned that Sclamo's "removal from the family would
rob all members of a critical source of affection and positive
care and clinically could trigger a major regression in James's
stability and emotional development."
Six months later, a month before the sentencing hearing, the
psychologist reported in a second letter that James's progress
both at home and at school was continuing. James was now in a
"main stream class." The psychologist credited Sclamo's "ongoing
and persistent efforts . . . to set clear and firm limits with
James." Noting that Sclamo "has played a tremendous role in
James's progress and continues to be the only available resource
for positive male bonding," the psychologist recommended that
defendant be allowed to continue to live at home, where he could
serve as a "positive father surrogate for this 12 year old boy
who is most needy for continued positive guidance and
companionship to insure appropriate maturational development."
Based on this information, the court concluded that a
downward departure was appropriate. It recognized "that
ordinarily family circumstances do not constitute a basis for
downward departure" but felt that precedents in which courts have
departed downward "are very much like this one in which there is
evidence of an exceptional kind of relationship and an
exceptional risk of harm to a child if that relationship is
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broken." Tr. at 22-23. The court further credited the two
reports from the psychologist as constituting
a very compelling set of evidence about a personal
relationship that I don't think there's any reason to
believe arose with any purpose of escaping criminal
responsibility but has occurred independently of that,
and it is, I think, a circumstance beyond in degree and
nature those that were taken into account in the
guidelines.
Id. at 22. It accordingly sentenced Sclamo to three years'
probation, with confinement at home for six months, subject to
permission from the Chief Probation Officer to leave home for
work, shopping, and medical attention.
On appeal, the government contends that family relationships
are not a basis for departure. It notes that imprisonment
necessarily disrupts such relationships and that the sentencing
guidelines provide that "[f]amily ties and responsibilities . . .
are not ordinarily relevant" in determining whether departure is
appropriate. See USSG 5H1.6. The government further cites a
number of cases in which this court has refused to allow downward
departures based on family circumstances. See, e.g., United
States v. Carr, 932 F.2d 67, 72 (1st Cir. 1991).
The government also alleges that, even if departure is
permitted based on family ties, Sclamo's situation is not
sufficiently compelling to warrant leniency. The government
points out that Sclamo is not James's biological father and that
their relationship has not been longstanding. Additionally, it
urges that defendant's involvement in distributing cocaine in the
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fall of 1989 justified the recommended sentence of 28 months'
incarceration.
The resolution of this appeal is governed by our recent
pronouncements in United States v. Rivera. As Rivera makes
clear, the Guidelines say only that family circumstances do not
ordinarily warrant departure. See slip op. at 12 (citing
U.S.S.G. Ch. 5, Pt. H). Thus, while discouraging departures on
this ground, the Guidelines recognize that "special, unusual or
other-than-ordinary circumstances," id. at 16, may be considered
as a basis for departure. Indeed, our earlier cases do not hold
that district courts lack authority to depart on this ground but
merely illustrate circumstances not sufficiently extraordinary to
warrant departure. See, e.g., United States v. Rushby, 936 F.2d
41, 43 (1st Cir. 1991).
We briefly recapitulate the approach Rivera suggests when a
departure from the Guidelines is requested. The district court
first should ask: "What features of this case, potentially, take
it outside the Guidelines' ``heartland' and make of it a special,
or unusual, case?" Rivera, slip op. at 15. In cases like this,
where the special features are discouraged, the court should "go
on to decide whether the case is nonetheless not ``ordinary,'
i.e., whether the case differs from the ordinary case in which
those features are present." Id. If the case is not ordinary,
the court then may consider departure, deriving whatever guidance
it can from the Guidelines, but, ultimately, "drawing upon
experience and informed judgment," id. at 17. If the court
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decides to depart, "it must explain how the case (compared to
other cases where the reason is present) is special. . . ." Id.
at 21 (emphasis omitted).
As for our role in reviewing such departure decisions,
Rivera modified our prescriptions in United States v. Diaz-
Villafane, 874 F.2d 43 (1st Cir. 1989). In Diaz-Villafane, we
said that review of the district judge's determination that
circumstances were "of a kind or degree that they may
appropriately be relied upon to justify departure" was
"essentially plenary," id. at 49. Following Rivera, however, we
now "review the district court's determination of unusualness
with full awareness of, and respect for, the trier's superior
feel for the case, . . . not with the understanding that review
is plenary." Rivera, slip op. at 23-24 (quoting Diaz-Villafane,
874 F.2d at 50) (internal quotation marks omitted).
With this background and without repeating the essential
facts in the two reports credited by the district court, we see a
number of special factors that transform Sclamo's situation into
an extraordinary one meriting the downward departure. See, e.g.,
United States v. Johnson, 964 F.2d 124, 129 (2d Cir. 1992)
(affirming departure for defendant who "faced more than the
responsibilities of an ordinary parent, more even than those of
an ordinary single parent" as sole caregiver of 4 very young
children); United States v. Pena, 930 F.2d 1486, 1495 (10th Cir.
1991) (affirming departure to avoid placing infant children at
risk).
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As an initial matter, we cannot fault the district court's
conclusion that the psychological treatment and observations of
James were not contrived or fabricated to assist Sclamo. James's
referral for individual psychotherapy, made by a case worker with
no connection to defendant, predated the circumstances giving
rise to this case. Moreover, the psychologist's reports are
based on a long history of personal observation, interaction, and
treatment not only of James but of defendant as well. The
district court, therefore, was entitled to credit the
psychologist's professional judgment of the critical and unique
role played by defendant in James's treatment.
Turning to the family ties at issue, we think that Sclamo's
situation is readily distinguished from ordinary cases, where one
can only speculate about the stresses that incarceration of a
family member might cause. In this case, there is evidence not
only that James already suffers from a clinical disorder, but
that his condition will deteriorate if defendant is incarcerated.
Sclamo has a track record of steady and effective support and
guidance of James over a lengthy period during which Sclamo was
both instructed and monitored by a psychologist. The
psychologist's prognosis that James would risk regression and
harm if defendant were incarcerated amply supports the district
court's determination that Sclamo's relationship to James is
sufficiently extraordinary to sustain a downward departure.
We therefore think that, under our present more restricted
standard of review, the decision made by the district court must
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be affirmed. We acknowledge that our own analysis of the
circumstances setting this case apart from the ordinary case is
more lengthy and detailed than that of the district court. In
future cases we would expect, in line with our general discussion
in Rivera, a very deliberate discussion of the factors making the
case unusual. But we see no purpose served in this case, decided
below without the benefit of our recent guidance, in remanding to
make explicit what was implicit.
Affirmed.
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