United States v. Crass , 129 F. App'x 415 ( 2005 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                          APR 12 2005
    TENTH CIRCUIT                       PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    No. 03-3241
    v.                                           (D.C. No. 02-CR-10182-01-JTM)
    (Kansas)
    STACIE K. CRASS,
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before SEYMOUR, Circuit Judge, PORFILIO, Senior Circuit Judge, and
    MURPHY, Circuit Judge.
    Stacie Crass pled guilty to one count of illegal use of a communication
    device to facilitate the commission of a felony in violation of 
    21 U.S.C. § 843
    (b).
    Based on a total offense level of 29 and criminal history category of II, Ms.
    Crass’ sentencing guidelines range was 97 to 121 months of imprisonment.
    Because the statutory maximum penalty for a violation of 
    21 U.S.C. § 843
    (b) is
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, or collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    four years, Ms. Crass’ guideline range was capped at forty-eight months pursuant
    to U.S.S.G. § 5G1.1(a). The district court sentenced Ms. Crass to twenty-one
    months incarceration, departing downward from the guidelines sentence on two
    grounds: (1) exceptional post-offense rehabilitation and (2) diminished capacity
    as a result of her unmedicated bi-polar condition. The government appeals. We
    reverse in part and remand for resentencing.
    After noticing some suspicious activity involving a Jeep and a Pontiac,
    police officers stopped the Jeep, which was driven by Ms. Crass, for traffic
    violations. Jonas Crass, her husband, was a passenger in the Jeep. After citing
    Ms. Crass for traffic infractions, officers asked for consent to search the vehicle.
    When Ms. Crass refused, the officers summoned a drug dog, which alerted to the
    outside of the Jeep. Mr. and Ms. Crass were placed in custody and transported to
    police headquarters. During a police interview, Mr. Crass admitted to selling two
    pounds of marijuana to Robert Rotramel the evening of the traffic stop. The
    Pontiac was located later and two pounds of marijuana were found inside.
    Ms. Crass confirmed her husband’s version of events. She also informed
    the police there was approximately one-half pound of methamphetamine at her
    house, left there by her husband’s friend, Robert Montoya, who commonly sold
    methamphetamine. The officers obtained a waiver to search the Crasses’ home
    and discovered 67.04 grams of actual methamphetamine on the premises. Ms.
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    Crass subsequently pled guilty to one count of illegal use of a communication
    device to facilitate the commission of a felony. In sentencing her, the district
    court departed downward to a sentence of twenty-one months incarceration.
    Prior to the Supreme Court’s decision in United States v. Booker, 
    125 S. Ct. 738
     (2005), sentencing courts could depart from the applicable guideline range in
    criminal cases if “the court [found] that there exist[ed] 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.” 
    18 U.S.C. § 3553
    (b)(1). In a pre-Booker review of a sentencing departure, we apply
    the four steps outlined in United States v. Jones, 
    332 F.3d 1294
    , 1299-1300 (10th
    Cir. 2003). 1 First, we ascertain whether the court set forth its specific reasons for
    departure. 
    18 U.S.C. § 3742
    (e)(3)(A); 
    id.
     § 3553(c)(2). Second, we consider, de
    novo, “whether the factors the district court relied upon advance the objectives set
    forth in section 3553(a)(2)” and ensure that the court’s reliance on those factors
    did not violate any specific prohibition in the guidelines. Jones, 
    332 F.3d at 1299
    . Third, we determine, de novo, whether the factors the district court relied
    1
    Ms. Crass argued in a F ED . R. A PP . P. 28(j) letter that we should conduct a
    reasonableness review pursuant to United States v. Booker, 
    125 S. Ct. 738
     (2005),
    and affirm her sentence. This court does not consider arguments raised for the
    first time in 28(j) letters. See United States v. Sanchez-Cruz, 
    392 F.3d 1196
    , 1201
    (10th Cir. 2004) (declining to consider Blakely argument first raised in a 28(j)
    letter); United States v. Lindsey, 
    389 F.3d 1334
    , 1335 n.1 (10th Cir. 2004) (same).
    -3-
    upon are “authorized under section 3553(b)” and “justified by the facts of the
    case.” Id. at 1299-1300 (citations omitted). Finally, we review the degree of
    departure for reasonableness and do not reverse absent an abuse of discretion. Id.
    at 1300.
    In its Statement of Reasons, the district court concluded that Ms. Crass’
    conduct fell sufficiently outside the applicable guideline heartland to warrant
    downward departures. The court satisfied the requirement of setting forth its
    reasons for departure with the following specific reasons: (1) Ms. Crass’
    “exceptional rehabilitative efforts” and (2) her “diminished capacity at the time
    the offense was committed.” Aplt. App., vol. I at 115. The government does not
    contend the factors relied on by the district court would never be valid grounds
    for a departure. It asserts instead that the factors are not justified by the record in
    this case. We agree insofar as the departure was based on exceptional post-
    offense rehabilitative efforts.
    The government points out that “post-offense rehabilitation is accounted for
    in the context of an acceptance of responsibility adjustment under U.S.S.G. §
    3E1.1, comment. (n.1(g)), and thus may not serve as a basis for departure unless it
    is present to an exceptional degree.” United States v. Benally, 
    215 F.3d 1068
    ,
    1075 (10th Cir. 2000); see also United States v. Whitaker, 
    152 F.3d 1238
    , 1240
    (10th Cir. 1998) (“post-offense rehabilitation can only be an appropriate ground
    -4-
    for downward departure if the efforts are of a magnitude that the defendant’s
    situation cannot be considered typical of those where an acceptance of
    responsibility adjustment is granted”). Thus, we must determine whether the
    record supports the court’s conclusion that Ms. Crass’ rehabilitation was
    sufficiently exceptional to warrant a departure from the mandatory guidelines.
    In assessing Ms. Crass’ post-offense rehabilitation, the district court relied
    on two reports, one from the Women’s Recovery Center of Central Kansas and
    one from the Wichita Area Sexuality Assault Center. The former, entitled
    “Footprints Program Progress Report,” detailed that Ms. Crass had “been using
    some type of substance for approximately twenty years, with only brief periods of
    abstinence.” Aplt. App., vol. I at 51. Ms. Crass’ counselor noted that she attends
    weekly group counseling and at least three weekly twelve-step meetings. 
    Id.
     The
    report stated that Ms. Crass was becoming less self-centered, improving her
    parenting skills, gaining empathy for her peers, and working on avoiding
    manipulative patterns. Id. at 51-52. The report concluded: “If [Ms. Crass]
    continues to make recovery a priority and work on her core issues, she has a good
    chance of succeeding in recovery. Her prognosis is currently Fair to Guarded.”
    Id. at 52. The Wichita Area Sexual Assault Center letter added that Ms. Crass
    “has been attending support group and one-on-one crisis counseling sessions.” Id.
    at 53. In support group, she “has participated and provided valuable insight to
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    members. In one-on-one crisis counseling sessions, she is making many
    discoveries about the link between addiction and sexual violence.” Id.
    The district court’s decision to depart downward on Ms. Crass’ sentence
    was based on her “complete detoxification and her recovery from continuing drug
    addiction,” id. at 100, and, indeed, Ms. Crass’ post-offense behavior has been
    laudable. The government, however, emphasizes that Ms. Crass’ participation in
    the substance abuse program was ordered as a condition of her pre-trial release.
    Id. at 24. Moreover, Ms. Crass was instructed to “refrain from any use of
    alcohol” or other controlled substances. Id. She was subject to random drug and
    alcohol testing and screening, and she was told that:
    [a] violation of any of [her] conditions of release may result in the
    immediate issuance of a warrant for [her] arrest, a revocation of release, an
    order of detention, and a prosecution for contempt of court and could result
    in a term of imprisonment, a fine, or both.
    Id. at 25. The Women’s Recovery Center of Central Kansas’ “Client Guidelines
    and Behavioral Expectations” required all clients to “be completely drug free
    during treatment . . . Use of alcohol or other drugs of any kind is prohibited.” Id.
    at 11. A violation of the Women’s Recovery Center guidelines would “result in
    an Administrative Discharge.” Id.
    In sum, Ms. Crass was released on the condition that she participate in an
    inpatient or outpatient substance abuse therapy and counseling program and be
    subject to random drug and alcohol screening. She has certainly complied with
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    the formal requirements of the program; she has attended her family and group
    counseling sessions and she has remained drug free and sober. Nonetheless, Ms.
    Crass’s post-arrest behavior reflects little more than her compliance with the
    conditions of her release and the requirements of the Women’s Recovery Center.
    See Benally, 
    215 F.3d at 1076, 1077
     (reversing downward departure where
    defendant’s “post-arrest sobriety reflects little more than his compliance with the
    conditions of his release to a half-way house”). This was simply not enough
    under the mandatory guidelines regime which existed pre-Booker. 2 The
    acceptance of responsibility guideline, U.S.S.G. § 3E1.1 cmt. n.1(g), specifically
    contemplates an adjustment for post-offense rehabilitative effort, and Ms. Crass
    received that adjustment. Absent “additional evidence or explanation as to why
    [Ms. Crass’] rehabilitative efforts went beyond that contemplated by U.S.S.G. §
    3E1.1,” id., we must hold that the district court’s three-level downward departure
    2
    Compare United States v. Kapitzke, 
    130 F.3d 820
    , 823-24 (8th Cir. 1997)
    (approving a downward departure for extraordinary post-offense rehabilitation
    where defendant had voluntarily entered sex offender and chemical dependency
    treatment before he was aware that federal charges would be filed against him;
    “attended some type of therapy or support group almost every night”; “received
    excellent progress reports”; submitted reports that the director of the sex offender
    treatment plan was “extremely impressed” with his efforts and believed that
    defendant had “a high probability of success”; submitted reports that his chemical
    dependency counselor “had never seen a client work harder” than defendant in
    seven years and that defendant’s prognosis was “very good”; and submitted a
    report from his physician that he had “shown an extraordinary desire to recover
    from all of his addictions, as well as an ‘extraordinary willingness to do whatever
    necessary to achieve that end’”).
    -7-
    for her post-arrest behavior was not justified by the facts of this case.
    Because we reverse on the basis of the post-offense rehabilitation departure
    and must remand for resentencing in any event, we need not decide whether the
    district court’s departure on the basis of diminished capacity was warranted. See
    United States v. Cano-Silva, No. 03-4059, 03-4108, 
    2005 WL 698983
    , at *6
    (10th Cir. Mar. 28, 2005) (reversing on one ground and remanding for
    resentencing in light of Booker without addressing second ground). Ms. Crass’
    resentencing proceeding should be conducted pursuant to the Supreme Court’s
    decision in Booker. The district court may determine anew whether Ms. Crass
    was entitled to a downward departure under the guidelines and then “take account
    of the Guidelines together with other sentencing goals” in imposing her sentence.
    Booker, 125 S. Ct. at 764; see also Cano-Silva, 
    2005 WL 698983
    , at *6.
    We REVERSE the decision to depart downward based on extraordinary
    post-arrest rehabilitation and REMAND to the district court with orders to vacate
    the sentence and resentence Ms. Crass consistent with Booker.
    ENTERED FOR THE COURT
    Stephanie K. Seymour
    Circuit Judge
    -8-