United States v. Bobby Lee Dean , 908 F.2d 1491 ( 1990 )

BARRETT, Senior Circuit Judge,

dissenting:

I respectfully dissent.

The majority opinion improperly discredits the district court’s understanding, interpretation, and application of the Sentencing Guidelines. I would affirm the district court’s upward departure in its entirety.

An upward departure is appropriate under U.S.S.G. § 4A1.3, p.s. “when the criminal history category significantly underre-presents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit further crimes.” In United States v. Keys, 899 F.2d 983 (10th Cir.1990), we held that a prison disciplinary record may, in appropriate situations, be a proper basis for an upward departure under § 4A1.3. See also United States v. Harvey, 897 F.2d 1300, 1306 (5th Cir.1990) (“Moreover, this court has repeatedly held that an upward departure ... because a criminal history category does not adequately reflect a defendant’s past criminal history is not improper.... Indeed, the guidelines themselves contemplate that a departure may be warranted for precisely that reason. See U.S.S.G. § 4A1.3.”).

Departure is also permissible when “[t]he 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.... ” 18 U.S.C. § 3553(b). “Circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing.” U.S.S.G. § 5K2.0, p.s. (emphasis supplied).

Although the guidelines were enacted to eliminate the uncertainties and disparities in the former sentencing system in which judges had great discretion, Congress still envisioned that the guidelines would leave considerable discretion in the hands of the sentencing judge. United States v. White, 893 F.2d 276, 278 (10th Cir.1990). Furthermore, “[wjhen a defendant is already in the highest Criminal History Category of VI ..., there is no Guideline procedure a judge can reference to help determine a proper degree of departure ..., [and] the question of degree of departure is solely one of reasonableness.” United States v. Schmude, 901 F.2d 555, 560 (7th Cir.1990). A decision based on reasonableness is afforded a deferential standard of review recognizing that sentencing judges should be given considerable leeway in determining the degree of departure. Id. at 560. Furthermore, “at this early stage in the development of the Guidelines, we should not lightly overturn determinations of the appropriate degree of departure.” United States v. White, supra, at p. 279.

The majority reverses the district court’s upward departure, holding that the district court erred in (a) double counting the current offense of unlawful possession of a weapon as a basis for its upward departure, and (b) failing to explain the reasons for the magnitude of the deviation from the guidelines. The majority finally holds that the district court’s upward departure from 18-24 months to 48 months was unreasonable.

In sentencing Dean the court observed, inter alia:

I don’t need to go over the fact that you have a horrendous record. And the thing that concerns me the most is the fact that much of this record involves a record of violence.

Assault with intent to kill, first degree rape, robbery with a dangerous weapon, possession of a firearm, robbery with a firearm. And then, now, you’re found again in possession of a weapon.

I just don’t think that the guidelines adequately consider the facts of your record of violence and use of weapons and the fact that in spite of that, once again, you had a weapon, a stolen weapon.

So, I think this is grounds for departure. And I will depart on that basis, that the sentencing history just doesn’t adequately reflect the serious of what you are presently involved with. And that is possession of a weapon.

(R., Vol. I, Transcript, p. 6.)

Based on this language, the majority holds that the district court engaged in double counting of the current offense of unlawful possession of a weapon as a basis for departing upward. I strongly disagree. The district court’s observations relative to Dean’s possession of a weapon, were exactly that — merely observations — part of the district court’s narrative detailing Dean's horrendous record of violence. The Pre-sentence Report reflected an adjustment in Dean’s offense level based on his possession of a stolen weapon. That calculation was before the district court at the time of sentencing. It is uncalled for to assume, as the majority does, that the district court double counted Dean’s offense of possession of a weapon.

Unlike the majority, I interpret the district court’s observations as an expression of concern that inasmuch as the guidelines failed to take into consideration Dean’s record of violence, specifically the related cases of assault with intent to kill and robbery with a dangerous weapon (both of which involved stabbings of the victims resulting in hospitalization) that an upward departure was appropriate. Furthermore, although 18 U.S.C. § 3553(c) requires that the court set forth “the specific reasons for the imposition of a sentence different from that prescribed [in the guidelines]” there is no “magic language” mandated under § 3553(c). A district court complies with § 3553(c) by simply giving “the specific reasons” for its departure. I believe that the district court fully complied by pinpointing to Dean’s record of violence in departing upward from the guidelines. The key word in the district court’s narrative is the word “violence.”

The majority’s holding that the district court engaged in double counting, based on the determination that “we have to assume it [current offense] played some role” in the departure because the district court mentioned it, is a serious misinterpretation of the district court’s sentencing language. There is no reason to assume that the current offense played any role in the district court’s determination to depart upward.

I also disagree with the majority’s holdings that the district court failed to explain the magnitude of the upward departure and that the degree of departure was unreasonable.

Under the guidelines, Dean was to be sentenced to 18-24 months. After observing that the guidelines did not adequately consider the facts of Dean’s horrendous record of violence, the district court sentenced Dean to 48 months. I believe that the district court adequately explained the reasons for departure, i.e., Dean’s record of and propensity for violence which had not been adequately considered by the guidelines. Furthermore, “when a defendant is already in the highest Criminal Category of VI ..., there is no Guideline procedure a judge can reference to help determine a proper degree of departure ..., [and] the question of degree of departure is solely one of reasonableness.” United States v. Schmude, 901 F.2d 555, 560 (7th Cir.1990).

I would hold that the departure was not unreasonable based on Dean’s history of violence and the fact that the two particularly violent crimes had not been considered under the guidelines.