United States v. Searcy , 132 F.3d 1421 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-8124
Non-Argument Calendar
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D. C. Docket No. 1:96-CR-285-1-GET
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DUMANIKA SHAMON SEARCY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(January 14, 1998)
Before EDMONDSON, BLACK and HULL, Circuit Judges.
PER CURIAM:
Dumanika Searcy appeals the district court’s decision to
deny his motion to depart downward, under U.S.S.G. § 5K2.0,
on the ground that he might have received a lower sentence in
state court for the same crime. Applying such a departure
would undermine the nationwide uniformity that Congress
sought to ensure when it promulgated the sentencing
guidelines; so, we adopt the same standard as four other
circuits deciding against this kind of departure. Because the
district court correctly refused to depart from Searcy’s
applicable guidelines range, we affirm.
After DeKalb County police arrested Searcy on
outstanding warrants, and discovered 59.9 grams of crack
cocaine on him, Searcy, in federal court, pled guilty to
possession with intent to distribute cocaine (Base). Before
sentencing, Searcy submitted a motion for downward
departure, arguing that he “should not have been singled out
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from the great majority of cases for prosecution and sentence
under Federal Law.” Therefore, Searcy argued that the district
court should depart downward to about the sentence he would
have received under Georgia law.
On appeal, Searcy argues that there was no federal task
force, no fellow defendants involved in federal prosecution, and
no federal money involved in this case and, therefore, that this
case should only have been prosecuted at the state level.
Searcy contends that, because this situation was not
considered by the sentencing guidelines, there existed in his
case a circumstance “not adequately taken into consideration
by . . . the guidelines,” U.S.S.G. § 5K2.0.
According to Searcy, the district court judge should have
considered a downward departure. In so doing, the district
judge should have considered that this case fell under the
exception that, when a case is different, to an unusual degree,
from the “heartland” of cases covered by the guidelines, the
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sentencing court should depart from the guidelines. Searcy
argues that the court abused its discretion in finding that it was
precluded as a matter of law from considering a downward
departure on the grounds argued by Searcy. For background,
see Koon v. United States, 116 S.Ct. 2035, 135 L.Ed.2d 392(1996).
The district court decided that it did not possess the legal
authority to depart downward in this case. Under United States
v. Williams, 948 F.2d 706, 708 (11th Cir. 1991), we review the
district court’s conclusion of law.
In Koon, the Supreme Court set out questions to consider
when deciding whether to depart from the guidelines
established by the Sentencing Commission. These questions
are the ones mentioned: (1) what features of the case make it
outside the guidelines’ “heartland” and make it special or
unusual? (2) did the Commission forbid departure based on
those features? (3) if not, did the Commission encourage
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departure based on those features? and (4) if not, did the
Commission discourage departure based on those features?
116 S.Ct. at 2045.
Because the guidelines give no specific comments on
federal and state sentencing differences, we must decide, under
Koon’s first factor, whether this case falls outside the
guidelines’ “heartland.” While this issue is one of first
impression for us, other circuits already have ruled that a
prosecutor’s choice of federal rather than state jurisdiction is
not a permissible circumstance to consider for departing
downward. See United States v. Haynes, 985 F.2d 65, 69 (2d Cir.
1993); United States v. Deitz, 991 F.2d 443, 447 (8th Cir. 1993)
(theoretical sentence defendant might have received in state
court no basis for departure); United States v. Sitton, 968 F.2d
947, 962 (9th Cir. 1992) (no departure available because of
disparities between state and federal sentencing regimes);
United States v. Dockery, 965 F.2d 1112, 1118 (D.C.Cir. 1992)
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(allowing departures for other forum’s “transferred” defendants
would defeat the standardizing purpose of the sentencing
guidelines).
The Commission did consider that the ‘charge offense’
system gave the prosecutor influence on sentencing but
decided that the prosecutor’s ability to increase a sentence
would be limited by the defendant’s actual conduct. See
U.S.S.G. Ch.1, Pt.A, 4(a). Searcy could not have been charged
if there was not a prima facie case allowing the prosecutor to
file in federal court.
We follow the other circuits. Allowing departure because
the defendant could have been subjected to lower state
penalties would undermine the goal of uniformity which
Congress sought to ensure: federal sentences would be
dependent on the practice of the state within which the federal
court sits. Because the district court correctly refused to depart
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from Searcy’s applicable guidelines range on the basis of the
punishment that would be imposed in state court, we affirm.
AFFIRMED.
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