United States of America, Appellee-Cross-Appellant v. Elias Farah, Defendant-Appellant-Cross-Appellee , 991 F.2d 1065 ( 1993 )

.GEORGE C. PRATT, Circuit Judge,

dissenting in part:

With the advent of the sentencing guidelines, judicial discretion has been replaced by prosecutorial discretion. United States v. Mobley, 956 F.2d 450, 461 (3rd Cir.1992) (Mansmann, J., dissenting) (“mechanical effect of the Guidelines * * * leaves no discretion for the district court”). Courts sentencing under the guidelines, however, are supposed to “retain an important measure of individualized discretion * * * to depart from the sentence mandated by the Guidelines.” United States v. Fernandez, 877 F.2d 1138, 1144 (2d Cir.1989). Decisions such as the majority’s belie this claim. Despite the district court’s supposedly “wide discretion” to depart, see id., in this case, the court’s minimal downward departure based on the defendant's unusual position is overturned.

This case is not atypical of the apparent lack of judgment often revealed when inexperienced prosecutors flex their newfound power under the guidelines. United States v. Harrington, 947 F.2d 956, 966 (D.C.Cir.1991) (Edwards, J., concurring) (guidelines transferred discretion from “impartial arbiters” to “less neutral parties who rarely are called to account for the discretion they wield”). Five defendants were charged with various counts of narcotics distribution and money laundering. All of them pled guilty and were sentenced to substantial terms of imprisonment. All five defendants appealed. Incredibly, rather than simply asking us to affirm, the government sought a remand for the sole purpose of increasing one defendant’s offense level from 36 to 37; 15 years in jail is not enough — it must be 17 years! Even more incredibly, the majority remands.

The majority asserts that all of the factors relied on by the district court to depart “either were adequately considered by the Commission or were contradicted by the court’s own findings of fact.” In discussing the district court’s fourth justification, Farah’s low likelihood of recidivism, the majority holds that this was an impermissible basis for an offense-level departure, because the propensity for recidivism “is a characteristic of the defendant rather than of his conduct,” and that only conduct should be considered here. But this rigid categorization is unsupported by either the guidelines or the caselaw.

First, United States v. Campbell, 967 F.2d 20 (2d Cir.1992), cited by the majority, actually holds that some factors are proper bases for both “dimensions.” Id. at 24-25 (“prior act is relevant to determining both the defendant’s criminal history category and the offense level for the charged conduct”).

Even more significantly, the guidelines themselves mention likelihood of recidivism both in the context of determining an offender’s criminal history category, see U.S.S.G. § 4A1.3, p.s. (“likelihood that the defendant will commit further crimes”), and in the context of determining an offender’s role in the offense, see U.S.S.G. § 3B1.1, comment, (n.3) (managers and supervisors are “more likely to recidivate”). If the guidelines consider recidivism in both contexts, why can’t the district court do so as well? Moreover, while the guidelines’ consideration of recidivism in the context of criminal history may be adequate, their discussion of how this factor impacts on a defendant’s role in the offense is fleeting at best and thus leaves ample room for departure in appropriate cases.

The sentencing judge here noted that the guidelines’ required enhancements for playing a leadership role in the offense are premised in part on the notion that leaders would be more likely to recidivate. Judge Dearie’s assessment of Farah “strongly indicate^] that Farah was less likely to ‘reci-divate’ than most of his codefendants”, and this possibility was not adequately considered by the commission. The relevant commentary focuses on offenders who are “more likely” to recidivate, not those who are less likely. In short, it was not “impermissible”, as the majority holds, for Judge Dearie to grant this modest downward departure on the basis that Farah showed-little likelihood of recidivism.

Our rejection of the district court’s well-articulated reasons for this one-level downward departure simply further undermines what little discretion has been left to a sentencing judge. The guidelines nominally invite sentencing judges to depart in unusual cases, such as those “to which a particular guideline linguistically applies but where conduct significantly differs from the norm.” U.S.S.G. Ch. 1, Pt. A, 4(b), p.s. We should not be discouraging district courts from accepting that invitation.

I dissent from the remand.