United States v. Washington ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4915
KERVIN O'KEITH WASHINGTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert Earl Maxwell, Senior District Judge.
(CR-96-7-2)
Submitted: October 31, 1997
Decided: January 15, 1998
Before ERVIN and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated, and remanded by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
Gregory A. Elam, Elkins, West Virginia, for Appellant. William D.
Wilmoth, United States Attorney, Sherry L. Muncy, Assistant United
States Attorney, Elkins, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Kervin O'Keith Washington pled guilty to being a felon in posses-
sion of a firearm, 18 U.S.C.A. § 922(g)(1) (West Supp. 1997), and
received a sentence of 120 months imprisonment. He appeals his sen-
tence, arguing that the district court clearly erred in denying him an
adjustment for acceptance of responsibility. See U.S. SENTENCING
GUIDELINES MANUAL § 3E1.1 (1995). He also contends that the district
court failed to recognize its authority to depart downward for lesser
harms, USSG § 5K2.11, p.s., and erred in refusing to modify his bond
conditions to permit him to cooperate with the government in a drug
investigation. Finally, Washington maintains that his sentence vio-
lates the Eighth Amendment. We affirm in part, but vacate the sen-
tence and remand for resentencing.
Washington admitted pawning the .25 caliber pistol which he was
charged with possessing. However, he gave conflicting accounts of
who owned the firearm. He also incurred a new charge of driving on
a suspended license while free on bond before he was sentenced, and
he tested positive for cocaine use on three occasions. The district
court may consider new criminal conduct, even when it is unrelated
to the offense of conviction, in determining the sincerity of the defen-
dant's acceptance of responsibility. See United States v. Ceccarani,
98 F.3d 126, 129-30 (3d Cir. 1996) (post-offense conduct can shed
significant light on sincerity of defendant's claimed remorse), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.
96-7616); United States v. Byrd, 76 F.3d 194, 197 (8th Cir. 1996);
United States v. McDonald, 22 F.3d 139, 142-44 (7th Cir. 1994);
United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994), cert. denied,
___ U.S. ___, 66 U.S.L.W. 3255 (U.S. Oct. 6, 1997) (No. 96-2025);
United States v. O'Neil, 936 F.2d 599, 600-01 (1st Cir. 1991); United
States v. Watkins, 911 F.2d 983, 985 (5th Cir. 1990); but see United
States v. Morrison, 983 F.2d 730, 733-35 (6th Cir. 1993) (new unre-
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lated criminal conduct should not be considered). We are persuaded
by the weight of authority and find that the court did not clearly err
here.
Next, Washington contends that the district court mistakenly
believed that it lacked authority to depart on the ground that he
pawned the pistol to buy food for his family. Our review is de novo.
See United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992). A depar-
ture is encouraged under the guidelines when the sentencing court
finds that the defendant committed the crime in order to avoid a per-
ceived greater harm, see USSG § 5K2.11, and the court was well
aware of this fact. Washington bases his argument on the court's
statement that, although his offense was not the violent kind that Con-
gress may have had in mind, it was "within the four corners of the
congressional statute and the Court must be bound by that." The court
went on to add that, because of the nature of the offense, it would not
upwardly depart pursuant to USSG § 4A1.3, p.s., as the probation
officer recommended. However, because of Washington's back-
ground and criminal history, the court found that a downward depar-
ture was not appropriate. We find that the court was aware of its
authority to depart for lesser harms and properly exercised its author-
ity not to depart.
Washington also argues that the district court erred when it refused
to modify his bond conditions to permit him to associate with drug
traffickers so that he could cooperate with the government in a drug
investigation, thus precluding him from earning a downward depar-
ture for substantial assistance under USSG § 5K1.1. He relies on
United States v. Goossens, 84 F.3d 697, 703 (4th Cir. 1996), in which
this court found that the district court abused its discretion when it
prohibited the defendant from cooperating with authorities as a condi-
tion of bond and refused to consider his request for a downward
departure on that basis under USSG § 5K2.0.
Here, too, the government moved for modification of Washington's
bond to enable the government to gain evidence about drug dealing
in a remote area where the government had been unsuccessful. Wash-
ington's case differs from Goossens because Washington did not
request a downward departure on the ground that he had been pre-
vented from cooperating. However, Washington preserved his objec-
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tion to the court's denial of the government's first request for
amendment of the bond conditions by joining in the government's
request for reconsideration of that order.
To insure a defendant's appearance as required or to protect the
public safety, the district court has statutory authority to prohibit a
defendant who has been released pending trial to abide by restrictions
on personal associations, as the court did here. See 18 U.S.C.A.
§ 3142(c)(1)(B)(iv) (West Supp. 1997). A prohibition on a defen-
dant's cooperation with law enforcement officials is not appropriate
absent extraordinary circumstances which make such a condition
"truly necessary to assure a defendant's appearance or protect the
public safety." Goossens, 84 F.3d at 703. In Goossens, the court pro-
hibited the defendant from making contact with others involved in
illegal activity out of a belief that cooperation of this kind would
retard the defendant's rehabilitation. In so doing, the court "impose[d]
itself in matters that are not properly within its province." Goossens,
84 F.3d at 704.
In Washington's case, the court did not explain the basis for its
decision to deny the government's motion for amendment of bond
conditions. However, in both cases, the effect was the same. Like the
defendant in Goossens, Washington was prevented from cooperating
in the only manner in which he could assist the government and earn
a substantial assistance departure. Under Goossens, the court abused
its discretion unless its decision was grounded in some extraordinary
circumstance which is not apparent from the record. Consequently,
we vacate the sentence and remand for further proceedings. On
remand, the district court should consider whether a departure is war-
ranted because Washington was prohibited by the court from cooper-
ating with law enforcement authorities. The inquiry should be
"whether [the] defendant's cooperation likely would have been such
that the Government would have moved for a departure based upon
substantial assistance had the defendant's cooperation not been fore-
closed improperly." Id.Last, Washington argues that the sentence imposed was dispropor-
tionate to his offense and thus violates the Eighth Amendment.
Because Washington will be resentenced, we need not reach this
issue. However, we note that extensive proportionality review is not
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appropriate for sentences of less than life without possibility of
parole. See United States v. D'Anjou, 16 F.3d 604, 613 (4th Cir.
1994). Washington's ten-year sentence (the statutory maximum) was
within his guideline range and was not disproportionate to the crime.
We therefore affirm the district court's findings in part but vacate
the sentence and remand for resentencing in accordance with this
opinion. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED IN PART, VACATED, AND REMANDED
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