United States v. Baird

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
3-19-1997
United States v. Baird
Precedential or Non-Precedential:
Docket 96-1342
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1
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
NO. 96-1342
_____________
UNITED STATES OF AMERICA,
Appellee
v.
JOHN BAIRD,
Appellant
__________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 95-cr-00092-1
__________________________________
Argued: November 6, 1996
Before: BECKER, McKEE, and GARTH, Circuit Judges.
(Filed March 19, 1997)
ELIZABETH K. AINSLIE, ESQUIRE (ARGUED)
Ainslie & Bronson
2630 One Reading Center
1101 Market Street
Philadelphia, PA 19107
Attorney for Appellant
John Baird
MICHAEL R. STILES, ESQUIRE
United States Attorney
WALTER S. BATTY, JR., ESQUIRE
Assistant United States Attorney
Chief of Appeals
WILLIAM B. CARR, JR., ESQUIRE (ARGUED)
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-4476
1
Attorneys for Appellee
United States of America
______________________
OPINION OF THE COURT
______________________
BECKER, Circuit Judge.
This is a sentencing appeal. Appellant John Baird is a
former Philadelphia police officer who was assigned to the
infamous 5 Squad of the 39th district. The 5 Squad was
responsible for breaking up drug trafficking operations in an
area of Philadelphia in which drug dealing has been epidemic.
Instead of working to uphold the law, Baird, and those of his
police officer colleagues who were also corrupt, systematically
broke it. Over the course of a number of years, and in instances
too numerous to chronicle here, they executed illegal searches,
detained individuals without legal cause, employed excessive
force against detainees, caused the false prosecution of numerous
individuals, and stole money and property from persons they were
investigating. A seven-count indictment details at least forty-
five such instances.
As of this writing, the City of Philadelphia is still
endeavoring to right all the wrongs caused by the 5 Squad.
Victims of 5 Squad corruption have lodged numerous civil suits
against the police department and the city, and settlements are
costing the city large sums. The District Attorney has been
reviewing prosecutions arising from 5 Squad activities. That
2
review has led to the release from prison of a number of innocent
persons whose convictions rested on evidence wrongfully obtained
or fabricated by 5 Squad officers. A recent newspaper article
reported that, as a result of this corruption, the Philadelphia
District Attorney has dismissed 160 cases and the city has paid
out more than $3.5 million.1
Pursuant to a plea bargain, Baird pled guilty to three
counts of the indictment. The calculation of Baird's sentence
under the Sentencing Guidelines produced an adjusted offense
level of 29 and a criminal history category of I for a sentencing
range of 87 to 108 months. The district court might have
departed downward from the range pursuant to the government's
motion under § 5K1.1 of the Guidelines to reward Baird's
substantial assistance to authorities. Baird's cooperation was
in fact very great, for he produced evidence against his 5 Squad
co-conspirators, leading to numerous arrests. The district court
nonetheless effectively denied the § 5K1.1 motion; it also
factored Baird's cooperation into the sentence in an unusual
manner. Instead of departing downward, the district court
departed upward, imposing a sentence of 156 months (13 years),
while making it clear that it would have imposed an even greater
sentence but for Baird's cooperation. Importantly for this
appeal, the court, in fashioning the upward departure, relied
1. See Howard Goodman, Police-Corruption Panel Appointed, The
Philadelphia Inquirer, Jan. 9, 1997, at B1.
3
upon conduct underlying dismissed counts.
Baird, sorely aggrieved by the perception that his
cooperation netted him not a decrease but an increase in his
sentence, has appealed on three grounds. First, he contends that
the district court erred in considering in connection with the
upward departure the conduct underlying counts dismissed as part
of a plea agreement. Second, he submits that the upward
departure was itself improper. Third, he challenges the extent
of the upward departure as unreasonable in light of the treatment
of analogous situations under the Sentencing Guidelines.
Although it would seem that after almost ten years of
experience under the Guidelines the dismissed counts issue should
have been resolved, unfortunately it has not. There exists a
circuit split on the issue, and our own jurisprudence, though
generally recognizing the appropriateness of using conduct
underlying dismissed counts, is clouded by a recent decision
suggesting the opposite. Moreover, whatever the general rule,
Baird argues that the plea bargain sections of the Guidelines
proscribe the use of dismissed conduct to support an upward
departure in the case of a bargained plea. We conclude, however,
that even in the plea bargain context, conduct underlying
dismissed counts may support an upward departure. We have no
difficulty with the remaining issues, believing that an upward
departure was warranted in this case, and that the extent of the
upward departure was not unreasonable. Accordingly, we affirm.
4
I. THE PLEA AGREEMENT AND SENTENCE
As we have noted, Baird pled guilty to three counts of
the indictment. Count Two charged Baird and his codefendants
with Hobbs Act robbery, see 18 U.S.C. § 1951, in connection with
an illegal search of a house. During the search, the officers
seized cash from those present, including from suspected drug
dealer Edwin Scott. The officers never reported the seizure.
Count Five charged Baird with conspiracy to violate the civil
rights of another while acting under the color of state law. See
18 U.S.C. § 241. During this incident, Baird and a codefendant
illegally detained Arthur Colbert, threatened him, physically
assaulted him, and then conducted an illegal search of his
apartment. Count Six charged Baird with obstruction of justice.
See 18 U.S.C. § 1503. This count is based on Baird's attempt to
mislead investigators into believing that a codefendant was not
involved in the 5 Squad corruption.
The terms of the plea agreement made explicit Baird’s
sentencing exposure. A maximum prison term of 20 years
accompanied Count Two; a maximum of 10 years accompanied Count
Five; and a maximum of 5 years accompanied Count Six. In all,
according to the plea agreement itself, "the total maximum
sentence which could be imposed is a term of imprisonment of 35
years . . . ." Moreover, the plea agreement specifically noted
that "[n]o one has promised or guaranteed to the defendant what
sentence the Court will impose." The government did, however,
5
agree that it would move to allow the sentencing court to depart
from the Sentencing Guidelines pursuant to § 5K1.1 if, in its
sole discretion, the government determined that Baird fully and
truthfully cooperated with the prosecution in its investigation
into the activities of the 5 Squad. Because of Baird’s extensive
cooperation, the government made such a motion.
The computation of Baird's sentence under the
Sentencing Guidelines is complicated because it involves the
grouping of counts. We need not concern ourselves with the
intricacies of this process, however, except to note those
specific offense characteristics and adjustments the district
court took into account at sentencing. They include the
following: a five-level increase under § 2B3.1(b)(2)(C) for the
use of a handgun; a four-level increase under § 2H1.1(b)(1)
because Baird was a public official at the time of the offense; a
two-level increase under § 3A1.3 for restraining the victim of an
offense; a two-level increase under § 3B1.1(c) for a supervisory
role in the offense; a two-level increase under § 3B1.3 for abuse
of a position of trust; a two-level increase under § 3C1.1 for
obstruction of justice; and a three-level decrease under §
3E1.1(a), (b) for acceptance of responsibility. The calculation
led to a total offense level of 29. Because Baird had no prior
criminal history, his criminal history category was I. Under the
relevant Sentencing Guidelines, an offense level of 29 with a
criminal history category of I yields an adjusted guideline range
6
of 87 to 108 months imprisonment.
In fashioning its sentence, the district court focused
heavily on the significant disruption of governmental functions
caused by Baird's activities, finding it so great as to justify a
departure under § 5K2.7, which provides:
If the defendant’s conduct resulted in a significant disruption
of a governmental function, the court may increase the
sentence above the authorized guideline range to
reflect the nature and extent of the disruption and the
importance of the governmental function affected.
1995 U.S.S.G. § 5K2.7.
For example, the court observed that "every time a
search is undertaken in violation of the Constitution, that is a
significant disruption of Governmental function." As further
evidence of the disruption, the court cited the many convictions
that have been set aside because they were based on illegally
obtained evidence, and the civil litigation that has resulted
from these wrongful prosecutions. It concluded that the drafters
of the Sentencing Guidelines simply did not foresee police
corruption of the type and colossal extent involved here.
Therefore, it departed upward and sentenced Baird to 156 months
for Count Two, 120 months for Count Five, and 60 months for Count
Six. The sentences were to run concurrently, so that Baird's
total sentence was 156 months, or 13 years.
It will be instructive to recite the relevant portions
of the district court’s reasoning:
I have considered the guidelines. I do find that there has been
a significant disruption of a Governmental function
here. I find there to have been many significant
7
disruptions of many Governmental functions. And in my
view, every time a search is undertaken in violation of
the Constitution, that is a significant disruption of
Governmental function.
When somebody chooses to squish the Bill of Rights into the mud,
that is a significant disruption of Governmental
function, whatever one thinks about the exclusionary
rule, and sage people have debated all sides of that
issue, our Supreme Court has spoken on that. And when
one does that and does that repeatedly, each and every
such event constitutes a significant disruption of a
Governmental function, whether somebody later tattle-
tales on it or not. That it was just a little tree
falling in the wilderness, a little unconstitutional
search that some police officer decided not to talk
about, that disruption occurred then and there.
That because of this defendant's prodigious memory, his
willingness to come forth, many of these illicit
searches have now been overturned, and many, perhaps
some substantively in the Government's sentencing
memorandum, suggests all of them substantively
ultimately justifiable searches from the standpoint of
whether the drugs actually were there, in most of these
cases, whether they pan out with continuing convictions
or whether those convictions are destroyed, and
consequent civil suits, et cetera, that is another
aspect of the disruption of governmental function, sort
of the second stage of it.
First, is the Constitutional violation and recognition of it,
then the disruption of the numerous convictions, then
the lawsuits for people whose Constitutional rights
were violated.
Governmental functions in this town have been disrupted
immeasurably. And I am constrained to conclude that
the guidelines simply, as all-encompassing the
seemingly all-foreseeing scriveners of those guidelines
may have been, didn't fully encompass and embrace the
breadth of the criminality before us today.
And I am thus, upon this reasoning, of the view that an upward
departure is appropriate. Again perhaps toying with
semantics here, I am perhaps in trying to honestly
convey to you my thinking on the subject, there is
implicit in what I am going to impose something of a
downward departure.
I would be hitting you harder, frankly, were it not for the
8
cooperation. I recognize the irony in his zeal to
cooperate and cheapen his sentence of being hit hard,
but actually the jail, the prisons of the Commonwealth
and the United States of America from the Atlantic to
the Pacific, are full of people who have been
incarcerated for a lot longer than this man is going to
go, simply because they got talkative in the Roundhouse
[the Philadelphia police administration building] or
some similar edifice in some other municipality.
But I think under the circumstances of this case an upward
departure is not only appropriate but essential.
Upon release from imprisonment, the defendant shall be placed on
supervised release for a term of three years.
The sentence actually given to Baird far exceeded his
sentencing range as calculated under the Guidelines. In effect,
the upward departure was either a four-level increase to an
offense level of 33, criminal history category of I, and a
sentencing range of 135 to 168 months; or a five-level increase
to an offense level of 34, criminal history category of I, and a
sentencing range of 151 to 188 months. As is evident from the
passages quoted above, the precise anatomy of the actual
departure is unclear because the district court was general
rather than specific in explaining the departure justification.
Baird timely appealed from the judgment. The district
court properly exercised jurisdiction over the matter under 18
U.S.C. § 3231; we exercise appellate jurisdiction over the final
judgment of the district court under 18 U.S.C. § 3742 and 28
U.S.C. § 1291.
II. MAY CONDUCT UNDERLYING DISMISSED COUNTS BE CONSIDERED?
A. Introduction
Baird's first contention on appeal is that the district
9
court improperly departed upward from the Guideline range based
on conduct underlying counts to which Baird did not plead guilty
and which were dismissed by reason of the plea agreement.2 As we
have noted, the point is still somewhat controversial; four
circuits allow consideration of dismissed counts, and two others
do not. See infra, part II, section B. Our analysis of this
contention, therefore, requires close scrutiny of a number of
provisions in the Sentencing Guidelines. We undertake such
scrutiny in light of Koon v. United States, U.S. , 116 S.
Ct. 2035 (1996), which teaches that appellate review of a
district court's decision to depart from the Guidelines is
essentially subject to an abuse of discretion standard. See id.
at 2046-48. Any legal error in applying the Guidelines would
constitute such an abuse. See id. at 2047-48.
B. Analysis
Whether a sentencing court can consider conduct
underlying dismissed counts is at bottom a legal question about
which there continues to be not only disagreement but also a
2. Although the district court did not particularize the reasons
for departing from the applicable sentencing range, the parties
do not dispute that the court relied on conduct not underlying
the charged offenses, some of which was conduct underlying counts
dismissed as per the plea agreement. A review of the sentencing
hearing transcript confirms that this is so. Baird has also
argued that the district court did not sufficiently consider the
§ 5K1.1 motion. We disagree. Although the court did not
explicitly state that it was denying the motion, nor did it state
the reasons for doing so, it is clear from the record that the
court carefully considered Baird's cooperation within the § 5K1.1
frame of reference.
10
certain amount of confusion. As we proceed, we bear in mind that
not only is each guideline legally binding on the courts, see
Mistretta v. United States, 488 U.S. 361, 391 (1989), but so too
are the accompanying policy statements, see Williams v. United
States, 503 U.S. 193, 199-201 (1992), and commentary, see Stinson
v. United States, U.S. , 113 S. Ct. 1913, 1917-18 (1993),
so long as neither the policy statements nor the commentary is
inconsistent with any guideline.
The Guidelines afford sentencing courts considerable
leeway as to the information they may consider when deciding
whether to depart from the Guideline range. Section 1B1.4
specifically states that in determining whether a departure is
warranted, "the court may consider, without limitation, any
information concerning the background, character and conduct of
the defendant, unless otherwise prohibited by law." 1994
U.S.S.G. § 1B1.4. Moreover, with respect to conduct underlying
dismissed counts, the commentary to § 1B1.4, when read in
conjunction with the commentary to § 1B1.3, indicates that
considering such conduct is appropriate. The commentary to §
1B1.4 declares that "information that does not enter into the
determination of the applicable guideline sentencing range may be
considered in determining whether and to what extent to depart
from the guidelines." Id. § 1B1.4, comment., backg. And, the
commentary to § 1B1.3 states that "[c]onduct that is not formally
charged or is not an element of the offense of conviction may
11
enter into the determination of the applicable guideline
sentencing range." Id. § 1B1.3, comment., backg.3
It must be, therefore, that conduct not formally
charged or not an element of the offense can be considered at
sentencing; if such information can be considered in determining
the applicable guideline range under § 1B1.3, then such
information can be considered in determining whether to depart
from that range under § 1B1.4. Thus, conduct underlying
dismissed counts -- which is conduct that is neither formally
charged nor an element of the offense -- may be considered at
sentencing.4
3. Section 1B1.3 does, of course, place some limits on the
information considered when determining the applicable sentencing
range. Under § 1B1.3(a)(1), the relevant conduct must have
"occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense." 1994
U.S.S.G. § 1B1.3(a)(1). In this case, the conduct underlying the
dismissed counts might or might not fit this definition. Under §
1B1.3(2), with respect to offenses for which grouping under §
3D1.2(d) is appropriate, conduct that is "part of the same course
of conduct or common scheme or plan as the offense of conviction"
can be considered. Id. § 1B1.3(2). Certainly, the conduct
underlying the dismissed counts in this case is part of the same
course of conduct or common scheme or plan as the offense of
conviction. See id. § 1B1.3, comment., application note 9
(defining "common scheme or plan" and "same course of conduct").
But, only some of the dismissed counts would be grouped under §
3D1.2(d); the other counts include multiple counts of offenses
that are specifically excluded from the grouping rules. However,
as is noted in the text, the information considered under § 1B1.4
is broader than that considered under § 1B1.3. Therefore, that
the conduct underlying the counts dismissed in this case may not
be considered under § 1B1.3 does not preclude its consideration
under § 1B1.4.
4. It should be noted that we are considering only offense level
departures and not criminal history category departures. For
sake of completeness, we note that it seems that, under § 4A1.3,
12
This conclusion is supported by the weight of the case
law. The leading case is United States v. Kim, 896 F.2d 678 (2d
Cir. 1990) (allowing the consideration of conduct underlying
dismissed counts). In Kim, the Second Circuit identified four
ways in which the Guidelines addressed misconduct not resulting
in conviction. See id. at 682-84. First, the Guidelines take
cognizance of acts that typically accompany or occur in the
course of an offense. These specific offense characteristics
determine the severity of the offense. Second, the Guidelines
create rules concerning misconduct to which the parties stipulate
in connection with the entry of a plea. Third, calculating the
criminal history category under the Guidelines requires an
(..continued)
conduct underlying dismissed counts can also be considered.
Section 4A1.3 states that a court may depart from the applicable
guideline range if reliable information leads it to believe that
a defendant's criminal history category under- or over-represents
the seriousness of the defendant's past criminal history. Such
information includes, inter alia, "prior similar adult criminal
conduct not resulting in a criminal conviction." 1994 U.S.S.G. §
4A1.3(e).
We do not believe, however, that, given the
circumstances of the present case, a criminal history category
departure would have been warranted. By use of the term "prior,"
the Sentencing Guidelines seems to imply that a criminal history
category departure under § 4A1.3(e) is appropriate only when the
conduct in question is unrelated to, different from, or not part
of the offense conduct. See United States v. Kim, 896 F.2d 678,
683 (2d Cir. 1990). As the Supreme Court has stated, "the
difference between 'criminal history' and 'relevant conduct' is
more temporal than qualitative, with the former referring simply
to a defendant's past criminal conduct . . . and the latter
covering activity arising out of the same course of criminal
conduct as the instant offense." Witte v. United States,
U.S. , 115 S. Ct. 2199, 2207 (1995) (citations omitted).
Here, the conduct underlying the dismissed counts are part of the
same criminal activity as the offense conduct.
13
analysis of misconduct not resulting in a conviction. Finally,
the Guidelines envision departures based on misconduct not
resulting in conviction. Against this background, the court in
Kim concluded that "with respect to acts of misconduct not
resulting in conviction, the [Sentencing] Commission intended to
preclude departures for acts bearing no relationship to the
offense of conviction, but to permit departures for acts that
relate in some way to the offense of conviction, even though not
technically covered by the definition of relevant conduct." Id.
at 684; accord United States v. Barber, 93 F.3d 1200, 1209-12
(4th Cir. 1996); United States v. Big Medicine, 73 F.3d 994, 997-
98 (10th Cir. 1995); United States v. Ashburn, 38 F.3d 803, 807-
08 (5th Cir. 1994) (en banc), cert. denied, 115 S. Ct. 1969
(1995); United States v. Zamarripa, 905 F.2d 337, 341-42 (10th
Cir. 1990).
In a related vein, the Supreme Court recently held that
a sentencing court is permitted to consider conduct of which a
jury acquitted a defendant. See United States v. Watts, U.S.
, 117 S. Ct. 633 (1997).5 In so doing, the Court engaged in a
close analysis of statutory authority, the Sentencing Guidelines
(particularly § 1B1.3 and § 1B1.4), its own precedent, and pre-
Guidelines sentencing practices. See id. at 635-36. With
sweeping language, the Court made plain that a sentencing court
5. In United States v. Ryan, 866 F.2d 604 (3d Cir. 1989), we had
reached the same conclusion.
14
is entitled to examine a broad range of factors that may relate
to the defendant's conduct, including, but apparently not limited
to, the defendant's life, characteristics, and past criminal
behavior, even if such behavior did not result in criminal
convictions. See id. at 635. According to the Court, the
Guidelines kept in place a sentencing system in which there was
no "basis for the courts to invent a blanket prohibition against
considering certain types of evidence at sentencing." Id.6
Watts strongly suggests that a sentencing court may
consider conduct underlying dismissed counts. If a sentencing
court can consider conduct that a jury, after trial, believed to
be unproven beyond a reasonable doubt, it would surely seem that
a sentencing court can consider conduct underlying a count that,
by plea agreement, has been dismissed without having been tested
in an adversarial process. We note that in Watts the sentencing
courts considered acquitted conduct when calculating the
applicable guideline range. Although neither of the underlying
cases in Watts was a departure case, we find nothing in Watts
that implies that the Supreme Court would treat a departure case
6. Two of the Justices who wrote in Watts disagree over whether,
after Watts, the Sentencing Commission has the power to limit the
ability of sentencing courts to consider acquitted conduct.
Justice Scalia believes only Congress may do so, see Watts, 117
S. Ct. at 638 (Scalia, J., concurring); Justice Breyer contends
that the Commission may do so on its own, see id. at 638-39
(Breyer, J., concurring). We agree with Justice Breyer, and for
the reasons set forth by Judge Wald in her eloquent concurring
opinion in United States v. Baylor, 97 F.3d 542, 549-53 (D.C.
Cir. 1996), urge the Sentencing Commission to prohibit sentencing
courts from considering acquitted conduct during sentencing.
15
any differently. In fact, the Court relies heavily on § 1B1.4,
which governs the information applicable to departures, in
reaching its conclusion.
The foregoing analysis does not lead ineluctably to the
conclusion that any conduct underlying a dismissed count may be
considered at sentencing. The conduct underlying the dismissed
counts must be related in some way to the offense conduct. To be
related conduct, the conduct need not, however, fit the
definition of relevant conduct under § 1B1.3. Without attempting
to define with precision the meaning of “related,” we again
follow United States v. Kim, supra, and hold that the acts in
question must exhibit commonalities of factors sufficient to
allow for a reasonable grouping of the separate, individual acts
into a larger, descriptive whole. It is not enough, however,
that the acts stand in close temporal relation to one another.
Rather, the similarities of the acts must arise from the
character or type of the acts.
The Second Circuit's logic in Kim in this respect is
compelling. It began by noting that specific offense
characteristics for a given guideline represent typical
occurrences during the commission of the specific crime covered
by the guideline. See id. at 682. It went on to note that the
relevant conduct guideline, § 1B1.3, is limited to conduct that
is somehow related to the offense of conviction. See id. at 682-
83. Then, the court noted that in determining the criminal
16
history category a court is directed to similar, prior conduct
under § 4A1.3(e). See id. at 683. Finally, the court looked at
the language the Guidelines employ with respect to departures and
pointed out that departures should only be based on conduct
related to the offense of conviction. See id.
The court concluded that these provisions, when taken
together, make clear that a sentencing court may only consider
dismissed conduct if it is related to the charged conduct. In
the case at bar, it is clear that the conduct underlying the
dismissed counts was sufficiently related to the charged conduct.
All of the acts, whether charged or not, involved essentially
the same type of illegal searches and seizures and essentially
the same perpetrators. The only differences appear to be the
identity of the particular victims.7
7. We must also bear in mind the standard of proof that must be
met before a judge may consider disputed information at
sentencing. As we held in United States v. Kikumura, 918 F.2d
1084 (3d Cir. 1990), facts deemed relevant to a departure from
the Guidelines sentencing range generally need be proved only by
a preponderance of the evidence. See id. at 1098-102; cf. 1994
U.S.S.G. § 6A1.3, comment. ("The Commission believes that use of
a preponderance of the evidence standard is appropriate to meet
due process requirements and policy concerns in resolving
disputes regarding application of the guidelines to the facts of
a case."). In rare circumstances, however, the sentencing
hearing may become the "tail which wags the dog of the
substantive offense." Kikumura, 918 F.2d at 1101 (quoting
McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)). In such
cases, the fact finding underlying the departure must be
established by clear and convincing evidence. See id.
The case before us does not present that rare
circumstance. The departure here was at most five levels. A
five-level departure is not extreme enough to require proof by
the clear and convincing standard. See id. at 1100 (reasoning
that the facts underlying a six-level departure need be proven
only by a preponderance and that a ten-level increase is
17
The Ninth Circuit in United States v. Castro-Cervantes,
927 F.2d 1079 (9th Cir. 1990) reached a conclusion different from
the Second Circuit. It held that a court could not consider the
conduct underlying dismissed counts -- whether related to the
offense conduct or not -- when making a departure determination.
See id. at 1081-82. (A more complete discussion of Castro-
Cervantes is more appropriately taken up later. See infra part
II, section D.); see also United States v. Harris, 70 F.3d 1001,
1003-04 (8th Cir. 1995) (holding that consideration of conduct
underlying dismissed counts to support an upward departure is
inappropriate). Notwithstanding its Castro-Cervantes holding,
the Ninth Circuit also made clear, in United States v. Fine, 975
F.2d 596 (9th Cir. 1992), that the rule in Castro-Cervantes only
applies to departures based on conduct underlying counts
dismissed pursuant to a plea agreement; Castro-Cervantes did not
limit consideration of such conduct as relevant conduct in
determining the applicable sentencing range. See id. at 602.
C. Does United States v. Thomas Undermine Our Conclusion?
Before proceeding further, we must consider whether our
decision in United States v. Thomas, 961 F.2d 1110 (3d Cir.
1992), which arguably calls into question our conclusion that
consideration at sentencing of conduct underlying dismissed
(..continued)
"probably" subject to the same standard). Moreover, the conduct
underlying the dismissed counts on which the sentencing court
relied was proven by more than a preponderance of the evidence.
Baird himself supplied the factual basis for the counts when he
began to cooperate in the investigation.
18
counts is permissible, undermines our conclusions. In Thomas, in
the course of obtaining firearms from a gun shop, the defendant
falsely stated on four Bureau of Alcohol, Tobacco and Firearms
forms that he had never been convicted of a crime punishable by a
prison term in excess of one year. In fact, the defendant had a
lengthy criminal record. As part of a plea agreement, the
defendant agreed to plead guilty to four counts of making false
statements in connection with the purchase of a firearm. In
exchange, the government agreed not to charge him with possession
of a firearm by a convicted felon, a crime that carried with it a
mandatory minimum sentence of 15 years. At sentencing, the
district court departed from the applicable Sentencing Guideline
range of 24-30 months. It justified the departure by its finding
that the defendant's criminal history category, the highest
category under the Guidelines, under-represented the defendant's
criminal history because it did not take into account juvenile
convictions, the likelihood of recidivism, and parole
revocations.
As an alternative argument supporting the decision to
depart, the government argued on appeal that, even assuming that
the factors on which the district court relied to depart from the
criminal history category were improper, the court could have
departed based on the conduct not charged. The Thomas panel
disagreed; it wrote that a sentencing court could not depart from
the Guidelines to account for conduct underlying a forgone
19
charge. See id. at 1121 ("It would be a dangerous proposition to
allow district courts to base upward departures on crimes that
were not actually charged.").
Although Thomas seems to suggest that consideration at
sentencing of conduct underlying dismissed counts is improper, we
believe that any such conclusion is incorrect. We have explained
how our conclusion flows from Watts, a Supreme Court decision.
To the extent that Thomas is inconsistent with Watts, Thomas will
of course be deemed without effect.8 Even assuming that Watts is
not controlling because Watts and Thomas arose in different
factual contexts -- the issue in Watts was the consideration of
acquitted conduct and that in Thomas was of dismissed conduct --
Thomas is distinguishable from the present case. The particular
facts of Thomas and our irritation with the government’s position
relative to those facts largely determined the result.
Thomas presented an unusual plea agreement. The
8. In another recent opinion, we stated that "there is no reason
why facts relating to a count on which a defendant is acquitted
or which is dismissed may not be germane with respect to a count
on which he is convicted." United States v. Goggins, No. 96-
3154, slip op. at 6 (3d Cir. Oct. 30, 1996) (citing Ryan). That
language implies that Ryan, see supra note 5, (and, by
implication, Watts) and not Thomas controls the consideration of
conduct underlying dismissed counts. We are reluctant to rely on
Goggins for that proposition, however, because the count at issue
in Goggins was dismissed by operation of law and not by virtue of
a plea agreement. See id. at 3. Dismissal by operation of law
and dismissal by virtue of a plea agreement implicate different
policy concerns, counseling against the application of Goggins in
this context. At all events, as we note in the text, because we
believe that consideration of conduct underlying the dismissed
counts in this case is appropriate under Watts (and even Thomas),
we need not rely on Goggins.
20
government "expressly declined to prosecute" the defendant for
illegal possession of a firearm. See Thomas, 961 F.2d at 1124
n.1 (Greenberg, J., concurring). To prosecute would have
triggered the provisions of the armed career criminal act. See
id. at 1112. The armed career criminal act operates much like an
"on/off switch" in that it applies automatically if its
prerequisites are met. See id. at 1122. Moreover, once it
applies, the armed career criminal act imposes a mandatory
minimum sentence; there is no incremental increase in the
associated penalties. See id. By arguing for consideration of
the conduct underlying the forgone charge, the government in
effect reneged on its agreement, and sought to alter the armed
career criminal act and impose on it a sliding scale it does not
have, ie., change the fundamental nature of the act so that it
operated like a dimmer switch. The government did so by arguing
that an upward departure -- to a sentence less harsh than that
mandated by the armed career criminal act -- was warranted
because it had not sought application of the armed career
criminal act. The government wanted the armed career criminal
act to play a role in sentencing, but not too much of a role.
The court in Thomas plainly disapproved of this attempt.9
9. The majority in Thomas commented that “[f]airness dictates
that the government not be allowed to bring the firearm
possession crime through the ‘back door’ in the sentencing phase,
when it had previously chosen not to bring it through the ‘front
door’ in the charging phase.” Thomas, 961 F.2d at 1121. The
concurrence echoed these sentiments when it said that “[t]he real
problem in this case is that the prosecutor has declined to
enforce a law which represents an important policy determination
21
Thomas, as we read it, would not foreclose all
consideration of conduct underlying dismissed counts. Instead,
Thomas seems to be directed at the particular circumstances
presented by that case. See id. at 1124 n.1 (Greenberg, J.,
concurring) ("I do not understand the opinion to preclude in all
circumstances the possibility of a departure predicated on
conduct which could have been the basis for additional charges
but was not. Here there is a special situation . . . .").
Because the circumstances of the present case differ
substantially from those of Thomas, Thomas should not control our
inquiry.10 .
D. Import of the Policy Statement Concerning Plea Agreements
Baird contends alternatively that the policy statement
(..continued)
by Congress.” Id. at 1124 (Greenberg, J., concurring).
10. The government contends that a second of our cases, United
States v. Johnson, 931 F.2d 238 (3d Cir. 1991), would assist in
our analysis. In Johnson, the defendant was indicted for the
armed robbery of three individuals. The indictment charged the
defendant with three counts of assault, one count for each of the
individual victims. As part of the plea agreement, the
government dropped all but one of the assault charges, but the
district court departed upward from the applicable sentencing
range because the assault involved three victims. The government
submits that the case thus supports the proposition that we will
allow a sentencing court to depart based on conduct underlying
dismissed counts. We agree with Baird, however, that Johnson
offers little guidance. The defendant in Johnson apparently did
not make the argument Baird makes here. Rather, he seems to have
conceded that the sentencing court could have considered the
assaults underlying the counts the government dismissed. See id.
at 241 ("[The defendant] argues that since he pled guilty to the
aggravated assault of [one victim], there were only two
additional victims, and thus it was unreasonable for the court to
have departed more than two levels."). The panel in Johnson,
therefore, did not address the question before us.
22
outlining the standards for accepting a plea agreement prohibits,
as a matter of law, consideration of conduct underlying a
dismissed charge. The relevant portion of the policy statement
follows:
In the case of a plea agreement that includes the dismissal of
any charges or an agreement not to pursue potential
charges [Rule 11(e)(1)(A)], the court may accept the
agreement if the court determines, for reasons stated
on the record, that the remaining charges adequately
reflect the seriousness of the actual offense behavior
and that accepting the agreement will not undermine the
statutory purposes of sentencing or the sentencing
guidelines.
Provided, that a plea agreement that includes the dismissal of a
charge or a plea agreement not to pursue a potential
charge shall not preclude the conduct underlying such
charge from being considered under the provisions of §
1B1.3 (Relevant Conduct) in connection with the
count(s) of which the defendant is convicted.
1994 U.S.S.G. § 6B1.2(a).
According to Baird, the first paragraph of this subpart
means that, if the court believed that the counts not dismissed
by virtue of the plea agreement did not satisfactorily account
for the seriousness of the actual offense, then what the court
should have done is to reject the plea agreement. In other
words, Baird asserts, conduct underlying dismissed counts
provides grounds for rejecting a plea agreement but not for
departing from the applicable sentencing range.
Baird draws support for this argument from Castro-
Cervantes. The Ninth Circuit in Castro-Cervantes reasoned that
if a plea agreement does not reflect the seriousness of the
offense, the court should reject the agreement at the outset; at
23
sentencing, it is too late to seek to address shortcomings in the
plea agreement. Allowing a court to depart from the sentencing
range based on conduct underlying dismissed counts would
"violate[] the spirit if not the letter of the bargain"
represented by the plea agreement. Castro-Cervantes, 927 F.2d at
1082. The Ninth Circuit expanded on the policy justifications
driving Castro-Cervantes by noting that "allow[ing] judges to
depart from the Guidelines on the basis of counts that have been
dropped pursuant to plea agreements would severely undermine the
incentive of defendants to enter into plea agreements." United
States v. Faulkner, 952 F.2d 1066, 1070 (9th Cir. 1991).11
We disagree. This argument begs the ultimate question.
Whether a court accepts a plea agreement is dependent, to some
extent, on the information it can consider at sentencing. If the
court is aware that it cannot consider conduct underlying
dismissed counts at sentencing, then it may be more reluctant to
accept a plea agreement. The opposite is also true. If the
court is aware that it may consider conduct underlying dismissed
counts at sentencing, then it may more readily accept a plea
11. Faulkner also discussed the potential conflict between
Castro-Cervantes and United States v. Loveday, 922 F.2d 1411 (9th
Cir. 1991). In Loveday, the court followed the reasoning in Kim
and held that conduct underlying dismissed counts could be
considered when determining whether to depart. See id. at 1417.
The court in Faulkner distinguished Loveday by arguing that the
restriction imposed by § 6B1.2(a) -- that of requiring a court to
reject a plea agreement that did not reflect the seriousness of
the offense -- was not raised in Loveday. See Faulkner, 952 F.2d
at 1071 n.3.
24
agreement. At all events, we do not see Baird’s argument from §
6B1.2(a) as undercutting the conclusion we have already reached
regarding the use of dismissed conduct. The language of the
policy statement is insufficiently specific to contradict the
clearer guidance provided by other sections of the Guidelines and
the Supreme Court, discussed supra.
Baird also argues that the second paragraph of this
policy statement implies that conduct underlying dismissed counts
may only be used to determine the applicable sentencing range
under § 1B1.3, but may not be used to determine whether to depart
from that range. Otherwise, the argument continues, the first
paragraph of this subpart would be mere surplusage; no court
would hesitate to accept a plea agreement that includes dismissed
counts if that court could always consider the conduct underlying
those dismissed counts.
We disagree. As noted above, § 1B1.3, § 1B1.4, and the
commentary thereto make clear that the information appropriately
considered in a decision to depart is broader than that
considered in determining the applicable guideline range. If §
6B1.2(a) does not preclude a court from examining conduct
underlying dismissed counts in determining the applicable
sentencing range (in fact, the proviso contained in the last
paragraph of § 6B1.2(a) seems to encourage it), then we see no
reason why it should preclude the court from examining the same
25
information when deciding whether to depart.12
Moreover, even if a court actually considers conduct
underlying a dismissed count, it does not automatically ensure
that the remaining charges will reflect the seriousness of the
actual offense conduct. The statutory maximum sentence for the
remaining charges may be relatively low; in such a case, it might
be of little significance that a court could consider conduct
underlying dismissed counts because that court would be unable to
impose a sentence in excess of the statutory maximum. Under our
12. There is a potential argument that § 6B1.2(a), by use of the
language "in connection with the count(s) of which the defendant
is convicted," places some limit on the type of information that
can be considered in this regard. 1994 U.S.S.G. § 6B1.2(a)
(emphasis added). Such language might limit the information
considered to that which is somehow related -- substantively and
not merely temporally -- to the offense of conviction. As we
discussed in the text supra, part II, section A, we agree, but
reach the same conclusion employing slightly different reasoning.
The second paragraph of § 6B1.2(a) was not added until
1992, after many of the offenses charged in the indictment had
occurred. Thus, there is also a potential argument that
amendments to § 6B1.2(a) render the 1994 Sentencing Guidelines
inapplicable. As a general rule, the applicable Guidelines are
those in effect at the time of sentencing. See United States v.
Kopp, 951 F.2d 521, 526 (3d Cir. 1991). To avoid Ex Post Facto
Clause complications, we will apply the Guidelines in effect at
the time of the offense if doing otherwise would result in a
harsher sentence. See id. However, as suggested in the text,
the second paragraph in § 6B1.2(a) merely reinforces the
conclusion reached -- from examination of § 1B1.3, § 1B1.4, and
the commentary thereto -- that conduct underlying dismissed
counts can be used to justify an upward departure. So as to
avoid the potential inapplicability of the section, we do not
rely on § 6B1.2(a) as independent support for our conclusion.
For defendants whose offenses occurred after the amendment to §
6B1.2(a), it may very well be that the section provides such
independent support. Both § 1B1.3 and § 1B1.4 have been amended
as well, but, as far as we can tell, the amendments do not bear
on our inquiry here.
26
interpretation of the Guidelines, then, a court might reject a
plea agreement because it believes that the statutory maximum
sentence for the remaining counts is too short to account both
for the charged conduct and for the dismissed conduct. Contrary
to Baird’s submission, then, the first paragraph of § 6B1.2(a) is
not mere surplusage.
E. Policy Justifications
Our conclusion that conduct underlying dismissed counts
may be considered when determining whether to depart from the
applicable Sentencing Guidelines range comports with the policies
underlying the Guidelines themselves. The Guidelines are, at
bottom, a modified real offense system. See 1994 U.S.S.G. chap.
1, pt. A, intro. comment. 4(a). More specifically, they are a
mix of a charge offense system and a pure real offense system in
that it bases a sentence on both the formal offense of conviction
and on the actual conduct of the defendant. See Stephen Breyer,
The Federal Sentencing Guidelines and the Key Compromises Upon
Which They Rest, 17 Hofstra L. Rev. 1, 8-12 (1988). Therefore,
it is clear that the Guidelines envisioned that sentencing courts
would consider at least some conduct for which a defendant was
not actually charged.
We are unconvinced by Baird’s argument that use of
conduct underlying dismissed counts will deny defendants the
benefit of the plea agreement bargain, nor, as we explained, see
supra part II, section D, do we find persuasive the contention
27
that without that benefit there will be no incentive for
defendants to plea bargain. In the usual case, the plea
agreement makes clear that the sentencing court is not bound by
the agreement. Within statutory bounds, the sentencing court has
great discretion. If a defendant is sentenced to a term of
imprisonment within the maximum set out in the plea agreement, it
is difficult to see the grounds on which a defendant can rest a
complaint; the defendant got what he bargained for.13
At all events, the incentive to plea bargain remains.
The defendant can limit the sentencing court's discretion by
bargaining to plead guilty only to charges with lower statutory
maxima. Of course, the court may reject that plea agreement.
And, if the defendant pled pursuant to Federal Rule of Criminal
Procedure 11(e)(1)(A) -- which allows the government to dismiss
charges -- or 11(e)(1)(C) -- which allows the government and
defendant to agree on a specific sentence -- he can withdraw his
plea.14 Moreover, the Sentencing Guidelines allow for an
13. In this case, Baird's sentence -- 13 years -- fell well
within the statutory maximum -- 35 years -- set out in the plea
agreement.
14. Baird made no request to withdraw his plea. Therefore, we
would not be inclined to allow him to do so, even under the
theory that by departing upward from the Guidelines the
sentencing court effectively rejected the plea agreement.
Moreover, the plea agreement in this case made clear that Baird
could not withdraw his plea on the grounds that the court
declined to follow any recommendation, motion, or stipulation by
the government. It appears, then, that the plea was subject to
Federal Rule of Criminal Procedure 11(e)(1)(B), which, under Rule
11(e)(2), may not be withdrawn if rejected by the court.
28
adjustment of offense level for the acceptance of responsibility,
see 1994 U.S.S.G. § 3E1.1, and courts routinely make this
adjustment for defendants who plead guilty.
F. Summary
We conclude that a sentencing court, in its
determination whether to depart from the sentencing range made
applicable by the Sentencing Guidelines, may consider conduct
underlying counts dismissed pursuant to a plea agreement,
provided that such conduct is related to the conduct forming the
basis of the remaining counts and that such conduct is proved by
at least a preponderance of the evidence. In this case, it was
appropriate for the district court to consider conduct underlying
the counts against Baird that were dismissed. That conduct was
related to the charged conduct and it was proved by at least a
preponderance of the evidence.
III. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DECIDING TO
DEPART?
We now must determine whether, given the information
before it, the district court abused its discretion by departing
from the applicable guideline range. Unlike our discussion
heretofore, the legal standard is relatively clear, and our focus
will be on the particular factual circumstances presented by this
case.
A. Introduction
Section 5K2.0, Grounds for Departure, provides a
29
roadmap for a decision to depart from the applicable Guideline
range. In the usual case, a sentencing court must impose a
sentence within the Guideline range. See 18 U.S.C. § 3553(b).
For the most part, a court can "treat each guideline as carving
out a 'heartland,' a set of typical cases embodying the conduct
that each guideline describes." See 1994 U.S.S.G. ch. 1, pt. A,
intro. comment. 4(b). However, the Sentencing Commission
recognizes that “it is difficult to prescribe a single set of
guidelines that encompasses the vast range of human conduct
potentially relevant to a sentencing decision.” Id. Therefore,
a court may depart from the range if it “finds that there exists
an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration . . . in
formulating the guidelines.” 18 U.S.C. § 3553(b); see 1995
U.S.S.G. § 5K2.0. It is only in the unusual case, one outside
the “heartland,” in which a departure is authorized. See Koon,
116 S. Ct. at 2044. Except for a limited number of prohibited
factors, the Guidelines do not “limit the kinds of factors,
whether or not mentioned anywhere else in the guidelines, that
could constitute grounds for departure in an unusual case.” 1995
U.S.S.G. ch. 1, pt. A, intro. comment. 4(b).15
“Sentencing courts are not left adrift, however.”
15. The prohibited factors are race, sex, national origin,
creed, religion, and socio-economic status (§ 5H1.10); lack of
guidance as a youth (§ 5H1.12); drug or alcohol dependence (§
5H1.4); and economic duress (§ 5K2.12). See 1995 U.S.S.G. ch. 1,
pt. A, intro. comment. 4(b).
30
Koon, 116 S. Ct. at 2045. The Guidelines list factors that are
encouraged as bases for departure and those that are discouraged.
Section 5K2.0 introduces the subject. As § 5K2.0 explains, the
Commission “seeks to aid the [sentencing] court by identifying
some of the factors that [it] has not been able to take into
account fully in formulating the guidelines.” 1995 U.S.S.G. §
5K2.0. Those factors are included in §§ 5K2.1-5K2.18, and cover
issues such as the death or injury of a victim, the harm to
property or government interests, the purpose or cause of the
offense, the particular conduct of the defendant, and the like.
In Chapter 5, Part H, the Guidelines list a number of discouraged
factors. These are “factors [that] are not ordinarily relevant
to the determination of whether a sentence should be outside the
applicable guideline range.” 1995 U.S.S.G. ch. 5, pt. H, intro.
comment. They include, but are not limited to, a defendant’s age
(§ 5H1.1), education or vocational skills (§ 5H1.2), or
employment history (§ 5H1.5).
In Koon, the Supreme Court explained how a sentencing
court is to factor prohibited, encouraged, and discouraged
factors into the sentencing decision. If the unusual or special
factors presented by a case are prohibited factors, a court may
not depart on that basis alone. See Koon, 116 S. Ct. at 2045. If
the unusual or special factors are encouraged factors, a court is
merely authorized to depart. See id. A departure employing
encouraged factors is commonly referred to as a “guided”
31
departure. If the unusual or special factors are discouraged, or
if they are encouraged factors that have been taken into account
by the relevant guideline, then a court may depart only if the
"factor[s are] present to an exceptional degree or in some other
way make[] the case different from the ordinary case where the
factor[s are] present." Id. Finally, a sentencing court may
depart even if the unusual or special factors have not been
mentioned in the Guidelines, but only in rare circumstances. See
id. Such a departure would be “unguided.”
B. Can the Disruption of Government Function Serve as a Basis
for Departure in this Case?
Disruption of governmental function is included among
the encouraged upward departure factors. See 1994 U.S.S.G. §
5K2.7. "If the defendant's conduct resulted in a significant
disruption of governmental function, the court may increase the
sentence above the authorized guideline range to reflect the
nature and extent of the disruption and the importance of the
governmental function affected." Id. Although an encouraged
factor, the disruption in this case was, at least in part,
arguably taken into account when determining the applicable
sentencing range. For example, as part of the calculation of his
total offense level, Baird received a two-level increase because,
as a police officer, he abused his position of trust. See id §
3B1.3. He also received a four-level increase because, again as
a police officer, he was a public official at the time of the
32
offenses. See id. § 2H1.1(b)(1). In other words, Baird’s
sentence reflected the fact that he was a rogue government
official, one who affected government operations by acting
outside of the law. Therefore, as stated in Koon, the sentencing
court could have departed in this case only if the disruption was
"present to an exceptional degree or in some other way [made] the
case different from the ordinary case where the [disruption] is
present."
We believe that it is clear that the sentencing court
did not abuse its discretion by implicitly concluding that the
disruption of governmental function caused by Baird's conduct is
"present to an exceptional degree." The full impact of Baird's
conduct is not yet known. However, based upon information
supplied by the City of Philadelphia and by Baird himself, we
know that the city has reopened innumerable criminal cases,
originating from the 39th District, to determine whether it
obtained convictions based on illegally obtained evidence.
The city has already set aside more than one hundred
and fifty such convictions, leading to the release of innocent
persons from prison. As a result of these wrongful convictions,
many individuals have instituted civil lawsuits seeking damages
from the city. The city stands to be liable for enormous sums of
money. In other words, the disruption Baird caused is not only
by no means ordinary, but also is, as far as we can tell, as
colossal as it is unprecedented. The city must invest
33
considerable time, vast energy, and enormous resources in making
right the wrongs Baird has caused. Therefore, the departure in
this case to reflect a disruption in government functions was
appropriate.
Baird submits that the disruption occurred as a result
of his truthful cooperation with the investigation into the 39th
District and not as a result of his unlawful conduct. Therefore,
the argument continues, he should not be subject to a departure
because § 5K2.7 only allows departures "[i]f the defendant's
conduct resulted in a significant disruption . . . ." Id. §
5K2.7 (emphasis added). In a sense, Baird is correct. Without
his cooperation, the full extent of the 39th District corruption
might never have come to light. We are not unsympathetic, but
there is a flaw in Baird's argument: his conduct in fact caused
the disruption. But for Baird's illegal activities, the city
would not have reopened criminal convictions originating in the
39th District and innocent people would have no cause to sue the
city.
In other words, if Baird had been an honest police
officer, the city would not need to invest considerable time,
energy, or resources in making anything right because nothing was
wrong. At all events, we have made clear that the literal
language of an encouraged departure factor is not controlling.
See Kikumura, 918 F.2d at 1116 ("[F]itting a case within the
literal language of a § 5K2 provision is neither a necessary nor
34
a sufficient condition for making an offense-related
departure."). That the disruption in this case might have been
caused by Baird's cooperation as opposed to Baird's conduct is
therefore of little consequence. We hold that a departure in
this case for a significant disruption of government functions
was not an abuse of discretion.
IV. WAS THE EXTENT OF DEPARTURE APPROPRIATE?
Having concluded that a departure in his case was
appropriate, the final stage in our analysis is to determine
whether the extent of the departure was reasonable. Our review
of the sentencing court's decision in this regard is deferential.
See Kikumura, 918 F.2d at 1110; cf. Koon, 116 S. Ct. at 2046-48
(holding that a decision whether to depart is reviewed for an
abuse of discretion). However, there are "objective standards to
guide the determination of reasonableness." Kikumura, 918 F.2d
at 1110. Those objective standards can be found in the
Guidelines themselves, which provide analogies to which
sentencing courts must look when making their determinations.
See id. at 1110-14.
In the present case, the district court failed to
undertake the analogic reasoning that Kikumura often requires.
However, as in Kikumura, our examination of the record leads us
to conclude beyond any doubt that even if we were to remand the
district court would impose as high a sentence as possible up to
13 years. "If a reasonable analogy existed to support the
35
sentence imposed, remand would be a pointless exercise. We
therefore proceed to consider whether such analogy exists." Id.
at 1114 (footnote omitted). In so doing, we must bear in mind
that "[w]e are dealing here with analogies to the guidelines,
which are necessarily more open-textured than applications of the
guidelines." Id. at 1113 (emphasis in original).
Our task, then, is to determine if a reasonable analogy
exists in the Guidelines that would justify a four- or five-level
upward departure based on the disruption of governmental
functions. We note the existence of a guideline for the conflict
of interest crimes. See 1994 U.S.S.G. § 2C1.3. Under § 2C1.3,
the base offense level for the criminal, financial and non-
financial conflict of interest by federal officials is 6. See
id. § 2C1.3(a). However, "[i]f the offense involved actual or
planned harm to the government," the Guidelines require an
enhancement of 4 levels. See id. § 2C1.3(b)(1). Section 2C1.3
implies, then, that the Guidelines consider harm to the
government worthy of a four-level increase. Since Baird’s
conduct in this case is infinitely worse than a mere conflict of
interest that results in harm to the government, a fortiori, the
four-level departure in this case was reasonable.16
16. We recognized in Kikumura that “[t]here may be vehicles for
making offense-related departures under Ch. 5, Pt. K of the
guidelines (and for determining the reasonableness thereof) other
than the kind of analogic reasoning outlined above.” Kikumura,
918 F.2d at 1113. We noted further “that there may be cases
where the guidelines will not afford useful analogies.” Id.
Because we have in this case a useful analogy in the Guidelines,
we need not endeavor to search for some other standard against
36
The judgment of the district court will be affirmed.17
_______________________________
TO THE CLERK:
Please file the foregoing opinion.
BY THE COURT:
_________________________
Circuit Judge
(..continued)
which we may measure the reasonableness of the departure.
17. Because we affirm the judgment, Baird’s contention that the
case should be reassigned to a different district court judge on
remand is moot.
37