United States v. Kemmerer

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
3-11-2003
USA v. Kemmerer
Precedential or Non-Precedential: Non-Precedential
Docket 02-2229
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2229
UNITED STATES OF AMERICA
v.
TROY KEMMERER,
Appellant.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4:CR-00-283)
District Judge: The Honorable Malcolm Muir
Submitted under Third Circuit LAR 34.1(a)
January 16, 2003
Before: ROTH, FUENTES and ALDISERT, Circuit Judges.
(Filed March 11, 2003)
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Former Correctional Officer Troy Kemmerer appeals from a sentence imposed
after he pleaded guilty to one count of conspiracy to receive bribes, 18 U.S.C. § 371, and
one count of receipt of bribes by a public official, 18 U.S.C. § 201(b)(2)(c). We must
decide if the district court erred 1) in making a two-point enhancement based on
Kemmerer’s perjury at his sentencing hearing, and 2) in imposing a two-level upward
departure based on his dissemination of confidential and sensitive information to inmates
while he was a Correctional Officer at the Federal Correctional Institution in Allenwood,
Pennsylvania.
Kemmerer contends that the evidence did not support the district court’s
determination that he testified falsely at the sentencing hearing for which he received a
two-point enhancement in his offense level for obstructing justice pursuant to United
States Sentencing Guideline § 3C1.1. He also argues that the court abused its discretion in
concluding that Kemmerer’s dissemination of confidential information about one inmate to
another took him outside the “heartland” of cases, and thus that the district court erred in
imposing a two-level upward departure to his sentence pursuant to United States Sentencing
Guideline § 5K2.0.
Because the parties are familiar with the facts in the proceedings in the district
court, we will address only the legal issues presented.
I.
In its opinion, the district court stated:
The testimony presented at the pre-sentence hearing convinces us that Kemmerer
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knew he would be receiving $5,000.00 for smuggling the sperm kit into Allenwood
for [inmate Charles R.] Holbrook. Holbrook provided detailed testimony regarding
his negotiations with Kemmerer. In the letter Holbrook subsequently wrote to his
girlfriend, he referenced “V large books,” which was coded language for $5,000.00.
We find Holbrook’s testimony credible, and it stands in marked contrast to
Kemmerer’s vague, ambiguous testimony regarding his negotiations with Holbrook.
The $5,000 in cash was delivered to the Defendant in the sting operation. His
possession thereof, although he did not count it, warrants a finding that a bribe of
$5,000 was accepted by the defendant.
United States v. Kemmerer, No. 4:CR-00-283, at 19 (M.D. Pa. Mar. 26, 2002)
The court concluded that Kemmerer knowingly provided false testimony regarding
his negotiations with Holbrook over the “V large books” for smuggling the sperm kit into
Allenwood. The court made a credibility finding, which will not be disturbed on appeal
unless it were to constitute “clear error.” United States v. Powell, 113 F.3d 464, 467 (3d
Cir. 1997). Because it did not, the district court’s imposition of a two-point enhancement
for obstruction of justice will be affirmed.
II.
The district court also determined that Kemmerer committed perjury: 1) when he
testified that when Allenwood Unit Manager Edward Netzband observed Kemmerer sitting
on an inmate’s bed, Kemmerer was merely counseling the inmate because the inmate’s
mother had recently died; and 2) when he testified that he never disseminated any sensitive
or confidential information to prison inmates. As to the first instance of perjury, when
Netzband originally confronted Kemmerer about his sitting on the inmate’s bed and
conversing with him, Kemmerer said that he was getting information from the inmate. At
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the pre-sentencing hearing, however, Kemmerer told a different story. He said that he was
counseling the inmate because of the death of the inmate’s mother. As to the second,
witnesses testified – contradicting Kemmerer’s testimony under oath – that they saw
Kemmerer giving out confidential documents stamped “FOI” or “LOU Sensitive” to
inmates regarding other inmates.
The district judge as the finder of fact passed on the credibility of the witnesses, and
the court’s determination will not be disturbed on appeal. We now turn to the permissible
options that a district court may use in view of the foregoing.
III.
United States Sentencing Guideline § 5K2.0 provides that a court may impose a
sentence outside the applicable guideline range:
if [it] 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 that should result from the sentence
different from that described.”
In Koon v. United States, 518 U.S. 81 (1986), the Supreme Court recognized that a
district court’s decision to depart from the guidelines “will in most cases be due substantial
deference, for it embodies the traditional exercise of discretion by a sentencing court.”
518 U.S. at 98. To determine whether certain aspects of the case are unusual enough to fall
outside the heartland of cases within that guideline, “the district court must make a refined
assessment of the many facts bearing on the outcome, informed by its vantage point and day
to day experience in criminal sentencing.” Id.
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In United States v. Yeaman, 248 F.3d 223, 231 (3d Cir. 2001), we stated:
The Supreme Court has endorsed a four-step test for determining whether a
departure from the Guidelines should occur based on unusual circumstances. . . .
First, we determine if the factor relied upon in the case makes it special or unusual,
taking it outside the heartland. Second, we determine whether departures on such
factors have been forbidden by the [Sentencing] Commission. Third, we determine
whether the Commission has encouraged departures based on such factors. Fourth,
we determine whether the Commission has discouraged departures on such factors.
We are satisfied that the district court made a “refined assessment of the many
factors.” Koon 518 U.S. at 98. One explicit example of an encouraged upward departure
factor is the “disruption of a governmental function.” Id. at 94; see also United States
Sentencing Guideline § 52K.7 (“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.”). Considering that Kemmerer’s
improper and illegal conduct as a federal Correctional Officer certainly made possible the
“disruption of a governmental function,” Koon 518 U.S. at 94, we conclude that this
circumstance was sufficiently “unusual” to meet our Yeaman test to warrant an upward
departure.
*****
We have considered all the contentions of the parties and conclude that no further
discussion is necessary.
The judgment of the district court will be affirmed.
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Ruggero J. Aldisert
Circuit Judge
DATED: March 11, 2003
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