United States v. Ashburn

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
No. 93 - 1067
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILIP SCOTT ASHBURN,
Defendant-Appellant.
______________
Appeal from the United States District Court
for the Northern District of Texas
______________
( May 10, 1994 )
Before GOLDBERG, DAVIS, and DeMOSS, Circuit Judges.
GOLDBERG, Circuit Judge:
Philip Scott Ashburn appeals the sentence given him after he
pleaded guilty to two counts of bank robbery in violation of 18
U.S.C. § 2113 (a). At Ashburn's sentencing hearing, the district
court adopted the Presentence Investigation Report's (PSI)
calculation of the defendant's Guideline range under the Sentencing
Guidelines. The sentencing court overruled all but one of
Ashburn's objections to the report.1 The court then determined
that the appropriate Guideline range for Ashburn's offense was 63
to 78 months. However, because the sentencing judge believed the
Guideline range insufficiently reflected Ashburn's criminal history
and likelihood of recidivism, he upwardly departed, sentencing
Ashburn to a term of 180 months.
Ashburn appeals the denial of his objections to the PSI and
the upward departure. Although the objections to the PSI are
without merit, we find that the upward departure was not
sufficiently justified and was based on improper considerations.
We therefore vacate Ashburn's sentence and remand this case for
resentencing pursuant to 18 U.S.C. § 3742 (f)(2)(A).
I. Background
Ashburn pleaded guilty to Counts 3 and 4 of a four count
indictment that alleged that he participated in four separate Texas
bank robberies.2 In return for the guilty plea, the government
agreed to dismiss the other two counts. Count 3 charged Ashburn
with a bank robbery which occurred on July 3, 1992 in which $4,167
was stolen from the Bank of America in Fort Worth, Texas; Count 4
charged Ashburn with a robbery in which approximately $32,000 in
cash was stolen from the American Bank of Hurst, Texas on July 31,
1
The only objection sustained by the district court was to
allow an additional reduction in Ashburn's offense level for
acceptance of responsibility.
2
The indictment specifically charged Ashburn with
violations of 18 U.S.C. § 2113 (a).
2
1992.
The PSI prepared prior to Ashburn's sentencing revealed that
he had been convicted in 1984 of armed bank robbery. For this
offense, Ashburn served a six year sentence in the custody of the
Attorney General under the Federal Youth Corrections Act (YCA),
formerly codified at 18 U.S.C. § 5010 (b). The PSI assessed three
criminal history points against Ashburn for this prior conviction,
producing a criminal history category of II. The PSI also
increased Ashburn's offense level by two for the instant offenses
because he made an express threat of death while committing the
July 31 robbery. United States Sentencing Commission, Guidelines
Manual (U.S.S.G.) § 2B3.1 (b)(2)(F).
The court granted Ashburn's request for a three level
reduction in his offense level for acceptance of responsibility,
U.S.S.G. § 3E1.1 (b)(2), instead of the two level reduction
recommended by the PSI. The court then overruled all of Ashburn's
other objections to the PSI. As a result, Ashburn's offense level
was calculated at 25. When this figure was cross-referenced with
his Criminal History Category of II, Ashburn's Guideline range was
63 to 78 months. The court, dissatisfied with this range, notified
the parties of its provisional intention to upwardly depart from
the Guideline calculation.
To support the upward departure, the government called Federal
Bureau of Investigation (FBI) agent, Deborah Eckert, who testified
at the sentencing hearing about her investigation into several
robberies and attempted robberies for which Ashburn was alleged to
3
be responsible. Agent Eckert described an interview she conducted
with Ashburn's co-defendant, April Jeanette English. In that
interview, English asserted that Ashburn had admitted to her that
he had committed two earlier robberies in December of 1991 and
January of 1992. These two robberies, charged in counts 1 and 2 of
Ashburn's indictment, were later dismissed under the plea
agreement.
English also told Eckert that in April of 1992, she (English)
received a call from Ashburn in which he stated he had committed a
robbery in Florida. Eckert confirmed that a robbery had been
reported in Key West, Florida on the specified day.3 Eckert also
testified about two additional attempted robberies in July of 1992
which Ashburn had related to English.4
The district court concluded that the Criminal History
Category II did not adequately reflect the seriousness of Ashburn's
past conduct or the likelihood that he would commit additional
crimes. The judge therefore upwardly departed, sentencing Ashburn
to serve concurrent 180 month terms of imprisonment on Counts 3 and
4. The court also sentenced Ashburn to a 3 year term of supervised
release.
Ashburn contends that the district court erroneously
calculated his offense level and Criminal History Category and made
3
Ashburn was never charged with this robbery.
4
Pursuant to the plea agreement, the government agreed not
to prosecute Ashburn for these two attempts.
4
various errors in its decision to upwardly depart.
II. ANALYSIS
Ashburn makes two objections to the district court's
calculation of the appropriate sentence range for his crimes. His
first argument regards the increase in his sentence for an express
threat of death; the other concerns the inclusion of his YCA
conviction in the determination of his Criminal History Category.
Ashburn also appeals the judge's decision to upwardly depart from
the Guidelines range on the grounds that the judge failed to
provide sufficient justification for the departure and because the
departure was unsupported by proper evidence. We will address each
consideration in turn.
Prior to embarking upon the analysis of Ashburn's specific
contentions, we note that "[o]ur review of a sentence under the
guidelines is `confined to determining whether a sentence was
imposed in violation of law or as a result of an incorrect
application of the sentencing guidelines.'" United States v.
Shipley, 963 F.2d 56, 58 (5th Cir.), cert. denied, 113 S. Ct. 348,
121 L. Ed. 2d. 263 (1992) (quoting United States v. Nevarez-
Arreola, 885 F.2d 243, 245 (5th Cir. 1989)) (internal quotations
omitted); 18 U.S.C. § 3742 (e). This court reviews the lower
court's application of the Guidelines de novo and its findings of
fact for clear error. United States v. Brown, 7 F.3d 1155, 1159
(5th Cir. 1993).
A. Express Threat of Death
5
The district court adopted the PSI's recommendation of a two
point increase in Ashburn's offense level due to an express threat
of death. U.S.S.G. § 2B3.1 (b)(2)(F).5 While making his escape
from the July 31 robbery, several bystanders observed Ashburn exit
the bank. The observers gave chase. Ashburn stopped, turned
toward these interlopers, and, holding his hand in his pocket to
simulate the presence of a gun, shouted "Stop - I've got a gun and
I will shoot you!" Ashburn then ran toward a car occupied by his
co-defendant English, hopped in, and sped away.
The district court concluded that Ashburn's threatening
remarks to the bystanders were sufficient to justify a two point
increase in Ashburn's offense level. Ashburn contends that this
increase was in error because the Commentary to § 2B3.1 establishes
that the two level enhancement applies only when the threat is
directed at the victim of the robbery. The threat of death in this
case, contends Ashburn, was directed only at bystanders.
Therefore, according to Ashburn's interpretation of the Commentary,
the increase of two levels was improper.
The Supreme Court recently held that Commentary in the
Sentencing Guidelines "that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of, that guideline." Stinson v. United States, 113 S. Ct. 1913,
1915, 123 L. Ed. 2d 598 (1993). Thus, we are bound to follow the
5
Section 2B3.1 (b)(2)(F) specifies that, "if an express
threat of death was made, increase by 2 levels."
6
Commentary unless it can be shown to be inconsistent with the
Guidelines. In this case, because we find such an inconsistency,
we are not constrained by the Commentary's interpretation of the
Guidelines.
Ashburn relies on the Commentary to section 2B3.1 which
explains the meaning of an "express threat of death". The
Commentary states that the:
court should consider that the intent of the underlying
provision is to provide an increased offense level for
cases in which the offender(s) engaged in conduct that
would instill in a reasonable person, who is a victim of
the offense, significantly greater fear than that
necessary to constitute an element of the offense of
robbery.
U.S.S.G. § 2B3.1, note 6. According to Ashburn, this Application
Note explains that the enhancement for a threat of death is
directed at those offenders who menace victims with threats of
death. He notes that the examples cited in this Application Note,
"an oral or written demand using words such as `Give me the money
or I will kill you,'" always combine the threat of death with the
demand for money. In fact, the Application Note specifically links
the threat of death with an element of the offense. Ashburn
concludes that since escape is not an element of 18 U.S.C. § 2113,
the district court incorrectly enhanced his sentence for threats of
death.
If Ashburn is correct that a bystander cannot be a victim of
a bank robbery under the Commentary, then an inconsistency exists
between this Application Note and the section of the Guidelines on
which it is based. In such circumstances, we follow the
7
Guidelines. Stinson, 113 S. Ct. at 1918 ("If, for example,
commentary and the guideline it interprets are inconsistent in that
following one will result in violating the dictates of the other,
the Sentencing Reform Act itself commands compliance with the
guideline. See 18 U.S.C. §§ 3553 (a)(4), (b).")
The applicable Guideline simply states that "if an express
threat of death was made, increase by 2 levels." U.S.S.G. § 2B3.1
(b)(2)(F). This section is not limited to those threats made
against the victims of the bank robbery, e.g., a teller. The
Guideline does not exclude bystanders from its reach and to imply
such an exclusion would contradict the language of the Guidelines.
Thus, if the Commentary is properly construed by Ashburn, it does
not carry the force of law.
This opinion, however, should not be interpreted to hold that
any threat of death, whenever and to whomever made, suffices to
enhance a defendant's sentence. The threat must occur as part of
the commission of the bank robbery. However, as we show below, the
crime of bank robbery is ongoing during the phase in which the
defendant effects his escape. Thus, a sufficient nexus exists
between Ashburn's threat of death to bystanders and his commission
of the bank robbery for the two level enhancement under § 2B3.1
(b)(2)(F) to be proper in this case.
To determine whether a sufficient link exists between an
express threat of death made to a bystander and the commission of
the offense, we must delineate the boundaries of the crime.
Specifically, the issue before us is whether Ashburn was still
8
committing a bank robbery when he threatened to shoot the
bystanders. That is, we must ask whether Ashburn was in the
process of robbing the bank, or escaping, or both, when he menaced
the lives of these onlookers.
In United States v. Bates, 896 F.2d 912 (5th Cir.), cert.
denied, 496 U.S. 929, 110 S. Ct. 2628, 110 L. Ed. 2d 648 (1990),
this court held that in calculating a defendant's sentence, the
"district court was entitled, if indeed not required, to consider
conduct during flight in imposing sentence." Id. at 915. The
court then upheld the trial court's upward departure in the
defendant's sentence based on the mayhem committed during his
escape from a bank robbery.
Similarly, in United States v. Willis, we ruled that although
the crime of bank robbery does not require escape as an essential
element, "the crime continues throughout the escape" for the
purposes of determining the culpability of those who assist in the
perpetration of the crime. 559 F.2d 443, 444 n.5 (5th Cir. 1977).
The Willis court determined that "[t]he crime of larceny obviously
continues as long as the asportation continues and the original
asportation continues at least so long as the perpetrator of the
crime indicates by his actions that he is dissatisfied with the
location of the stolen goods . . ." Id. at 444; see also United
States v. Pate, 932 F.2d 736, 738 (8th Cir. 1991) ("A bank robbery
does not necessarily begin or end at the front doors of the
bank."); United States v. James, 998 F.2d 74, 80 (2d Cir.), cert.
denied, 114 S. Ct. 415, 126 L. Ed. 2d 362 (1993) (bank robbery
9
offense in 18 U.S.C. § 2113 (a) extends to the period of hot
pursuit). The sum of these cases is that many courts, ours
included, have found that the escape phase of the robbery can be
considered part of the offense of bank robbery under various
circumstances. We believe that the present situation is such a
circumstance.
The Guidelines intended that any threat of death, if made
during the commission of a bank robbery, would be sufficient for a
two point increase in a defendant's offense level. The Guidelines
were as concerned with the impact of death threats upon innocent
passersby as upon bank employees. Therefore, we conclude that the
trial court properly denied Ashburn's objections to the two level
enhancement to his sentence for express threat of death.
B. Consideration of Youth Corrections Act Conviction for
Criminal History Category
Ashburn contends that his 1984 bank robbery conviction is an
"expunged" conviction that, pursuant to U.S.S.G. § 4A1.2(j) should
not be included in his Criminal History Category. Section 5021 of
the YCA provides:
(a) Upon the unconditional discharge by the Commission of
a committed youth offender before the expiration of the
maximum sentence imposed upon him, the conviction shall
be automatically set aside and the Commission shall issue
to the youth offender a certificate to that effect.
18 U.S.C. 5021 (a) (1976) (emphasis added). The central question
here is whether the "set aside" language in the YCA means that the
conviction is "expunged" as that term is used in U.S.S.G. § 4A1.2
(j). Section 4A1.2 (j) provides that "[s]entences for expunged
convictions are not counted" for purposes of calculating a
10
defendant's Criminal History Category. The YCA conviction cannot
be considered in calculating Ashburn's criminal history if by "set
aside" in the YCA, Congress meant for the conviction to be
"expunged."
Ashburn contends that we are bound by this court's decision in
United States v. Arrington, 618 F.2d 1119 (5th Cir. 1980), cert.
denied, 449 U.S. 1086, 101 S. Ct. 876, 66 L. Ed. 2d 812, (1981).
In that case we reversed the defendant's conviction for possession
of a weapon by a felon because the prior conviction had been set
aside under the YCA. We stated that "[e]xpunction of Arrington's
conviction was clearly automatic upon his unconditional discharge
at the end of six years." 618 F.2d at 1124. We held that "[i]f
a youthful offender has been unconditionally discharged, the
disabilities of a criminal conviction are completely and
automatically removed; indeed, the conviction is set aside as if it
had never been." Id.6
Ashburn has overstated the reach of our holding in Arrington;
therefore, we are not persuaded that his conviction was expunged
for purposes of calculating his Criminal History Category. In
Arrington, we explicitly declined to delineate the contours of
"expungement": "We do not need to decide now if 18 U.S.C. § 50216
Ashburn also relies on the Ninth Circuit's decision in
United States v. Kammerdiener, 945 F.2d 300 (9th Cir. 1991)
holding that YCA convictions which had been set aside under §
5021 could not be counted in a defendant's criminal history
category. The court in Kammerdiener relied in part on the
circuit's prior decision in United States v. Hidalgo, 932 F.2d
805 (9th Cir. 1991) stating that "set aside" as defined in a
California youthful offender statute amounted to an expungement
under § 4A1.2 (j).
11
(a) (1976) also serves to expunge even the record of Arrington's
previous conviction. For the purposes of this appeal, defining
expunction to include at least setting aside his conviction is a
satisfactory resolution." 618 F.2d at 1124 n.8.
Congress' design in employing the term "set aside" cannot be
easily determined. We must determine whether in utilizing the "set
aside" language in the YCA, Congress intended to eliminate all
evidence of the conviction, i.e. through physical destruction of
the record of conviction,7 or whether Congress merely intended to
eradicate certain legal consequences of that conviction. If it is
the latter, then we must ascertain whether in abolishing the legal
consequences of a YCA conviction, Congress intended to also suspend
the ability of a future court to consider that conviction in
calculating a defendant's Criminal History Category.
Various courts have addressed whether the language in the YCA
mandating an "automatic[] set aside" of a YCA conviction, 18 U.S.C.
§ 5021, requires actual destruction or elimination of the record of
conviction. Most have found that the YCA does not allow a court to
authorize the actual physical obliteration of the record of
conviction. See United States v. Doe, 732 F.2d 229 (1st Cir.
1984); United States v. Doe, 556 F.2d 391 (6th Cir. 1977); United
States v. McMains, 540 F.2d 387 (8th Cir. 1976); but see United
7
We note the Tenth Circuits definition of expunction as
follows: "[w]ith respect to criminal records, expunction refers
to the process of sealing or destroying the record of a criminal
conviction after expiration of a certain time." United States v.
Johnson, 941 F.2d 1102, 1111 (10th Cir. 1991) (citing Black's Law
Dictionary at 522 (5th ed. 1979)).
12
States v. Doe, 980 F.2d 876 (3d Cir. 1992). These cases generally
hold that if Congress meant to "expunge" the records in the sense
of making them wholly unavailable through segregation and seal or
through complete destruction, it would have so specified in the
statute. See, e.g., Doe, 732 F.2d at 230 (1st Cir.) (district
court correctly refused to order records destroyed because "we do
not see how this relief can be granted without rewriting the
statute, since the statute makes no reference to arrest records.")
In addition, these courts reasoned that because the arrest
records of those who are acquitted or not prosecuted at all remain
in the general police files, "[t]o destroy or segregate the present
arrest records would leave a convicted person with a cleaner slate
than an arrestee who was never found guilty." Id. Finally, the
First Circuit looked to the legislative history of the YCA and
found nothing to support the conclusion that Congress intended to
allow an expungement of the actual records of a YCA conviction.
Id.; contra Doe, 980 F.2d at 879-82 (3d Cir.) (history of act
indicates drafters wanted youthful offenders who served their time
and rehabilitated themselves to have the stigma wiped out). With
the exception of the Third Circuit's recent Doe decision, our
sister circuits have generally agreed that the "set aside"
provision in § 5021 (a) is not an expungement in the sense of
obliterating or even segregating and sealing the records of
conviction.
Similarly, we decide today that the "set aside" provision
should not be interpreted to be an expungement under § 4A1.2 (j) in
13
calculating a defendant's criminal history category. The
Commentary to § 4A1.2 (j) explains that convictions which are set
aside for "reasons unrelated to innocence or errors of law, e.g.,
in order to restore civil rights or to remove the stigma associated
with a criminal conviction" are not expunged for purposes of this
Guideline and can be included in Criminal History Category
determinations. Because the YCA conviction here was set aside for
"reasons unrelated to innocence or errors of law," it was properly
utilized in the criminal history calculation.
The legislative history of section 5021 supports our analysis.
The amendment's sponsor, Senator Dodd, testified that section 5021:
provides an additional incentive for maintaining good
behavior by holding out to the youth an opportunity to
clear his record . . . For those who demonstrate a
willingness to help themselves, every reasonable
opportunity is afforded to assist them in making a new
start.
107 Cong.Rec. 8709 (1961). The YCA was designed to give the young
defendant a new lease on life. Congress determined that a
spontaneous, youthful transgression should not inhibit a person's
evolution into productive citizenship. However, this beneficent
offer of a "second chance" to the immature offender should not be
available as a shield for those whose original encounter with the
criminal world is used as a springboard to a life of felonious
conduct. We agree with the rationale of the D.C. Circuit that
"[i]f a juvenile offender turns into a recidivist, the case for
conferring the benefit dissipates. Society's stronger interest is
in punishing appropriately an unrepentant criminal." United States
v. McDonald, 991 F.2d 866, 872 (D.C.Cir. 1993) (quoting Barnes v.
14
United States, 529 A.2d 284, 286-89 (D.C. 1987)) (citations
omitted). The YCA was not intended to allow a person convicted
under its auspices to rewrite his life when his handwriting shows
that post-conviction activities are criminal in nature.
In sum, the YCA conviction, which under section 5021 (a) is
automatically "set aside" upon release of the defendant, should not
be considered expunged for purposes of calculating the defendant's
Criminal History Category. Although the language of section 5021
is not as clear as it should be, we believe that Congress did not
intend that it be used to protect the recidivist from the full
consequences of his actions. The district court, therefore, acted
properly in considering this conviction.
C. Upward Departure
Ashburn complains that the district court improperly imposed
an upward departure pursuant to U.S.S.G. § 4A1.3. He argues that
the departure from a Guideline range of 63-78 months to a sentence
of 180 months was excessive and unjustified and based on conduct
dismissed pursuant to a plea bargain or not established by
sufficient evidence.
A district court may upwardly depart from the Sentencing
Guidelines if the court finds that an aggravating circumstance
exists that was not adequately taken into consideration by the
Sentencing Commission. 18 U.S.C. § 3553 (b). Whenever a defendant
is sentenced, the district judge is required to "state in open
court the reasons for its imposition of the particular sentence."
18 U.S.C. § 3553 (c). If the court upwardly departs from the
15
Guidelines, the court must also state "the specific reason for the
imposition of the sentence different from that described." Id.We review the district court's decision to upwardly depart for
abuse of discretion. United States v. McKenzie, 991 F.2d 203, 204
(5th Cir. 1993). We will affirm a departure from the Guidelines
"if the district court offers `acceptable reasons' for the
departure and the departure is `reasonable.'" United States v.
Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc) (quoting
United States v. Velasquez-Mercado, 872 F.2d 632, 637 (5th Cir.
1989)). Under U.S.S.G. § 4A1.3, an upward departure "is warranted
when the Criminal History Category significantly under-represents
the seriousness of the defendant's criminal history or the
likelihood that the defendant will commit further crimes."
1. Adequacy of Departure Justification
We have previously outlined the procedure for making an upward
departure where the defendant's Criminal History Category is
inadequate. Lambert, 984 F.2d at 662-63. To upwardly depart under
U.S.S.G. § 4A1.3, district courts must first consider adjusting the
defendant's Criminal History Category to the next higher category.
Id. at 661. The sentencing court must then evaluate each
successive Criminal History Category above the appropriate
Guideline range. U.S.S.G. § 4A1.3. In Lambert, we explained:
the district court should consider each intermediate
criminal history category before arriving at the sentence
it settles upon; indeed, the court should state for the
record that it has considered each intermediate
adjustment. Further, it should explain why the criminal
history category as calculated under the guidelines is
inappropriate and why the category it chooses is
appropriate.
16
984 F.2d at 662-63. However, recognizing the complexities inherent
in setting a sentence appropriate to every defendant, "we do not .
. . require the district court to go through a ritualistic exercise
in which it mechanically discusses each criminal history category
it rejects en route to the category that it selects." Id. at 663.
Before we progress any further in our analysis, we will set
out the reasons advanced by the sentencing court in justifying an
upward departure in this case. The judge determined that had the
robbery offenses committed in December of 1991, January of 19928,
and April 19929 been considered in his Criminal History Category,
Ashburn would have received nine extra criminal history points.
Under the court's calculations, Ashburn would then have a total of
twelve criminal history points and a corresponding Criminal History
Category of V. When considered with an Ashburn's offense level of
25, the judge figured that Ashburn was facing a Guideline range of
100 to 125 months.
The court then cited the 1984 YCA convictions and concluded
that "if they were to be taken into account, the Criminal History
Category VI would not be sufficient to take into account his past
criminal conduct." The court at this time referenced various
attempted robberies which Ashburn's co-defendant had imputed to
him. The court stated that given the "likelihood the defendant
8
The December 1991 and January 1992 robberies had been
Counts 1 and 2 of the indictment and were dismissed pursuant to
the plea bargain.
9
Ashburn was never indicted on the allegations of the April
1992 bank robbery.
17
will commit other crimes . . . as well as the seriousness of his
past criminal conduct" the court would impose a "rather drastic
upward departure from what the guideline range contemplates." The
judge then fixed a sentence of 180 months, found by indexing the
Criminal History Category of VI with an offense level of 29.
The sentencing judge, in sum, did provide some substantive
explanation for his decision to upwardly depart. However, the
sentence actually given was 230 per cent of the maximum Guideline
range. The court, therefore, should have given a detailed
accounting of how it reached this rather severe enhancement. In
Lambert, we explained that "[i]n a very narrow class of cases, we
can conceive that the district court's departure will be so great
that, in order to survive our review, it will need to explain in
careful detail why lesser adjustments in the defendant's criminal
history score would be inadequate." 984 F.2d at 663. The instant
case is the sort of drastic departure that the Lambert court had in
mind in this passage.
The sentencing judge failed to make explicit the bulk of the
reasoning behind his decision to depart. Additionally, the judge
did not justify the overall magnitude of the upward departure. We
are therefore compelled to vacate the sentence and remand this case
to the district court for resentencing.
To begin with, the sentencing judge failed to indicate why the
Criminal History categories of III and IV should be bypassed. He
merely assessed the unindicted and dismissed robberies as prior
sentences under the Criminal History Category. The court failed to
18
indicate why it thought such a calculation, contrary to the
requirements of the Guidelines, was necessary.10 The judge also
failed to indicate why he believed the Criminal History Category V
was inadequate and why the jump to VI was required.
The judge's reference to Ashburn's previous YCA convictions in
upwardly departing is also insufficient as a justification for the
upward departure since this conduct had already been considered in
the calculation of the Criminal History Category. To avoid double
counting, it is necessary for the court to demonstrate why the
Criminal History Category calculation inadequately reflected the
seriousness of Ashburn's crime. Without more detailed explanation,
the district court should not have included this prior sentence in
its consideration.
In addition, the lower court did not indicate why even
Criminal History Category VI was inadequate, thereby justifying an
increase in the offense level from 25 to 29 in the final sentence.11
Such a radical departure from the requirements of the Guidelines
cannot be justified by simple recitation of the language of § 4A1.3
that the Criminal History Category failed to reflect the
probability of recidivism and the wrongfulness of the defendant's
10
The Guidelines include only prior sentences, not prior
offenses or prior conduct, in calculating the Criminal History
Category. U.S.S.G. § 4A1.1.
11
The Guidelines themselves explicitly state that a
departure beyond Criminal History Category VI is for the "case of
an egregious, serious criminal record in which even the guideline
range for Criminal History Category VI is not adequate to reflect
the seriousness of the defendant's criminal history." U.S.S.G.
4A1.3 (policy statement).
19
prior acts.12 Mouthing of the court's authority under § 4A1.3 to
depart where the criminal history category "does not adequately
reflect the seriousness of the defendant's past criminal conduct or
the likelihood that the defendant will commit other crimes" does
not meet the sentencing court's burden of adequately justifying an
upward departure. Recidivism and seriousness are not magic words
which by their mere utterance empower the judge to depart from the
Guidelines.
Our Lambert decision requires a judge departing from the
guidelines to make various showings. First, the sentencing court
must indicate that he or she has considered the intermediate
categories. Lambert, 984 F.2d at 662. This was partially
accomplished in this case. However, given the large number of
categories skipped, a more detailed consideration of intervening
categories should have been given. Second, the sentencing judge is
required to show why the Criminal History Category as calculated
under the guidelines is inadequate. Id. The sentencing judge in
the instant case failed to comply with this requirement. Although
he reiterated his belief that the Criminal History Category was
inadequate, he failed to provide any illumination as to why this
was so. Third, the court must show why the sentence it settles
upon is appropriate. Id. at 663. This was nowhere accomplished by
the judge sentencing Ashburn. Finally, the sentencing judge should
12
The Second Circuit has held that an upward departure
beyond criminal history category VI would be justified under
"only the most compelling circumstances--for example, prior
misconduct accompanied by wanton cruelty. . ." United States v.
Cervantes, 878 F.2d 50, 55 (2d Cir. 1989).
20
make sufficient reference to the factual record in justifying the
departure. In this case, more detailed references to the record
were essential, especially since the judge made an upward departure
of nine years over the top of the applicable Guideline range.
Lambert's words are not empty slogans. The type of departure
imposed in this case calls for strict adherence to its commands.
The sentencing court, in addition to justifying the particular
steps of the upward departure, should be able to justify the
overall magnitude of that departure. As the Tenth Circuit stated,
"[b]ecause a judge who departs no longer strictly follows the
standards of the Guidelines, uniformity is threatened. The
relative lack of constraint accompanying departures also threatens
the principle of proportionality." United States v. Jackson, 921
F.2d 985, 988 (10th Cir. 1990). The exercise of restraint and
moderateness in the situation of departures is therefore of great
importance.
There has been much written about the Sentencing Guidelines
and all of its appendices and commentaries. Some doubt has arisen
as to their effectiveness in controlling crime and in their
capacity for equalizing sentences based on actual criminal
activities. Suffice it to say that requiring specificity in the
reasoning of district judges will assure that appellate courts
fulfill their role as intelligent overseers capable of carrying out
the lofty intentions that animate the Guidelines.
Because the court did not adequately comply with 18 U.S.C. §
3553 (c) in explaining the reasons for the upward departure, we are
21
compelled to set aside Ashburn's sentence and to remand the case
for resentencing and for more detailed explication of any upward
departure the court finds appropriate.
2. Consideration of Prior Conduct in Upward Departure
Ashburn raises three additional concerns about the three prior
robberies that the court considered in making the upward departure.
We address each argument in turn.
a. Contemporaneous crimes
Ashburn first complains that the court should not have
considered the robberies because they were contemporaneous with the
counts upon which he was sentenced. In United States v. Coe, 891
F.2d 405 (2d Cir. 1989), the Second Circuit determined that "where
a defendant commits a series of similar crimes, it would be
elevating form over substance to regard the early episodes in the
series as `prior criminal history' simply because the defendant
pled guilty to the last in the series, rather than the first." Id.
at 409-10. However, the prior acts considered by the district
court in the instant case occurred seven, six and three months
prior to the offenses upon which Ashburn pleaded guilty. His
situation is therefore not analogous to the contemporaneous crime
spree faced by the court in Coe in which all the offenses occurred
within two weeks of each other. Thus, we find no merit in
Ashburn's argument that the sentencing court improperly considered
contemporaneous acts in its decision to upwardly depart based on
the inadequacy of the Criminal History Category.
b. Dismissed Offenses
22
Ashburn also contends that the sentencing court improperly
considered the December 1991 and January 1992 robberies as a basis
for upward departure because this conduct formed the basis for the
counts of Ashburn's indictment which were dismissed pursuant to his
plea bargain. We agree. Counts which have been dismissed pursuant
to a plea bargain should not be considered in effecting an upward
departure. United States v. Fine, 975 F.2d 596, 602 (9th Cir.
1992) (en banc); United States v. Castro-Cervantes, 927 F.2d 1079(9th Cir. 1990).
To allow consideration of dismissed counts in an upward
departure eviscerates the plea bargain. Such consideration allows
the prosecutor to drop charges against a defendant in return for a
guilty plea and then turn around and seek a sentence enhancement
against that defendant for the very same charges in the sentencing
hearing. Cf. United States v. Thomas, 961 F.2d 1110, 1121 (3d Cir.
1992) (government should not be allowed to bring dismissed charges
"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.")
Prior to the enactment of the Guidelines, no limits were
placed on the information a sentencing court could consider in
fashioning a sentence. The federal courts utilized a real-offense
sentencing approach in which the sentencing judge could consider
any conduct by the defendant whatsoever in setting a sentence,
including all offenses committed by the defendant whether
dismissed, unindicted, or the basis of an earlier conviction.
23
Appellate review under this system was, as a result, dramatically
circumscribed. The legislative history of the Sentencing
Guidelines indicates that the absence of appellate review in pre-
Guidelines cases was a result of the fact that "sentencing judges
have traditionally had almost absolute discretion to impose any
sentence legally available in a particular case." S. Rep. No. 225,
98th Cong., 1st Sess. 149, 150 (1983) reprinted in 1984
U.S.C.C.A.N. 3332.
The Guidelines were enacted to bring uniformity and
predictability to sentencing. The Sentencing Guidelines "are
intended to afford enough guidance and control of the exercise of
[the district court's] discretion to promote fairness and
rationality, and to reduce unwarranted disparity, in sentencing."
Id. Appellate review of sentences to effectuate the desired
uniformity and predictability is essential to the structure of the
Guidelines. Id. This rationalized sentencing approach included a
modification of the real-offense sentencing program aimed at
limiting the information a sentencing court could take into account
in setting a defendant's sentence. U.S.S.G. § 1B1.3, note 8; see
also Stephen Breyer, The Federal Sentencing Guidelines and the Key
Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 11 (1988)
("A sentencing guideline system must have some real elements, but
not so many that it becomes unwieldy or procedurally unfair. The
Commission's system makes such a compromise.").
In modifying the real-offense approach, the Sentencing
Commission refused to adopt a pure charge-offense approach in which
24
only the conduct actually charged could be considered in
sentencing. It instead limited in specific ways the information
the sentencing judge could consider in setting a sentence. See
United States v. Kim, 896 F.2d 678, 682-3 (2nd Cir. 1990) (setting
out the four ways in which acts of misconduct other than the
offense of conviction could be considered by a sentencing court).
The Commission delineated the particular information which it found
relevant and appropriate for consideration in setting a sentence
and left to the appellate courts the role of enforcing those
limits.
In sum, preservation of limits on what sentencing courts can
consider by way of sentencing is an essential part of the structure
of the Guidelines. We find that consideration of dismissed
offenses as a basis for an upward departure under § 4A1.3 is a
breach of that structure. We adopt the reasoning outlined by the
Ninth Circuit that a sentencing court should not be allowed to
violate the bargain worked out between the defendant and the
government. Castro-Cervantes, 927 F.2d at 1082; United States v.
Saldana, 12 F.3d 160, 163 (9th Cir. 1993); see also United States
v. Ruffin, 997 F.2d 343, 346 (7th Cir. 1993) (allowing
consideration of offenses dismissed pursuant to plea bargains prior
to the presently charged offenses, distinguishing Castro-Cervantes
on the grounds that it "holds no more than that a defendant who
pleads guilty receives the Guideline sentence for the crime to
which he pleaded."); but see United States v. Zamarripa, 905 F.2d
337, 341 (10th Cir. 1990) (when a defendant pleads to one in a
25
series of offenses, some of which are dismissed, an upward
departure is allowable based on the dismissed counts.).
The Ninth Circuit has stated that allowing consideration of
dismissed counts in sentencing "would undermine the integrity of
the plea bargaining system [and] . . . would severely undermine the
incentive of defendants to enter into plea bargains." United
States v. Faulkner, 952 F.2d 1066, 1070 (9th Cir. 1991). Given
that close to eighty five percent of federal convictions are plea
bargained, the integrity of this system is vital to our national
system of criminal justice. See United States Sentencing Comm'n,
Supplementary Report on the Initial Sentencing Guidelines and
Policy Statements, at 48 n.80 (1987).
Just as civil society depends upon the judicial enforcement of
private contracts between individuals, the institutions of criminal
justice depend on the fair and equitable enforcement of plea
bargains. We should not tamper with this system by allowing the
government to violate its bargain and the whole plea bargain
process and bring dismissed offenses back in for the purposes of
upward departures under § 4A1.3.
The sentencing court has the power to reject a plea agreement
if it does not "adequately reflect the seriousness of the actual
offense behavior." U.S.S.G. § 6B1.2 (policy statement). Having
accepted the agreement, however, the court should not allow the
government to violate "the spirit if not the letter of the bargain"
by considering the dismissed offenses as a basis for an upward
departure. Castro-Cervantes, 927 F.2d at 1082.
26
The government asserts that a 1992 amendment to the Guidelines
contradicts our argument. The Sentencing Commission altered
U.S.S.G. § 6B1.2 to provide that if a plea agreement includes a
dismissal of charges, the agreement, "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." This amendment, the
government argues, provides a basis for considering the conduct of
the defendant even if dismissed pursuant to a plea agreement.
The difficulty with the government's position is that in this
case, the dismissed counts were not counted as relevant conduct in
setting Ashburn's offense level.13 The sentencing court instead
considered the dismissed counts in making an upward departure based
on the inadequacy of the defendant's Criminal History Category.
The Ninth Circuit has observed precisely this distinction, allowing
consideration of dismissed counts in the case of relevant conduct,
but not for upward departures pursuant to § 4A1.3. See Fine, 975
F.2d at 602-03. In United States v. McAninch, 994 F.2d 1380 (9th
Cir.), cert. denied, 114 S. Ct. 394, 126 L. Ed. 2d 342 (1993), the
court found that dismissed counts could be considered as relevant
conduct pursuant to section 1B1.3 (a)(2). However, the court was
careful to distinguish and reaffirm the court's "previous holding
in [Castro-Cervantes] that a court may not depart upward from the
13
Ashburn was convicted of bank robbery, which under the
guidelines is a non-groupable offense. Thus, the dismissed
counts could not be considered within the relevant conduct of
U.S.S.G. § 1B1.3 (a)(2).
27
guidelines sentence on the basis of dismissed charges." 994 F.2d at
1383 (emphasis in original).
The reasoning put forward by the Fine court bears repeating:
A person who pleads guilty under the sentencing
guidelines may be entitled to expect that he will receive
the guidelines sentence, not a sentence which departs
upward. The guidelines put a cap on his exposure,
usually well below the statutory maximum.
975 F.2d at 602. By contrast, where the sentencing court considers
the dismissed counts as relevant conduct, for example by grouping
stipulated amounts of drugs which had been the subject of counts
dismissed pursuant to a plea bargain, Fine states that "[t]he
reasonable expectation . . . of a sentence in accord with the
guidelines, was honored by the sentence imposed on [the
defendant]." Id.Consideration of dismissed counts as relevant conduct is
explicitly allowed by the guidelines. However, the bar to
considering dismissed counts in making upward departures remains an
important limitation in the modified real-offense sentencing
approach of our current sentencing program. Allowing consideration
of dismissed offenses would bring us much closer to the type of
pure real-offense sentencing system explicitly rejected by the
Guidelines. Such upward departures also contradict the
Commission's commitment to maintaining uniformity and fairness in
sentencing by significantly expanding the bases for making
acceptable upward departures. S. Rep. No. 225, 98th Cong., 1st
Sess. at 150 reprinted in 1984 U.S.C.C.A.N. at 3333. We think that
the overall ends of the Sentencing Guidelines are best served by a
28
rule which prevents the government, and the sentencing judge, from
considering counts dismissed pursuant to a plea bargain in
requesting or carrying out an upward departure under § 4A1.3.
c. Unreliability of Evidence of Prior Conduct
Ashburn raises a final contention regarding the propriety of
his upward departure. He claims that the upward departure is based
on unreliable information and therefore cannot be considered under
§ 4A1.3. Ashburn contends that the only evidence connecting him to
the offenses considered in the upward departure was the unsworn
accusations of his co-defendant, English. Unsworn assertions
generally "do not bear `sufficient indicia of reliability to
support [their] probable accuracy', and, therefore, should not
generally be considered by the trial court in making its factual
findings." United States v. Alfaro, 919 F.2d 962, 966 (5th Cir.
1990) (quoting U.S.S.G. § 6A1.3 (a)).
However, a district court has wide discretion in evaluating
the reliability of the information presented before it and making
the determination as to whether or not to consider it. United
States v. Kinder, 946 F.2d 362, 366 (5th Cir. 1991), cert. denied,
112 S. Ct. 1677, 118 L. Ed. 2d 394 (1992). The district court need
only determine its factual findings by a "preponderance of the
relevant and sufficiently reliable evidence." Alfaro, 919 F.2d at
965.14 The defendant bears the burden of proving that the evidence
14
In Alfaro, we denied a defendant's challenge to the
sentencing court's factual findings where the defendant "did not
request an evidentiary hearing on the issue, nor did he submit
affidavits or other sworn testimony to rebut the evidence
contained in the officer's affidavit and the presentence report."
29
used against him in sentencing is "materially untrue, inaccurate or
unreliable." United States v. Angulo, 927 F.2d 202, 204 (5th Cir.
1991). "Specific factual findings . . . are reviewed on appeal
only for clear error." Id. at 205.15
Given our holding with regard to dismissed counts, the
December 1991 and January 1992 offenses are unavailable for
consideration in making an upward departure. However, the
allegations of Ashburn's participation in the bank robbery in
Florida as well as the attempted robberies remain available for
evaluation in assessing the adequacy of the Criminal History
Category.
The district court should nevertheless consider the
defendant's objections to these factual findings in light of the
longstanding suspicion and presumptive unreliability of unsworn
statements of co-defendants. In United States v. Flores, we held
that confessions of co-defendants are "presumptively unreliable as
to the passages detailing the defendant's conduct or culpability
because those passages may well be the product of the codefendant's
desire to shift or spread blame, curry favor, avenge himself, or
divert attention to another." 985 F.2d 770, 776 (5th Cir. 1993)
(quoting Lee v. Illinois, 476 U.S. 430, 545, 106 S. Ct. 2056, 2064,
90 L. Ed. 2d 514 (1986)). Because we have set aside the prior
919 F.2d at 966.
15
We note that Ashburn has failed show that the statements
made by English were untrue. However, because English herself
did not testify, no cross-examination of her testimony was
possible.
30
sentence, the court on remand can evaluate in light of these
precedents whether, under the circumstances of the co-defendant's
testimony through the FBI agent, sufficient evidence exists to
support a factual finding as to these previous robberies.
III. Conclusion.
This opinion discusses a number of elements of the guidelines
and its many satellitic disquisitions. We affirm the holding of
the lower court with regard to the two level enhancement for
express threat of death as we see no reason to artificially limit
the commission of the defendant's crime to the moments when he is
actually in the bank. Next, because Congress did not provide the
"set aside" provisions of the YCA for use as a protective shield in
carrying out a life of crime, Ashburn's prior YCA convictions were
properly counted in calculating his criminal history category.
There are two final holdings. First, we find that a
sentencing court has an obligation to explain the factual or legal
justifications for making a guideline departure from 78 to 180
months. It does not take any stretch of the imagination to
determine that this is a significant, if not radical departure, and
we impose a legal requirement that the departing judge provide a
legal explanation for that diversion. Second, we hold that it is
only under unusual circumstances that counts dismissed pursuant to
a plea agreement can be brought again into the foreground for
punishment. We cannot allow one party to forsake a plea agreement
to which the other party has remained faithful.
31
The sentence set by the lower court is therefore VACATED and
this case is REMANDED for resentencing in accordance with this
opinion.
DAVIS, Circuit Judge, concurring in part, dissenting in part:
I totally agree with the majority that this case should be
remanded so the district court can give further consideration to
its sentence. Unlike the majority, on remand I would not foreclose
the district court from considering in the upward departure
calculus the prior bank robberies the defendant was charged with
committing in Counts 1 and 2 of this indictment.
As the majority opinion reflects, the circuits are split over
this question. The majority relies on the opinions of the Ninth
and Third Circuits.16 These cases hold, as do the majority, that
the defendant does not get the benefit of his plea bargain when the
district court upwardly departs based on the dismissed counts of
the indictment. I agree with the Second and Tenth Circuits17 that
no reasonable basis exists for a defendant who enters a guilty plea
to believe that the court cannot use the prior criminal conduct
from the dismissed counts of the indictment to enhance his
sentence. Ashburn's plea bargain had no language that could have
16
United States v. Fine, 975 F.2d 596, 602 (9th Cir.
1992) (en banc); United States v. Castro-Cervantes, 927 F.2d
1079 (9th Cir. 1990); United States v. Thomas, 961 F.2d 1110,
1121 (3d Cir. 1992).
17
United States v. Kim, 896 F.2d 678 (2d Cir. 1990);
United States v. Zamarripa, (10th Cir. 1990).
32
led him to that conclusion. It provided that the government would
dismiss two of the counts and the government fully complied with
that obligation.
I also find nothing in the guidelines themselves that would
lead a defendant to reasonably expect that the conduct underlying
the dismissed counts could not be used to enhance his sentence.
The general guideline authorizing departure, § 5K2.0 does so in
very broad terms. It authorizes the court to impose a sentence
outside the guideline range if the court 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. . . ." More specifi-
cally, 4A1.3 authorizes a court to depart "[i]f reliable informa-
tion indicates that the criminal history category does not
adequately reflect the seriousness of the defendant's past criminal
conduct or the likelihood that the defendant will commit other
crimes, . . .."
In deciding whether to depart because of the defendant's
criminal history, subsection (e) expressly authorizes the court to
consider "prior similar adult criminal conduct not resulting in a
criminal conviction." Neither this guideline nor its commentary
suggests that an exception exists for prior similar criminal
conduct that is the subject of dismissed counts of an indictment.
Because nothing in the plea agreement or the guidelines
prevents the district court from considering the criminal acts
underlying the dismissed counts, I would not require the district
33
judge to close his eyes to this conduct.
34