U.S. v. Sicken, PLAINTIFF-APPELLANT

Citation223 F.3d 1169,2000 WL 1153265
Decision Date15 August 2000
Docket NumberPLAINTIFF-APPELLANT,No. 99-1166
Parties(10th Cir. 2000) UNITED STATES OF AMERICA,, v. DANIEL HARRIS SICKEN; OLIVER SACHIO COE, ALSO KNOWN AS OLIVER HYDON, DEFENDANTS- APPELLEES
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 98-CR-339-WM)

Sean Connelly, Assistant U.S. Attorney (Thomas L. Strickland, United States Attorney, and Bernard E. Hobson, Assistant U.S. Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellant.

Scott Poland of Poland & Wheeler, Lakewood, Colorado, and Richard N. Stuckey, Denver, Colorado, for Defendants-Appellees.

Before Brorby, McKAY, and Briscoe, Circuit Judges.

McKAY, Circuit Judge

The United States appeals the district court's four-level downward departure in sentencing two anti-nuclear protestors who broke into and damaged a secured intercontinental ballistic missile site. Pursuant to 18 U.S.C. § 3742(b), the government challenges the ability of the district court to depart downward. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.

I.

Defendants Daniel Harris Sicken and Oliver Sachio Coe are anti-nuclear protesters and members of an organization called the Plowshares Movement. On August 6, 1998, they broke into an unmanned nuclear missile facility in Weld County, Colorado, by cutting barbed wire and scaling a fence. Operated by the United States Air Force, the facility contained a Minuteman III intercontinental ballistic missile capable of being armed with three separate nuclear warheads. At trial, Defendants stated that their purpose in breaking into the site was to perform an anti-nuclear protest by "disarm[ing] nonviolently and symbolically." R., Vol. 4 at 416. Once on the grounds of the facility, Defendants used sledgehammers and chisels to damage components of the site, including an electrical junction box, the concrete blast door to the underground missile silo, and the rails on which the blast door moved. They also poured water into a circuit and a security pit, hung banners, and used spray paint mixed with blood to paint slogans and designs on site components. After committing these acts, Defendants waited on the site for military authorities to arrive and arrest them. Their actions caused approximately $21,000 in damages, and repairs were estimated to take about 410 work hours.

On October 8, 1998, Defendants were charged with three counts in a superseding indictment: (1) conspiracy to injure, destroy, and contaminate national defense materials and premises of the United States with intent to injure, interfere with, and obstruct the national defense of the United States in violation of 18 U.S.C. § 2155; (2) willful and unlawful destruction of national defense materials and premises in violation of 18 U.S.C. § 2155(a), otherwise known as sabotage; and (3) willful and unlawful destruction of United States property in violation of 18 U.S.C. § 1361. Defendants were tried by a jury and convicted on all counts.

In sentencing Defendants, the district court adopted the findings and recommendations of the presentence report. Section 2M2.3 of the United States Sentencing Guidelines sets the base offense level at twenty-six for counts one and two. The applicable guideline for count three is U.S.S.G. § 2B1.3, which sets the offense level at four. Because the three counts were closely related, i.e., they involved substantially the same harm, victim, and act, they were grouped together under § 3D1.2(a). According to § 3D1.3(a), the highest offense level (twenty-six under § 2M2.3(a)) applied. The court then reduced Defendants' base offense levels by three levels to twenty-three for Defendants' acceptance of responsibility under § 3E1.1. See R., Vol. 6 at 15. Consequently, Mr. Sicken had an offense level of twenty-three and a criminal history category III, resulting in a sentencing range from fifty-seven to seventy-one months. See id., Vol. 1, Doc. 85 at 7; Vol. 6 at 16. Mr. Coe also had an offense level of twenty-three, but his criminal history category was I, which resulted in a sentencing range from forty-six to fifty-seven months. See id., Vol. 1, Doc. 84 at 7; Vol. 6 at 15.

The district court rejected Defendants' arguments for sentencing under the property damage charge, 18 U.S.C. § 1361, rather than the sabotage charge, and for downward departures based on the lesser harm guideline, U.S.S.G. § 5K2.11, and the "coercion and duress" guideline, § 5K2.12. See R., Vol. 6 at 34-38. However, the court asked the parties to brief whether a departure under U.S.S.G. § 5K2.0 was proper where aggravating or mitigating circumstances are not adequately considered by the applicable guideline, § 2M2.3. The court was concerned with the fact that § 2M2.3 did not recognize differences in conduct and thus did not provide any adjustments based on the severity of offense conduct. See id. at 39 (stating that destroying an "enormous bomber" or merely painting or damaging the surface of "some facility connected with defense" would be treated the same).

After reviewing the materials submitted by the parties, including the only case where civilian anti-nuclear protesters were sentenced under 18 U.S.C. § 2155, United States v. Kabat, 797 F.2d 580 (8th Cir. 1986), and a 1997 proposed but unadopted amendment to U.S.S.G. § 2M2.3 in which upward and downward departures for sabotage were discussed, see Sentencing Guidelines of the United States Courts, 62 Fed. Reg. 152, 196 (1997) (proposed Jan. 2, 1997), the court concluded that this situation warranted a departure from the offense level dictated by § 2M2.3.

Specifically, the court stated at the sentencing hearing that if Kabat "somehow indicates our heartland, it suggests at least that maybe the heartland doesn't necessarily include one sentence." R., Vol. 6 at 40. By this, it appears that the court was impressed by the gradations in sentences imposed in Kabat. The court's decision to depart also was influenced by the fact that the Guidelines as a whole include "all kinds of gradations" for the severity of offense conduct. Id. And finally, the court considered the Sentencing Commission's proposed 1997 amendment to § 2M2.3. Rejecting the government's argument that the Sentencing Commission did not adopt the proposed amendment because it intended to prevent any gradation or variance in sentences, the court reasoned that "as a matter of general principle... the failure to pass some law doesn't mean it's been rejected." Id. at 42.

The court then determined that, applying Koon v. United States, 518 U.S. 81 (1996), departure was neither forbidden nor encouraged. See R., Vol. 6 at 42. It reviewed the factors articulated in the proposed amendment that might support or negate a departure, stating that there is a clear difference between "an act of protest, which this clearly was, in peacetime as opposed to an act of sabotage during war," id. at 43; that the acts caused some harm but there was no substantial risk of death or injury, see id. at 44; and that there was no "truly significant or substantial" risk to national security. Id. For these reasons, the court granted a four-level downward departure under § 5K2.0.

In the judgments entered on March 5 and 9, 1999, the court restated its reasons for departing downward:

Pursuant to U.S.S.G. § 5K2.0, there are mitigating circumstances not adequately taken into consideration under [the] Guidelines.

1) There is no real historical record to determine the "heartland" of these cases.

2) [There are no] Offense Severity Gradations in U.S.S.G. § 2M2.3. [The court] [n]eed[s] to be able to distinguish between the little or no harm to national security caused by a peace-time protest and the harm caused by a major destructive act in wartime.

Id., Vol. 1, Doc. 85 at 7; see id., Doc. 84 at 7. The departure resulted in an offense level of nineteen for each defendant, which reduced their sentence ranges by sixteen months. The district court imposed concurrent sentences of forty-one months on Defendant Sicken for each of the three counts, and it imposed concurrent sentences of thirty months for Defendant Coe for the same counts. The court also sentenced each defendant to three years' supervised release and ordered each to pay restitution in the amount of $21,299.40.

In challenging the district court's departure under § 5K2.0, the government makes several arguments. We address each of these arguments in turn.

II.

The Sentencing Guidelines provide that each guideline carves out a "heartland," "a set of typical cases embodying the conduct that each guideline describes." U.S.S.G. ch. 1, pt. A, subpt. 4(b). The Guidelines explain that "[w]hen a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted." Id. As a result, a sentencing court may depart from the Guidelines and impose a sentence outside the guideline range where 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.'" Id. § 5K2.0 (quoting 18 U.S.C. § 3553(b)).

We review a sentencing court's decision to depart under a unitary abuse-of-discretion standard which "includes review to determine that the discretion [of the district court] was not guided by erroneous legal conclusions." See Koon v. United States, 518 U.S. 81, 100 (1996); United States v. Collins, 122 F.3d 1297, 1302 (10th Cir. 1997). According to the Supreme Court, in promulgating the Guidelines, "Congress did not intend... to vest in appellate courts wide-ranging authority over district court sentencing decisions." Koon, 518 U.S. at 97. "Rather, Congress meant to `establish[ ] limited appellate review' where `district courts retain much of their traditional sentencing discretion.'"...

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