U.S. v. Craven

• Decision Date: 05 December 2000
• Docket Number: No. 00-1740,00-1740
• Citation: 239 F.3d 91
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellant, v. ALFRED CRAVEN, Defendant, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 91

239 F.3d 91 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellant, v. ALFRED CRAVEN, Defendant, Appellee.

No. 00-1740

United States Court of Appeals For the First Circuit

Heard December 5, 2000

Decided February 6, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Michael D. Ricciuti, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellant.

Stephen B. Hrones, with whom Hrones & Garrity was on brief, for appellee.

Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Boudin, Circuit Judge.

SELYA, Circuit Judge.

In this sentencing appeal, the government, qua appellant, protests the district court's reliance, in granting a downward departure for extraordinary presentence rehabilitation, on an ex parte conversation with a court-appointed psychologist. The defendant, Alfred Craven, resists the government's appeal and simultaneously attempts to persuade us that the Supreme Court's recent decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), demands further paring of his sentence. Because Craven has not cross-appealed, his Apprendi-based claim is not properly before us and we refrain from burrowing into its merits. This leaves the government's appeal -- an appeal which requires us to consider the district court's authority vel non to engage in ex parte discussions of substantive matters with court-appointed experts. We conclude that the sentencing court erred in undertaking, and then basing its departure decision on, an ex parte communication. Hence, we vacate Craven's sentence and remand for resentencing.

I. BACKGROUND

On June 23, 1999, Craven pleaded guilty to nine counts arising from his involvement in a massive marijuana distribution scheme. A series of sentencing hearings ensued. At the first session, held on December 13, 1999, the district court tentatively fixed the guideline sentencing range (GSR) at 235-293 months, based on an adjusted offense level of thirty-six (including, inter alia, a three-level downward adjustment for acceptance of responsibility under USSG §3E1.1) and a criminal history category of III. Craven then lobbied for a downward departure, asserting that he had turned his life around about a year before his arrest (e.g., he had stopped drinking and using drugs, obtained gainful employment, reconciled with his girlfriend, and begun to act as a parent to his young son). In support, he tendered letters from family and friends corroborating this about-face.

The judge advised the parties that she intended to have an expert "document" Craven's rehabilitation. To this end, she entered an order directing Dr. Laurence Weisman, a psychologist, to conduct a substance abuse evaluation and submit a report. See 18 U.S.C. § 3552(b) (authorizing the sentencing court to order a study of the defendant if additional information is needed). Dr. Weisman interviewed Craven and prepared a report concluding:

Alfred Craven is a man at a crossroads in his life. From a chaotic and dysfunctional background that lacked warmth, modelling and supervision, he eased into a life of self-destructive drug addiction and criminal activity through which to support the addiction. Through some innate resources and strength, he appears to have made the necessary commitment to self-rehabilitation, sobriety and a productive lifestyle. Although he has had no formal treatment, his claims to have lived for over a year as a sober, contributing member of a community, as well as his involvement in a nuclear family as father and partner, bode well for a successful adjustment back to society upon his release from prison. As with any individual attempting to overcome a background of addiction and criminal lifestyle, the prognosis remains guardedly optimistic if the individual participates in a comprehensive, longterm recovery program. Mr. Craven appears to have demonstrated both the willingness and capability which would make him a good candidate to succeed.

Notwithstanding this optimistic prognosis, the government remained skeptical about Craven's purported rehabilitation. To help prove its point, the government produced disciplinary records from the correctional facility in which Craven had been detained pending disposition of the charges against him. These records showed that during a period of slightly less than two years, ending December 10, 1999, Craven had committed no fewer than eighteen disciplinary infractions. These included twice threatening correctional officers, twice flooding his cell, fighting on four occasions, possessing homemade alcohol, refusing to accept a housing assignment, refusing to obey other orders, and causing various disruptions. The records also showed that Craven had admitted to at least eleven of the infractions, including fighting, threatening an officer, and possessing homemade alcohol.

The district court reconvened the disposition hearing on March 10, 2000. At that time, it weighed Dr. Weisman's opinions against Craven's sorry disciplinary record and expressed concern about whether Craven's behavior while in custody "undermine[d] Dr. Weisman's conclusions." Troubled by that seeming paradox, the court gave Craven's lawyer additional time to address the disciplinary violations. The court noted that "in the absence of dealing with [those violations], I can't depart downward."

At the third and final sentencing hearing, held five days later, Craven's counsel did not deal with the paradox. The district court nonetheless made two downward departures. First, it reduced Craven's criminal history category from III to I on the ground that the higher category overstated his criminal past. See USSG §4A1.3, p.s. (authorizing such departures). This step shrank Craven's GSR to 188-235 months. The government has not inveighed against this aspect of Craven's sentence, and we do not discuss it further.

The judge then turned to the issue of extraordinary rehabilitation. She began her explanation by attempting to reconcile Craven's disciplinary infractions with a finding of rehabilitation:

I had about an hour conversation with Dr. Weisman. First, this case began with the representations made both to [the Probation Department] and to various members of Alfred Craven's family that he had voluntarily and successfully discontinued his use of all alcohol and illicit substances in August of '96. . . .

[S]uccessfully discontinuing all alcohol and illicit substances without any counseling, without any drug treatment, without any efforts to get at the underlying cause, is a very difficult thing and is particularly difficult for someone with the background of Mr. Craven. He had been involved in substance abuse and addictions since age 14, which is a very long time, and . . . his family was, as Dr Weisman describes, dysfunctional, chaotic. . . .

. . . .

I faxed to [Dr. Weisman] the disciplinary records. I was concerned the last time, because there were extraordinary disciplinary records for pretrial detention. . . .

I asked him if that suggests, then, that this rehabilitation wasn't in good faith. And he said no. He said judges are wrong in believing that . . . rehabilitation . . . is a continuous unilinear, uninterrupted pattern, and that the observations that he had made of Mr. Alfred Craven still are true . . . .

So, he is not at all concerned that these would be problems of accommodation in a prison, that are still consistent with someone who is struggling with a very difficult and very extensive drug addiction. And, in fact, he said to me, it comes from having dealt with drug addiction on your own rather than in a structured situation with counseling, where you're dealing with what the causes are.

Then, invoking USSG §5K2.0, the judge departed downward on the basis of extraordinary rehabilitation. This departure, equivalent to two offense levels, lowered the GSR to 151-188 months. The judge thereupon imposed a sentence at the bottom of the newly-calculated range. The government appeals the sentence pursuant to 18 U.S.C. § 3742(b)(3).

In our ensuing discussion, we first dispose of Craven's Apprendi-based claim. We then address the government's appeal.

II. THE DEFENDANT'S NON-APPEAL

Blithely overlooking his failure to cross-appeal, Craven asseverates that the Supreme Court's recent Apprendi decision calls into question the constitutionality of his sentence. His argument goes this way: 21 U.S.C. § 841(b)(1)(D) sets a maximum sentence of five years for controlled substance violations involving marijuana; longer sentences can be imposed only for specific drug quantities; and since the indictment returned against him did not state any specific drug quantity (although he signed a plea agreement that did), no sentence longer than five years is permissible under Apprendi. To rub salt in the resultant wound, Craven further argues that he must be sentenced based on the minimum amount of marijuana contemplated by the statute (250 grams), which, with a criminal history category of I, would yield a maximum sentence of no longer than six months. See USSG §2D1.1(c)(17); USSG Ch.5, Pt. A (sentencing table).

Craven's argument has some problematic aspects. In the first place, Apprendi requires that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment . . . ." 120 S. Ct. at 2355. At first blush, it is unclear whether drug quantity in this instance increases the "maximum penalty" permitted by the statute. Cf. United States v. Baltas, 236 F.3d 27, (1st Cir. 2001)(holding Apprendi inapplicable in heroin trafficking prosecution, even though drug quantity not determined by the jury, because district court sentenced defendant within the statutory maximum); United States v. Lafreniere, 236 F.3d 41, (1st Cir. 2001)(same). In the second place, an...