U.S. v. Dailey

• Decision Date: 05 July 1994
• Docket Number: No. 92-6910,92-6910
• Citation: 24 F.3d 1323
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Russell Charles DAILEY, a/k/a Don Agrillo, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1323

24 F.3d 1323

UNITED STATES of America, Plaintiff-Appellant, v. Russell Charles DAILEY, a/k/a Don Agrillo, Defendant-Appellee.

No. 92-6910.

United States Court of Appeals, Eleventh Circuit.

July 5, 1994.

Jack W. Selden, U.S. Atty., James E. Phillips, Asst. U.S. Atty., Birmingham, AL, for appellant.

Connie W. Parson, Birmingham, AL, for appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before KRAVITCH and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge.

COX, Circuit Judge:

Russell Charles Dailey was convicted on one count of violating 18 U.S.C. Sec. 1952(a)(3) (1988 & Supp. II 1990), interstate travel with intent to carry on the unlawful activity of extortion, in the Northern District of Alabama in September 1992. In a recorded telephone conversation earlier that year, Dailey told the victim that he would "make sure you never walk again" if the victim did not repay money he owed Dailey.

The district court calculated an adjusted offense level of 25 for Dailey's actions under United States Sentencing Commission, Guidelines Manual, Secs. 2E1.2, 2B3.2 (Nov.1991) ("Guidelines" or "U.S.S.G."), ¹ after sustaining the government's objection to a two point reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1. The court found the criminal history category to be I, resulting in a guideline range of 57-71 months with supervised release of two to three years. See U.S.S.G. Ch. 5, Pt. A; U.S.S.G. Sec. 5D1.2(b)(2).

The court then indicated that it would sua sponte consider downward departure from the Guidelines range on the grounds that (1) Dailey suffered from diminished capacity under U.S.S.G. Sec. 5K2.13, p.s.; (2) the conduct of Dailey's victim contributed to provoking the offense, permitting departure under U.S.S.G. Sec. 5K2.10, p.s.; and (3) the facts of Dailey's case fell outside the heartland of organized crime offenses "anticipated" by 18 U.S.C. Sec. 1952 and U.S.S.G. Sec. 2E1.2, permitting departure under U.S.S.G. Ch. 1, Pt. A(4)(b), p.s. The district court departed downward to an offense level of 15, with Dailey's criminal history category remaining I. This produced a Guidelines range of 18-24 months imprisonment with a supervised release period of two to three years. See U.S.S.G. Ch. 5, Pt. A; U.S.S.G. Sec. 5D1.2(b)(2). The court sentenced Dailey to 18 months in prison and two years of supervised release.

The government appeals the district court's downward departure. The government argues that (1) the departure for diminished capacity was not permissible because Dailey was convicted of a "crime of violence;" (2) the victim's conduct did not provoke Dailey's actions; and (3) the absence of any connection between Dailey and organized crime was not an appropriate ground for departure. We address each of these arguments in turn, concluding that we must vacate Dailey's sentence and remand for resentencing.

Standard of Review

We review the district court's departure from the prescribed Guideline sentencing range in three steps. United States v. Weaver, 920 F.2d 1570, 1573 (11th Cir.1991). First, we review de novo the district court's legal conclusions with regard to the availability of departure based upon a particular factor. Id. Second, we review the district court's underlying factual findings for clear error. Id. Finally, we review the departure for reasonableness. Id.

Discussion

A. Departure for Diminished Capacity

One of the reasons given by the district court for its downward departure was Dailey's "diminished capacity--his one hundred percent mental type disability," referring to Dailey's status as a Vietnam War veteran suffering from posttraumatic stress disorder. Section 5H1.3 of the Guidelines states that "[m]ental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range, except as provided in Chapter 5, Part K, Subpart 2 (Other Grounds for Departure)." U.S.S.G. Sec. 5H1.3, p.s. The relevant section in Chapter 5, entitled Diminished Capacity, then provides:

If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.

U.S.S.G. Sec. 5K2.13, p.s.

We have interpreted these two sections to mean that mental and emotional conditions may be relevant to sentencing in extraordinary instances, "but then only if the defendant committed a nonviolent crime." United States v. Russell, 917 F.2d 512, 517 (11th Cir.1990), cert. denied, 499 U.S. 953, 111 S.Ct. 1427, 113 L.Ed.2d 479 (1991). The government argues that Dailey's violation was not a "non-violent offense" or "nonviolent crime" because it fits the definition of a "crime of violence" in U.S.S.G. Sec. 4B1.2.

Section 4B1.2 defines the term "crime of violence" for the purposes of U.S.S.G. Sec. 4B1.1, which provides enhanced sentences for career offenders. According to section 4B1.2(1),

The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. Sec. 4B1.2(1). Dailey's violation of 18 U.S.C. Sec. 1952(a)(3), interstate travel with intent to carry on the unlawful activity of extortion, certainly qualifies as a "crime of violence" under section 4B1.2(1) because the threat of physical force is an element of the underlying unlawful activity, extortion.

The government argues that downward departure under U.S.S.G. Sec. 5K2.13 was impermissible because Dailey's conviction of a "crime of violence" means that he did not commit a "non-violent offense." Thus, we must decide whether Dailey's "crime of violence," as that term is defined in section 4B1.2, can be considered a "non-violent offense" for the purpose of downward departure under section 5K2.13. While the answer might appear obvious at first blush, this question has produced a split among other circuits and a conflict within our own.

Most of the circuits that have addressed this question have concluded with little discussion that the terms "crime of violence" and "non-violent offense" are mutually exclusive. Thus, they have held that downward departure under U.S.S.G. Sec. 5K2.13 is not available when the defendant is convicted of a "crime of violence." See United States v. Rosen, 896 F.2d 789, 791 (3d Cir.1990); United States v. Maddalena, 893 F.2d 815, 819 (6th Cir.1989); United States v. Borrayo, 898 F.2d 91, 94 (9th Cir.1989).

A closely divided Seventh Circuit agreed with these decisions in United States v. Poff, 926 F.2d 588 (7th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 96, 116 L.Ed.2d 67 (1991). The Poff court noted that both sections 4B1.2 and 5K2.13 contain the same root word--"violence." Poff, 926 F.2d at 591. ² The court reasoned that because the Guidelines are to be read as a whole, see U.S.S.G. Sec. 1B1.1(i), "when the same word appears in different, though related sections, that word likely bears the same meaning in both instances." Id. Thus, the Commission's use of a positive construction in section 4B1.2 ("crime of violence") and a negative construction in section 5K2.13 ("non-violent") led the majority to conclude that "[t]he natural reading of these terms suggests that they are contrapositives." Id. at 592. The court noted the lack of any cross reference between sections 4B1.2 and 5K2.13 and the lack of any commentary suggesting a different meaning as further support for its position. Id.

The Poff dissenters reasoned that because the Guidelines were assembled as a unit and amended frequently so that they would operate as an "integrated whole," the choice of different phrases in sections 4B1.2 and 5K2.13 reflected an intent to give those phrases different meanings as well. Id. at 594. They asserted that the omission of a cross-reference between the two sections further supported this conclusion. Id. For the dissenters, the term "crime of violence" was a term of art because it referred to violence or the threat of violence as an element of the offense charged, not to the actual occurrence of violence. "Non-violent offense" on the other hand, meant simply an offense "in which mayhem did not occur." Id. Thus, "[t]he prospect of violence ... sets the presumptive range; when things turn out better than they might, departure is permissible." Id. After an examination of the importance of mental capacity under both the deterrence and desert rationales for sentencing, the dissenters concluded that so long as mayhem did not occur a downward departure was permitted under section 5K2.13 despite the fact that the offense met the formal definition of a "crime of violence".

In United States v. Chatman, 986 F.2d 1446 (D.C.Cir.1993), the court agreed with the Poff dissenters, holding that the definition of "crime of violence" in U.S.S.G. Sec. 4B1.2 should not control the application of U.S.S.G. Sec. 5K2.13. With reasoning similar to that of the Poff dissenters, the Chatman court concluded that "the sentencing court must consider all the facts and circumstances of a case in deciding whether a crime is a 'non-violent offense' under section 5K2.13 of the Guidelines." Id. at 1453 (footnote omitted). The court noted, but did not rely upon, the fact that even if section 4B1.2 were to control section 5K2.13, the district court would still be permitted under United States v. Baskin, 886 F.2d 383 (D.C.Cir.1989...