U.S. v. Martin

Decision Date21 March 2008
Docket NumberNo. 06-1983.,06-1983.
Citation520 F.3d 87
PartiesUNITED STATES of America, Appellant, v. Robert MARTIN, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Dina Michael Chaitowitz, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellant.

Roger A. Cox, with whom Cox & Cox was on brief, for appellee.

Before BOUDIN, Chief Judge, SELYA, Senior Circuit Judge, and SCHWARZER,* Senior District Judge.

SELYA, Senior Circuit Judge.

In Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Supreme Court shed considerable light on the scope and extent of a district court's discretion under the now-advisory federal sentencing guidelines. See id. at 598-602. This appeal represents our first full-fledged application of the teachings of Gall. At the same time, it also affords us an opportunity to discuss a relatively new phenomenon: the practice indulged in by some district courts, of filing post-judgment, post-appeal sentencing memoranda.

The circumstances are as follows. Defendant-appellee Robert Martin pleaded guilty to a charge of conspiracy to distribute more than 35 but less than 50 grams of cocaine base (crack cocaine) in violation of 21 U.S.C. § 846. In the presentence investigation report (PSI Report), the probation office set his base offense level under the federal sentencing guidelines at 30, and adjusted it downward to 27 to take account of his acceptance of responsibility. See USSG § 3E1.1. The defendant had eight prior convictions, yielding a criminal history score of 14; that placed him in criminal history category VI. His guideline sentencing range (GSR) was, therefore, 130-162 months.

In this case, that calculation was trumped by the defendant's career offender status. See USSG § 4B1.1; see also United States v. Jimenez, 512 F.3d 1, 8 (1st Cir.2007) (discussing potential trumping effect of career offender calculation). That designation, based on six of his prior convictions, yielded an enhanced GSR of 262-327 months.

At the disposition hearing, the defendant moved for a downward departure or, premised on 18 U.S.C. § 3553(a),1 a sentence beneath the GSR. Specifically, he asked the court to sentence him to the ten-year statutory minimum. See 21 U.S.C. § 841(b)(1)(B).

In support of so steep a variance, the defendant argued that his criminal history score overrepresented the seriousness of his previous convictions because several of them were remote in time, one was for a misdemeanor, and others involved mitigating circumstances. He also argued that a variance was warranted because of his difficult childhood; the supportive role of his wife, children, and stepchildren; his newfound religious faith; and his potential for rehabilitation. Finally, he pointed out that a number of his codefendants had received variant, below-the-range sentences.

The government responded that the defendant's family circumstances were commonplace; that his criminal record was a matter of great concern; and that his persistent recidivism reflected scant hope for rehabilitation. Given these realities, the government urged the lower court to impose a sentence of 262 months.

The court adopted the guidelines calculations limned in the PSI Report with one exception: having found that the defendant's criminal history score overstated the seriousness of his felonious past, the court rolled back his criminal history category from VI to V. This downward departure yielded a new career offender sentencing range of 235-293 months. The court then imposed a 144-month incarcerative sentence (a full 91 months below the nadir of the recalculated sentencing range). The court explained:

I can't justify going down to the minimum-mandatory sentence of ten years but I'm going to impose a sentence of 144 months which is a 12-year sentence. It's a tremendously tough sentence. It's a tremendously tough sentence for Mr. Martin to have to serve, and I think that the sentence is fully responsive to all the criteria set forth at 18 U.S. Section 3553. It brings home the seriousness of the offense and properly addresses it.

It acts as a deterrent to others who might be tempted to step on the path that Mr. Martin walked down. It responds to the specific circumstances of this case, and I believe that the 144-month sentence does recognize the positive things about Mr. Martin, and I have in mind particularly the close relationship he has with his family who are here today and how important that relationship is. It really makes a difference to me to have people here showing their support for him.

I also believe that Mr. Martin has demonstrated an unusually strong commitment to a law-abiding life and I do believe that when he is released from prison and after he [has] served his very difficult sentence, he will stay on the right path and be the sort of person that he now wants to be.

I also believe that a twelve-year sentence will bring his sentence in line with the sentences that I'm imposing on people who are in equivalent positions to Mr. Martin and I have that in mind as another reason for going outside the guidelines here.

So in summary: The close family relationships, the support of the family, Mr. Martin's own qualities which I think he expressed very well in his statement, and thirdly, to bring the sentence in line with other defendants I'm sentencing in this same very, very destructive drug conspiracy I will impose that sentence.

In its near-contemporaneous written statement of reasons in support of the sentence, see 18 U.S.C. § 3553(c)(2), the court referenced 18 U.S.C. § 3553(a) and stated that it was imposing a below-range sentence "due to the defendant's close family ties and support; the defendant's personal qualities, and to be in line with the sentences being imposed on codefendants in this matter."

The government filed a timely notice of appeal. While that appeal was pending (and almost one year after it pronounced sentence and entered judgment), the district court issued a supplemental memorandum (the Memorandum) that it described as "intended to distill . . . more concisely" the reasoning that underlay the sentence. The Memorandum vouchsafed that the sentence had been based principally on four elements. First, the defendant had "unusually strong" support from his family. Second, his "expressions of remorse were unusually sincere and reliable." Third, there was "an unusually low likelihood of recidivism." Fourth, the defendant "was responsible for a significant but not overwhelming amount of drugs," and the sentence actually imposed was comparable to those imposed on other (similarly situated) coconspirators.

That was the state of the record when this appeal was argued on September 5, 2007. We withheld decision in anticipation that the Supreme Court shortly would revisit the sentencing guidelines and speak authoritatively to the tri-cornered relationship among them, the district court's discretion (informed by the section 3553(a) factors), and the sentence actually imposed. That expectation was rewarded in Gall, a decision that warrants some elaboration.

After pleading guilty to a drug-trafficking charge, Gall faced a GSR of 30-37 months. 128 S.Ct. at 592-93. The district court, taking account of several section 3553(a) factors — including age, voluntary withdrawal from the charged conspiracy, familial support, and apparent pre-indictment rehabilitation — eschewed hard time and imposed a probationary sentence. Id. at 593. The court of appeals vacated the judgment, terming the non-incarcerative sentence "unreasonable" and stressing that the sentence comprised a "100% downward variance" from the GSR. Id. at 594 (quoting United States v. Gall, 446 F.3d 884, 889 (8th Cir.2006)).

The Supreme Court reinstated the sentence. See id. at 598-602. In so doing, the Justices emphasized the broad sweep of a sentencing court's discretion in the wake of the decision in United States v. Booker, 543 U.S. 220, 260-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the federal sentencing guidelines advisory. See Gall, 128 S.Ct. at 594-98.

The Gall Court was careful not to throw out the baby with the bath water. The Court acknowledged that the guidelines deserve some weight in the sentencing calculus, as they are "the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions." Id. at 594. It made clear, though, that courts of appeals must grant district courts wide latitude in making individualized sentencing determinations, thus guarding against the institutionalization of an impermissible presumption that outside-the-range sentences are unreasonable. Id. at 595.

To help navigate the strait between guidance and discretion, the Gall Court laid out a sequence of steps for sentencing courts to follow. A sentencing determination should begin with the calculation of the particular defendant's GSR. As a final step in arriving at a defendant's GSR, the district court must assess the appropriateness vel non of any departures.2 See United States v. Dixon, 449 F.3d 194, 204 (1st Cir.2006).

Properly calibrated, the GSR should serve as the sentencing court's "starting point" or "initial benchmark." Gall, 128 S.Ct. at 596. Nevertheless, the guidelines are only advisory, see Booker, 543 U.S. at 262, 125 S.Ct. 738, and the sentencing court may not mechanically assume that the GSR frames the boundaries of a reasonable sentence in every case. See Gall, 128 S.Ct. at 596-97.

The sentencing court's next steps should include hearing argument from the parties as to the proper sentence in the particular case, weighing the applicability of the sundry factors delineated in 18 U.S.C. § 3553(a), reaching an ultimate sentencing determination, and explicating that decision on the record. See Gall, 128 S.Ct. at 596-97. This progressive sequence was adumbrated in...

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