U.S. v. Pearson

• Decision Date: 13 August 1990
• Docket Number: No. 89-50117,89-50117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Craig Randolph PEARSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 186

911 F.2d 186

UNITED STATES of America, Plaintiff-Appellee, v. Craig Randolph PEARSON, Defendant-Appellant.

No. 89-50117.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 1989.

Decided April 6, 1990.

As Amended Aug. 13, 1990.

John Lanahan, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Roger W. Haines, Jr., and Judith Feigin, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING, BOOCHEVER and KOZINSKI, Circuit Judges.

OVERVIEW

BOOCHEVER, Circuit Judge:

Craig Randolph Pearson appeals the district court's upward departure from the Sentencing Guidelines following his conviction on eight counts of bank robbery and

attempted bank robbery. Pearson contends that the district court's departure was impermissible; even if departure was permissible, the amount was unreasonable; and the departure violated his due process rights. We hold that the departure was permissible, but because we find the amount of departure unreasonable, we remand to the district court for resentencing. Any departure should be guided by analogy to the guidelines.

FACTS

On November 22, 1988, Pearson pled guilty to eight counts of bank robbery and attempted bank robbery under 18 U.S.C. Secs. 2113(a) and (d). Pearson admitted that he wrote a demand note for each robbery, and he believed that in each note he claimed to have a gun. He denied, however, that he actually had used or possessed a gun. The government struck any allegations that Pearson was armed from the indictment before Pearson entered his guilty plea.

The district court adopted the offense level computation in the presentence report, calculating Pearson's sentence as follows. Under the version of the Sentencing Guidelines then in effect, the base offense level for robbery was 18. United States Sentencing Commission, Guidelines Manual Sec. 2B3.1(a) (hereinafter Guidelines ). ¹ The base offense level must then be increased according to the value of the loss. Id. at Sec. 2B3.1(b)(1). Because each robbery involved a financial institution, the court treated the loss for each as at least $5,000, which increased the base offense level to 19. Id. at Sec. 2B3.1(b)(1)(B).

The court then adjusted the offense level to encompass all the eight counts to which Pearson pled guilty. The guidelines determine the combined offense level by taking the offense level for the most serious count, and increasing it by five levels if the number of offense units is more than five. Guidelines Sec. 3D1.4. Each of Pearson's eight offenses was equally serious and thus had the same offense level of 19. The district court added five levels, for a total of 24. Pearson then received a two-level reduction for accepting responsibility under Guidelines Sec. 3E1.1(a), leaving his offense level at 22. The district court set his criminal history category at III, based on earlier drunk driving and hit and run convictions, and because Pearson was on probation when he committed the bank robberies.

Pearson's total offense level of 22 and his criminal history category of III resulted in a guideline range of 51 to 63 months. The presentence report recommended a sentence of 168 months (14 years), justifying the upward departure by noting the number of robberies Pearson admitted to and Pearson's claimed possession of a weapon. At sentencing, the district judge departed from the guideline range and sentenced Pearson to 120 months (ten years) imprisonment and five years supervised release. The judge stated:

I'm going lower from what the probation officer recommended, and not because I think the probation officer is wrong, but because I'm in a way bound by my own history, and I had another case in which the defendant hadn't as many bank robberies, but it was the second or third time through the system, to him I gave 15 years. And this is [the] first time that this defendant has been charged with these crimes. So if I felt 15 was fair for the other fellow who--then 14 wouldn't be fair to this defendant. That's the only reason I'm doing it, not because I feel that the probation officer is right or wrong, any more than I'm right or wrong, because it's a very difficult thing.

He stated further that the reason for departure was explained in the presentence report. The report based its recommendation of departure on the number of offenses in light of the nature of the face-to-face confrontation with the victims, the threat of use of a firearm, and the possible Pearson does not challenge the district judge's calculation of his offense level or his criminal history category. He argues that the departure upward from the 51-63 month range to 120 months was improperly based on the number of offenses to which he pled guilty, a factor Pearson claims was already taken into account when the judge added five levels for his "more than five" offenses under Guidelines Sec. 3D1.4. He also claims the departure violates due process.

                harm to the public. 2   Although Pearson had been a suspect in a number of other bank robberies, the judge indicated that he took into consideration only the eight counts to which Pearson pled guilty
                

DISCUSSION

While the Sentencing Commission anticipated that district judges would not very often depart from the sentencing ranges resulting from the correct application of the guidelines, Guidelines, ch. 1, part A, Sec. 4(b), departure is permissible 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 that should result in a sentence different from that described." 18 U.S.C. Sec. 3553(b). A judge who departs from the guidelines "must set forth the specific aspects ... of the charged offense that the district court believes have not been adequately represented in the recommended sentence." United States v. Wells, 878 F.2d 1232, 1233 (9th Cir.1989)(per curiam); see 18 U.S.C. Sec. 3553(c)(2).

Standard of review

We use a five-step process to review departures from the guideline range. United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir.1990). We must consider

(1) whether the district judge adequately identified the "aggravating or mitigating circumstance" ...;

(2) whether the identified circumstance actually existed;

(3) whether the circumstance was adequately taken into consideration by the Sentencing Commission (4) if not, whether the circumstance should result in departure; and,

(5) whether the extent or degree of departure was unreasonable.

Id. We apply de novo review in the first and third steps and clearly erroneous review in the second step; we review steps four and five for an abuse of discretion. Id., 897 F.2d at 983-86.

Departure Analysis

The district judge clearly stated his reasons for departure by incorporating the presentence report, which identified the number of robberies as the specific aggravating circumstance. The presentence report also referred to the commentary to Guidelines Sec. 3D1.4, which indicates that departure would be warranted in unusual cases where the additional offenses resulted in significantly more than five units. This satisfies the first of the Lira-Barraza steps for appellate review.

There is no factual dispute regarding the eight robberies Pearson committed. Step two thus is met.

Third, it is clear that the Commission did not consider the circumstance relied on for departure in setting the combined offense level. The commentary to Guidelines Sec. 3D1.4 specifically provides: "Inasmuch as the maximum increase provided in the [combined offense level] guideline is 5 levels, departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than 5 Units."

Fourth, we must determine whether the district court abused its discretion in determining that Pearson's eight robberies were "significantly more than 5 Units." The sheer number of offenses alone may determine whether the amount over five is significant. In this case, however, the district judge took more than mere numbers into account. The judge specifically indicated that he was considering only the eight offenses to which Pearson pled guilty, and adopted the following portion of the presentence report:

In considering the nature of the offenses in this matter, Bank Robberies, we believe eight units represents a significant excess when calculating the combined offense level. Bank Robbery is an offense which requires face-to-face confrontation between the offender and the victim and in these cases involved the threat of a firearm. Further, these robberies occurred in an area to which the public had access, thus increasing the degree of possible harm. We believe that for these reasons the definition of "significant," as used in section 3D1.4, takes on greater meaning for offenses of this serious nature.

(Emphasis added.)

The district judge thus did not focus only upon the numerical difference between five and eight. He reasoned that because Pearson's offenses involved confrontation and the threat of a gun in a place open to the public, the significance of the additional offenses was great enough to justify departure.

The guideline commentary justifies departure if there are significantly more than five offenses. The district judge did not abuse his discretion in determining that the three additional robberies constituted significant criminal conduct in excess of five. They constitute a sixty percent increase. Also, considering the particular crimes involved and the circumstances of their commission, it properly can be said that Pearson's offenses were unusual. The robberies involved the threat of the use of a gun, and occurred in bank areas to which the public had access, enhancing the risk of harm to others. See Guidelines ch. 1,...