930 F.2d 1450 (10th Cir. 1991), 90-2017, United States v. Smith

Docket Nº:90-2017.
Citation:930 F.2d 1450
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Stan SMITH, Defendant-Appellant.
Case Date:April 16, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1450

930 F.2d 1450 (10th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,


Stan SMITH, Defendant-Appellant.

No. 90-2017.

United States Court of Appeals, Tenth Circuit

April 16, 1991

Page 1451

Robert J. Gorence, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., and Robert J. Baca, Asst. U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

William D. Fry, Asst. Federal Public Defender, Las Cruces, N.M., for defendant-appellant.

Before BRORBY, McWILLIAMS, Circuit Judges, and SPARR, [*] District Judge.

BRORBY, Circuit Judge.

Defendant-appellant Stan Smith appeals the sentence imposed by the United States District Court for the District of New Mexico upon our vacation of his previous sentence and remand for resentencing in United States v. Smith, 888 F.2d 720 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1786, 108 L.Ed.2d 788 (1990). Because the new sentence was imposed as a result of an incorrect application of the sentencing guidelines, we vacate the sentence and remand the case for resentencing.

A brief recap of the events to date is useful to an understanding of the dispute. On March 14, 1988, Mr. Smith robbed the First National Bank in Las Cruces, New Mexico while dressed in a coat and tie and disguised by dark glasses, a moustache, and a hat covering most of his forehead. After entering the bank, Mr. Smith held a pellet gun to a customer's head and ordered the tellers to put money in a bag that he was carrying. He then left the bank and drove off in the car which he had stolen in a grocery store parking lot one half-hour before the robbery. Smith, 888 F.2d at 721. Mr. Smith stole the car by falsely telling its occupant that her right front tire was very low, and offering to help her. When the car owner walked

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around the car to examine the tire, Mr. Smith entered the car, backed out and drove off.

After indictment and a jury trial, Mr. Smith was convicted of bank robbery in violation of 18 U.S.C. Sec. 2113. Mr. Smith was sentenced under the United States Sentencing Guidelines (U.S.S.G.) on November 4, 1988 to a term of eighty-four months imprisonment and three years of supervised release, and assessed a $50 special fee. 1 That sentence incorporated an upward departure from the guideline range based upon "the force and violence used by the defendant in committing the offense." Mr. Smith successfully appealed that sentence to this court in Smith, 888 F.2d 720. We there held the district court's explanation of its reasons for upward departure to be "insufficient," largely because "the offense of which the defendant was convicted subsumes acts of 'force and violence.' " Id. at 724. We therefore vacated the sentence and remanded the matter to the district court for resentencing including a statement of reasons for any departure from the guidelines' recommended sentence. 2 Id.

A revised presentence report was subsequently prepared for Mr. Smith. The presentence report correctly determined a base offense level of eighteen (18) for the charged offense. See U.S.S.G. Sec. 2B3.1 (Oct. 1987). 3 In the presentence report calculations, the probation officer added two offense levels for a value of property taken that was greater than $10,000 but less than $50,000. See Sec. 2B3.1(b)(1)(C) (Oct. 1987). Four offense levels were added for defendant's use of a firearm during the offense. See Sec. 2B3.1(b)(2)(B) (Oct. 1987). As no other adjustment was made, Mr. Smith's total offense level was calculated to be twenty-four.

In calculating the total offense level, the probation officer wrote: "15. Victim Related Adjustment: None." (Emphasis added.) Further on in the presentence report, however, the probation officer identified defendant's involvement "in the taking of a motor vehicle directly from a vulnerable victim, that being an elderly woman" as one factor among several that "would warrant consideration for an upward departure." (Emphasis added.)

The probation officer's confusion of upward departure and offense level adjustment led to a misapplication of the guidelines by the sentencing court. The difference between adjustments and departures is, of course, significant. As we discuss below, when the sentencing guidelines provide adjustments that adequately appraise offense conduct, those adjustments cannot be passed over in favor of departure. Departure from the guideline range is authorized only when the circumstances found and cited by the sentencing court have not adequately been considered--either as to kind or degree--in the sentencing guidelines.

The district court resentenced Mr. Smith on January 12, 1990, to the same sentence: eighty-four months' imprisonment followed by three years of supervised release, plus a special penalty assessment of $50. The court reached the same result as the presentence report in determining Mr. Smith's total offense level to be twenty-four. The court then cited the aggravating factors of victim vulnerability and more than minimal planning in increasing appellant's offense level to twenty-eight. The court echoed

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the presentence report by stating, "the defendant took a vehicle in the furtherance of the crime from a vulnerable victim, that being an elderly woman." Mr. Smith now challenges the use of victim vulnerability to enhance his punishment 4 and argues the district court exceeded the scope of this court's remand order. We address those arguments in turn.

The district court's statement of reasons for the sentence imposed includes the following explanation:

As to the indictment resulting in conviction for the offense of bank robbery, the Court finds that the defendant's base offense level is 18 pursuant to Section 2B3.1 of the sentencing guidelines.

The defendant used a dangerous weapon, to wit, a pellet gun, during the commission of the crime, resulting in a 4 offense level increase.

Further, the loss to the bank is determined to have been $28,465.00, resulting in an additional 2 offense level increase.

Defendant's total offense level is found to be 24, and his criminal history category is 1, resulting in a guideline imprisonment range for fifty-one to sixty-three months.

Pursuant to 18 U.S.C. Sec. 3553(b), the Court finds that aggravating circumstances of a kind and to a degree exist in this matter that have not been adequately considered by the Sentencing Commission in formulating the applicable guideline range as to this defendant, and that an upward departure is warranted.

The Court takes judicial notice that in preparation for the bank robbery, the defendant took a vehicle in furtherance of the crime from a vulnerable victim, that being an elderly woman. Further, the offense conduct represented more than minimal planning, as evidenced by both the defendant's discussion with a government witness of his intent to commit the crime and his altered appearance to conceal his identity at the time of the bank robbery. Therefore, pursuant to Sec. 5K2.0, a departure is determined to be warranted based upon relevant specific offense characteristics not utilized in the applicable guideline range.

Due to the specific offense characteristics of the vulnerable victim and more than minimal planning, the defendant's offense level shall be increased by four levels, for an adjusted offense level of 28, which combined with a criminal history category of 1 results in a guideline imprisonment range of seventy-eight to ninety-seven months.

(Emphasis added.) The sentencing judge spoke both in terms of an upward departure and an adjustment of appellant's offense level. The court's remarks plainly carry forward the confusion--between offense level adjustment and departure from the guideline range--generated by the probation officer's failure to identify relevant adjustments in the presentence report. Both parties argued this appeal in terms of departure. This court is unable to determine whether the district court actually departed from the sentencing range or applied an offense level adjustment. We consider both alternatives below.

The distinction between adjustment and departure is critical because sentencing courts have no authority to depart from the sentencing guidelines "unless 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); see also U.S.S.G. Sec. 5K2.0, p.s. This court also requires a higher degree of specificity in the explanation of departures. See United States v. Beaulieu, 900 F.2d 1531, 1535 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3252, 111 L.Ed.2d 762 (1990).

We review the validity of upward departures under the three-step process explained in United States v. White, 893 F.2d 276, 277-79...

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