In re: Sealed Case

• Decision Date: 28 December 1999
• Docket Number: No. 98-3116,98-3116
• Parties: (D.C. Cir. 1999) In re: Sealed Case
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 488

199 F.3d 488 (D.C. Cir. 1999)

In re: Sealed Case No. 98-3116

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 1999

Decided December 28, 1999

Appeal from the United States District Court for the District of Columbia(No. 97cr00183-01)

Neil H. Jaffee, Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A. J. Kramer, Federal Public Defender.

Alyse Graham, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, and John R. Fisher, Mary-Patrice Brown and Diana Harris Epps, Assistant U.S. Attorneys.

Before: Silberman, Sentelle and Rogers, Circuit Judges.

Opinion for the court filed by Circuit Judge Sentelle.

Dissenting opinion filed by Circuit Judge Rogers.

Sentelle, Circuit Judge:

In 1997, appellant pleaded guilty in the United States District Court to several counts of cocaine possession and distribution in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). At sentencing, the trial court ran all sentences on all counts concurrently and sentenced appellant to 151 months. On appeal, appellant seeks a remand for resentencing on the basis that the District Judge was unaware of his authority under 4A1.3 of the United States Sentencing Guidelines Manual ("Guidelines") to order a downward departure from the career offender guideline range assigned to appellant. While the judge's discourse on the matter was less than clear, we hold that his comments should not be interpreted as reflecting the view that he had no legal authority to depart. Therefore, we affirm.

I. Background

On May 2, 1997, appellant pleaded guilty to one count of unlawful possession with intent to distribute cocaine and six counts of unlawful distribution of cocaine in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). Based on the drug quantity involved, the Presentence Report ("PSR") set the Guideline base offense level at eighteen. Since appellant had been convicted of two prior felony drug offenses, she qualified as a career offender under 4B1.1 and thus her offense level was raised to thirty-two. However, her offense level was reduced by three for acceptance of responsibility. Therefore, her final offense level totaled twenty-nine.

Regarding appellant's two prior offenses, the PSR showed that (1) the two offenses were committed within months of each other; (2) the offenses occurred almost ten years prior to the instant offenses; (3) the offenses involved very small quantities of drugs; (4) appellant received a probationary sentence on her second conviction; (5) appellant successfully completed her parole and probation; (6) appellant sold drugs to support her addiction rather than for financial gain; and (7) appellant led a conviction-free and productive life during the ten year period between her prior offenses and instant offenses. Had appellant not been deemed a career offender, her total offense level would have been fifteen (base eighteen less three for acceptance of responsibility) and her sentencing range would have been twenty-four to thirty months. However, since the court ruled that appellant's two prior convictions qualified her as a career offender, her sentencing range was 151-188 months.

Prior to sentencing, defense counsel filed objections to the PSR. Counsel objected to the career offender adjustment on the grounds that it did not "accurately reflect [appellant's] criminal history, but artificially inflate[d] her record and offense level." The probation officer rejected counsel's characterization in an addendum to the PSR. In making his objections, defense counsel did not raise any grounds for departure specifically under 4A1.3, the Guideline provision cited on appeal, which allows for a sentencing departure when "the court concludes that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes." U.S. Sentencing Guidelines Manual 4A1.3 (1998).

At the sentencing hearing, the trial judge stated that he "tentatively" agreed with the PSR. The judge also stated that he was "tentatively" inclined to impose a sentence at the bottom of the Guideline range and to run all sentences on all counts concurrently. Defense counsel complained about the harshness of the sentencing range in light of various mitigating factors, including appellant's age, drug addiction, period of drug abstinence and gainful employment, and educational background. In response, the judge stated:

I wish that there was some way I could give her a sentence less than the guidelines call for. I am going to sentence her at the bottom of the guidelines, but I am convinced that she needs a long period of abstinence and the treatment that she can get in the federal system.BEFORE: Edwards, Chief Judge; Silberman, Williams, Ginsburg , Sentelle, Henderson, Randolph, Rogers, Tatel and Garland, Circuit Judges

After defense counsel reiterated his objection to the length of the sentencing range, the judge responded, "I don't have any alternative." The court proceeded to sentence appellant to 151 months, running all counts concurrently in order to reach the bottom of the applicable range.

On appeal, appellant argues that her case must be remanded for resentencing since the sentencing judge was unaware that he had authority under 4A1.3 to order a downward departure from the career offender guideline range on the grounds that appellant's criminal history significantly over represented the seriousness of her prior convictions and the likelihood she would commit future crimes. For the reasons set forth more fully below, we reject appellant's contention that the judge misunderstood his sentencing authority.

II. Discussion

A defendant can appeal a sentence issued under the Guidelines only if the sentence "(1) was imposed in violation of law;(2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range...." 18 U.S.C. 3742(a) (1994). Here, appellant argues that the District Judge, as evidenced by certain statements in the record, was not aware that he could enter a departure under 4A1.3.While this court will review a District Judge's refusal to depart downward if the judge misconstrued his statutory authority to depart, see, e.g., United States v. Beckham, 968 F.2d 47, 49, 53 (D.C. Cir. 1992); United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990), we conclude that the District Judge's comments during the sentencing hearing did not amount to an assertion that he lacked the legal authority to depart, especially as his comments were made in response to defense counsel's general request for leniency and not in response to a specific request for departure.

Although appellant's counsel filed written objections to the criminal history guideline calculations contained in the PSR, he did not specifically request a 4A1.3 departure prior to sentencing. In his letter, counsel objected on the grounds that appellant's prior convictions did "not accurately reflect her criminal history, but artificially inflate[d] her record and offense level" because the two prior convictions should not have been considered separately under 4B1.2. Specifically, counsel argued that "[t]he predicate offenses for which [the probation officer] found defendant to be a 'career offender' were 'related' according to 4B1.2, Note 4 of the Sentencing Guidelines ... and therefore [the predicate offenses] should not be considered two separate and unrelated felonies pursuant to 4B1.2, Note 4." However, counsel's written objection does not aid appellant's current position since the objection pertained to the relatedness of the prior offenses and did not touch upon 4A1.3 departure authority. Moreover, counsel never specifically argued for departure at the sentencing hearing. Instead, counsel essentially asked the judge for leniency when assigning the sentence.

Since counsel never specifically argued for this departure from the appropriate guideline range before or during the sentencing hearing, the District Judge's comments regarding his sentencing authority must be evaluated in that context. The First Circuit considered a similar record in United States v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994). In that case, the circuit court observed that a district court often "simply asserts that it 'cannot' or 'is without authority' to depart."Id. That circuit observed that a district court making such an observation may be expressing the thought that it "cannot" depart because it lacks legal authority under the Guidelines, or simply "that it 'cannot' depart" because it has "weighed the factors urged and found that they do not distinguish the case from the mine run of cases." Id. In adopting the later view of the case before it and dismissing the improvident appeal, that circuit noted that the failure of the district court under review to discuss the factors as to which the appellant thought it lacked understanding were easily explained by the failure of the defense counsel at sentencing to explicitly urge those factors as a basis for departure. Just so here.

Thus, the critical question on appeal is whether the record establishes that the district court judge misunderstood his departure authority. See Ortez, 902 F.2d at 64. Granted, the judge stated that he "wish[ed]" he could have sentenced appellant below the guideline range but concluded that he did not "have any alternative." However, the language used by the judge is the kind of language that sentencing judges have always used, even in the days of judicial sentencing discretion unbridled by the Guidelines, to mean that the judge could not in good conscience or with good judgment give as lenient a sentence as requested by defense counsel. See United States v. Smith, 27 F.3d 649, 665 (D.C. Cir. 1994) ...