U.S. v. Albritton, 94-3173
| Decision Date | 20 February 1996 |
| Docket Number | No. 94-3173,94-3173 |
| Parties | UNITED STATES of America, Appellee, v. Mark ALBRITTON, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 93cr00210-01).
Santha Sonenberg, Assistant Federal Public Defender, New York City, argued the cause, for the appellant. A.J. Kramer, Federal Public Defender, Washington, DC, was on the brief.
Cynthia M. Alksne, Assistant United States Attorney, Washington, DC, argued the cause, for the appellee. Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas J. Tourish, Jr., and Frederick W. Yette, Assistant United States Attorneys, were on the brief.
Before: HENDERSON, ROGERS and TATEL, Circuit Judges.
Opinion for the court filed PER CURIAM.
The jury convicted Mark Albritton of possessing with intent to distribute over fifty grams of cocaine base (crack) and a smaller amount of marijuana. The district court sentenced him to 121 months in prison. On appeal, Albritton primarily complains about the length of his sentence. He argues that the district court did not understand that he qualified for a reduced sentence based on his minimal role in the intended drug distribution. We affirm his convictions.
A little after 1:00 a.m. on April 23, 1993 a Greyhound bus traveling from Newark, New Jersey to Richmond, Virginia made a brief stop in Washington, D.C. Six District of Columbia police officers, members of a drug interdiction task force, boarded the bus. Detective Lawrence Coates questioned Mark Albritton, a passenger. According to Coates, while he questioned Albritton, Albritton repeatedly touched a black tote bag that was on the adjacent seat. Coates also testified that Albritton gave him permission to search the tote bag. The search revealed that the bag contained 325 grams of crack as well as some clothes and compact discs. After the police arrested Albritton, they found in his jacket pocket another 125 grams of crack and a small amount of marijuana.
Albritton was charged with possessing more than fifty grams of crack base with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) and possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He was held without bond from April 23, 1993 until his trial on September 7-9, 1994. At trial, his wife testified that the tote bag was not his. Through his counsel, he conceded that he possessed the drugs found in his jacket but claimed that they were for personal use. On September 9, 1994 the jury convicted Albritton on both counts. On December 1, 1994 the district court sentenced him to 121 months' imprisonment and five years of supervised release on the crack count and a concurrent sentence of six months' imprisonment and two years of supervised release on the marijuana count.
The appeal raises two issues: first, whether Albritton's attendance at trial in prison clothes rendered his trial unconstitutional; and second, whether the district court erred in not granting a downward sentencing departure in his sentence based on his minor role in the intended drug distribution. We disagree with the appellant on the first issue and conclude that he waived the second issue.
Albritton argues that his attendance at trial in a blue prison jump suit violated the United States Constitution, several decisions which indicate that a defendant's fourteenth amendment due process right may be violated when he appears at trial in prison clothes. Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976) (); United States v. Carter, 522 F.2d 666, 677 (D.C.Cir.1975) (). The cases establish that due process is met so long as the government does not compel a defendant to wear prison clothes at trial. Estelle, 425 U.S. at 507, 96 S.Ct. at 1694 (); Carter, 522 F.2d at 677 ("compelling a defendant") (emphasis removed).
Albritton, however, was not compelled to wear prison clothes at his trial. The record suggests that he would have been permitted to wear any clothes that were supplied to him. See Appellant's App. (App.) 136. His wife brought him slacks and two sweaters but, according to the deputy U.S. Marshal guarding him, the slacks were too small and he did not even try on the sweaters. Nothing in the record suggests that he asked for another set of clothes. Moreover, Albritton did not object to wearing prison clothes at trial. See Estelle, 425 U.S. at 512-13, 96 S.Ct. at 1697 (). We conclude that Albritton was not compelled to wear prison clothes and therefore affirm his convictions.
On appeal, Albritton argues that section 5K2.0 of the United States Sentencing Guidelines (guidelines) should have been used below to shorten his time in prison. Section 5K2.0 applies to the "atypical case, one in which a particular guideline linguistically applies but where conduct significantly differs from the norm." USSG, Ch. 1 Pt. A, 4(b). Section 5K2.0 in pertinent part grants the district court discretion to depart downward from an applicable guideline sentencing range if mitigating circumstances affecting the sentence were not "adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 1 According to Albritton, the district court erroneously concluded that it lacked authority to grant him a section 5K2.0 downward departure. Albritton, however, never asked the district court for a section 5K2.0 departure. Instead he requested but did not receive a four-point downward adjustment in his base offense level under section 3B1.2 to reflect his "minimal" role in the offense. By failing to request at sentencing a downward departure under section 5K2.0, he has waived the issue on appeal.
Albritton insists that he requested a section 5K2.0 downward departure. As evidence, he points out that his trial counsel requested a "departure," a term used only in Chapter 5 of the guidelines. 2 A review of the transcript of the sentencing proceeding, however, convinces us that Albritton's lawyer was relying not on a Chapter 5 departure but instead on a Chapter 3 adjustment. He stated: "I think that within the scheme of things his role in the offense was a minimal role and that your honor should consider giving him a four-point level reduction under 3B1.2." App. at 149 (emphasis added). His specific citation to section 3B1.2, his request for a four-point reduction and his use of the word "minimal" manifest that he misspoke in his one-word invocation of Chapter 5 terminology. 3 Section 5K2.0 includes no specific point reduction nor the word "minimal." Moreover, Albritton did not refer the district court to section 5K2.0.
The defendant and the government agree that we review Albritton's tardy departure request for "plain error" only. Plain errors are those that obviously and fundamentally violate a defendant's rights. United States v. Dawson, 990 F.2d 1314, 1316 (D.C.Cir.1993). As Albritton's trial counsel recognized, section 3B1.2 plainly addresses whether the defendant's relative culpability warrants a different sentence. Assuming, without deciding, that we conduct plain error review in these circumstances, the district court's failure to grant sua sponte a section 5K2.0 departure in this case was not plain error, if error at all, because the guidelines, in section 3B1.2, account for his role in the drug distribution.
For the foregoing reasons, Albritton's convictions are affirmed.
So ordered.
I write separately because I believe Albritton's departure request, made for the first time on appeal, is not reviewable. We have never held, nor should we, that a defendant who does not even make a departure request at sentencing is entitled to plain error review.
Congress has granted appellate courts a "narrow scope of review," Williams v. United States, 503 U.S. 193, 199, 112 S.Ct. 1112, 1118, 117 L.Ed.2d 341 (1992), which entitles the defendant to appeal his sentence if it was imposed in violation of law or as a result of the incorrect application of the guidelines. 18 U.S.C. § 3742(a). We do not, however, review a "court's discretionary decision that the particular circumstances of a given case do not warrant a departure." United States v. Pinnick, 47 F.3d 434, 439 (D.C.Cir.1995); see United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990); Jefri Wood and Diane Sheehey, Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues 224 (1995) ("Every circuit has held that, unless the decision involves an incorrect application of the Guidelines or is otherwise in violation of the law, a district court's discretionary refusal to depart downward is not appealable."). Nor do we review the extent of a downward departure. United States v. Hazel, 928 F.2d 420, 423 (D.C.Cir.1991). If the defendant advances a departure argument on appeal different from the departure argument made to the trial court, we review the district court's denial for "plain error" only. United States v. Dawson, 990 F.2d 1314, 1316 (D.C.Cir.1993) (...
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