U.S. v. Allbee
| Decision Date | 13 April 1995 |
| Docket Number | No. 94-2068,94-2068 |
| Citation | 52 F.3d 328 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. UNITED STATES of America, Plaintiff-Appellee, v. Craig Allen ALLBEE, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before POSNER, Chief Judge, and CUMMINGS and ROVNER, Circuit Judges.
Appellant Craig Allen Allbee appeals the sentence he received after pleading guilty to one count of conspiracy to commit robbery on federal property in violation of 18 U.S.C. Sec. 371. Allbee maintains that he is entitled to a downward departure in his sentence because of a sentencing disparity between himself and his co-offender that is due to unique circumstances. We affirm.
On September 7, 1993, Allbee and Gary Chase committed a robbery and an attempted robbery on the United States Army Base at Fort Eustis, Virginia. Chase was an active duty serviceman at the time; Allbee was a civilian. 1 On both occasions, Allbee and Chase pulled up to their intended victim in a car and threatened the individual with a BB gun. The first victim did not have a wallet, so Allbee and Chase drove off with nothing. Allbee and Chase took the second victim's wallet, but left him otherwise unharmed.
Allbee was charged in the United States District Court for the Eastern District of Virginia in a three-count indictment: Count I charged conspiracy to commit robbery on federal property (18 U.S.C. Sec. 371); Count II charged robbery (18 U.S.C. Secs. 7(3), 2111, 2); Count III charged attempted robbery (18 U.S.C. Secs. 7(3), 2112, 2). Allbee was arrested pursuant to the charges on December 20, 1993 at his then current residence in Muncie, Indiana. The charges were transferred to the Southern District of Indiana, Indianapolis Division, pursuant to Federal Rule of Criminal Procedure 20.
Allbee pled guilty to Count I. His criminal history category was I, and the offense level was calculated to be 22. The appropriate Sentencing Guidelines range was calculated to be 41-51 months. Neither side objected to the classification, offense level, or calculated range. The United States Probation Department noted no factors warranting a departure from the guideline range. At sentencing, Allbee argued that there were grounds for downward departure under 18 U.S.C. Sec. 3553(b) and U.S.S.G. Sec. 5K2.0, based on the result of the military court martial of Chase. Chase pled guilty to charges relating to the same offenses and received a sentence of 18 months incarceration at hard labor, a reduction in rank to E-1, total forfeiture of pay, and a Dishonorable Discharge. 2 Allbee argued that two offenders being prosecuted in two distinct federal systems was unique and had resulted in an unconscionable sentencing disparity that could not have been foreseen by the Sentencing Commission in developing the guidelines. 3 He maintained, given the extraordinary circumstances, that he was entitled to a downward departure to bring his sentence in line with Chase's sentence.
The district court rejected the argument, based largely on United States v. Hall, 977 F.2d 861 (4th Cir.1992) and United States v. Guerrero, 894 F.2d 261 (7th Cir.1990). The court imposed the minimum sentence of 41 months imprisonment and imposed no fines.
The government argues that the appeal should be dismissed for lack of jurisdiction, as Allbee has not established a ground for appeal cognizable under 18 U.S.C. Sec. 3742. Allbee maintains that this court has jurisdiction to review his sentence because the district court judge erroneously believed she had no authority to depart downward based on her mistaken conclusion that such a departure was not authorized by law.
A defendant may appeal an otherwise final sentence if the sentence: 1) was imposed in violation of law; 2) was imposed as a result of an incorrect application of the guidelines; 3) is greater than the sentence specified in the applicable guideline range; or 4) was imposed for an offense for which there is no guideline and is plainly unreasonable. 18 U.S.C. Sec. 3742(a).
A determination to depart downwards from the guidelines "is wholly within the discretion of the district court [and] there is no appellate remedy available if a district court chooses not to depart." United States v. Gaines, 7 F.3d 101, 105 (7th Cir.1993). See also United States v. Winston, 34 F.3d 574, 581 (7th Cir.1994) (). A district judge who misinterprets her authority to depart, however, has either committed a mistake of law under Sec. 3742(a)(1) or misapplied the guidelines under Sec. 3742(a)(2). United States v. Thomas, 11 F.3d 732, 735 (7th Cir.1993), cert. denied, 115 S.Ct. 419 (1994). Thus, if the decision not to depart is based on an erroneous belief that the district judge lacked authority to depart, the sentence is reviewable on appeal. United States v. Canoy, 38 F.3d 893, 903 (7th Cir.1994); Gaines, 7 F.3d at 105.
We have considered certain factors in ascertaining whether a district court believed it had authority to depart, including the district judge's comments, whether defendant requested a departure, whether defendant cited relevant authority, and whether defendant informed the court of its discretion to depart. Gaines, 7 F.3d at 106. If there is no indication in the record that the district court believed it lacked authority to grant a departure, this court presumes the district court declined to depart as a matter of discretion. United States v. Rosalez-Cortez, 19 F.3d 1210, 1221 (7th Cir.1994).
A review of the sentencing transcript indicates Judge Barker's decision not to depart was based on her conclusion such a departure was not authorized under the law. The district judge's comments make it clear she believed such a departure was not legally authorized.
That's an argument to make to your Congressman, not an argument to make to the court. Because it's not a ground of departure under the very narrow set of circumstances under which this court can grant departures. (TR. at 41).
I want you to understand, but I want everyone who has come with you to court to understand in particular, that under the current laws this court has very little discretion in imposing the sentence. And we have talked about the things that matter. The issue that your lawyer advanced is a very credible issue, but it doesn't carry the day as a matter of law. That's not what the law is on that point. (TR. at 59) (emphasis added).
So I find no legally acceptable reason to depart from the guideline ranges, and I'll approach the sentencing in view of that. (TR. at 61).
So the guideline range for the custodial portion is forty-one to fifty-one months, and I will impose the sentence at the lowest end of the guidelines, forty-one months. That's the best I can do. That's what the law requires. (TR. at 62) (emphasis added).
Further, the district court relied primarily upon United States v. Hall, 977 F.2d 861 (4th Cir.1992), a case which held a sentencing disparity is not a legally cognizable ground for departure. (TR. at 42).
Given the district court judge's conclusion that she had no legal authority to depart downward, we have jurisdiction to review the appeal. 4
The government argues that the district court judge properly concluded she had no authority to depart, given the prevailing law in this circuit that disparate sentences between co-defendants is not grounds for a downward departure. Allbee maintains he is entitled to a departure, given the extraordinary circumstances of two cohorts being sentenced in different federal systems and the guidelines' purpose of reducing sentencing disparities. There have apparently been no cases dealing with disparate sentences between cohorts based on the fact one offender was sentenced in federal district court and the other was sentenced in a military court. This court concludes, however, a disparity in sentences between cohorts in such circumstances is not a legally sufficient ground for a downward departure.
Courts are required "to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. Sec. 3553(a)(6). Further, a district court may depart downward, pursuant to 18 U.S.C. Sec. 3553(b) 5 and U.S.S.G. Sec. 5K2.0, 6 if the court finds a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the guidelines that should result in a lesser sentence. United States v. Seacott, 15 F.3d 1380, 1386 (7th Cir.1994). See also United States v. Porter, 23 F.3d 1274, 1279-80 (7th Cir.1994).
However, a sentencing disparity, without more, is not an adequate basis for a downward departure. In this circuit, "[i]f the sentence imposed upon a particular defendant falls within the applicable Guideline, then it will not be overturned on the ground that another defendant was sentenced differently." United States v. Edwards, 945 F.2d 1387, 1398 (7th Cir.1991), cert. denied, 112 S.Ct. 1590 (1992). See also United States v. Betts, 16 F.3d 748, 765 (7th Cir.1994); United States v. Stowe, 989 F.2d 261, 264 (7th Cir.1993) (); United States v. Cea, 963 F.2d 1027, 1033-34 (7th Cir.1992), cert. denied, 113 S.Ct. 281 (1992); United States v. Coonce, 961 F.2d 1268, 1282 (7th Cir.1992). "Nothing in 18 U.S.C. Sec. 3742(a) ... allows review of a sentence imposed in conformity with the Guidelines on grounds that a co-defendant was treated differently." United States v. Heilprin, 910 F.2d 471, 475 (7th Cir.1990) (quoting United States v. Smith, 897 F.2d 909, 911 (7th Cir.1990)). See also United States v. Guerrero, 894 F.2d 261, 267 (7th Cir.1990) (...
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