U.S. v. Anders

• Decision Date: 12 February 1992
• Docket Number: No. 90-10558,90-10558
• Citation: 956 F.2d 907
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Terry Lee ANDERS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 907

956 F.2d 907

UNITED STATES of America, Plaintiff-Appellant, v. Terry Lee ANDERS, Defendant-Appellee.

No. 90-10558.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 10, 1991.

Decided Feb. 12, 1992.

Rory K. Little, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant.

Larry B. Kupers, Asst. Federal Public Defender, San Francisco, Cal., for defendant-appellee.

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

Before ALDISERT, ^* GOODWIN and NOONAN, Circuit Judges.

ALDISERT, Senior Circuit Judge:

This appeal by the government from a sentence of probation given Terry Lee Anders, who had confessed to seven bank robberies, requires us to decide whether the district court erred in departing downward from the 57- to 71-month incarceration range under the Sentencing Guidelines by sentencing Anders to straight probation based on his post-arrest drug rehabilitation efforts and his difficult personal and family background. We vacate the sentence and remand for resentencing.

Jurisdiction was proper in the district court based on 18 U.S.C. § 3231. We have appellate jurisdiction under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291 to review a district court's downward departure from the Sentencing Guidelines. See United States v. Sanchez, 933 F.2d 742 (9th Cir.1991). The appeal was timely filed under Rule 4(b), F.R.A.P.

The government argues that the district court erred in determining that "extraordinary circumstances" justified the downward departure; that the court impermissibly considered post-arrest drug rehabilitation in contravention of our subsequent decision in United States v. Martin, 938 F.2d 162 (9th Cir.1991); and that the court erred in concluding that several factors, including age, mental and emotional conditions, extreme drug addiction, employment record, family ties and responsibilities, taken together, represented a permissible basis for downward departure. The government also contends that even if any downward departure was proper, the extent of the departure in this case was unreasonable.

We employ a three-step analysis in reviewing departures from the Sentencing Guidelines: "1. We determine whether the district court had legal authority to depart; 2. We review for clear error factual findings supporting the existence of the identified circumstance; 3. We determine whether the extent of departure from the applicable guideline range was 'unreasonable'...." United States v. Boshell, 952 F.2d 1101, 1107 (9th Cir.1991) (citing United States v. Lira-Barraza, 941 F.2d 745, 746-51 (9th Cir.1991) (en banc)).

I.

On December 19, 1989, the appellee, Terry Lee Anders, was arrested and charged with robbing the Homestead Savings and Loan in San Francisco earlier that day. He subsequently admitted to robbing at least seven different banks during the previous year. He stated that he never used violence or the threat of violence during these robberies and that they were motivated by his need for money to obtain illegal drugs.

On December 29, 1989, a federal grand jury indicted Anders on seven counts of bank robbery. In lieu of pretrial incarceration, the court ordered Anders to reside at Walden House, a substance abuse treatment center in San Francisco, and to participate in its drug rehabilitation program.

After entering into a plea agreement, Anders pled guilty on May 7, 1990, to five of the seven counts in the indictment. The court accepted the pleas, and the government dismissed the remaining two counts. The district court informed Anders that he was "sort of at the mercy [of] the Sentencing Guidelines." E.R. at 25.

A.

On June 15, 1990, the probation officer released her presentence report, which stated that Anders had simulated having a gun during the five bank robberies of which he was convicted, but that each robbery was counted as unarmed. Although Anders had stolen over $12,000 total in the five robberies, he had taken less than $10,000 during each robbery. The report concluded that the adjusted offense level for the five unarmed bank robberies was 26, and that after the two-level deduction for acceptance of responsibility, the total offense level was 24.

The report further revealed that Anders had a substantial criminal history. Between the ages of 18 and 25, Anders was convicted of four felonies--grand larceny, forgery, possession of narcotics and armed robbery--and spent a substantial amount of time in state prisons. Because these convictions occurred more than 15 years before the instant offenses, they were not used in calculating Anders' criminal history points under the Sentencing Guidelines. However, the report did count two later state convictions for driving under the influence and unemployment benefits fraud, resulting in a criminal history category of II.

Based on an offense level of 24 and a criminal history category of II, the probation report established a 57- to 71-month range of incarceration under the guidelines. The report noted that the "Guidelines do not authorize a sentence of probation" in this case. The parties do not dispute this calculation of the sentencing range.

The probation report also outlined Anders' personal and family history. Anders, who was 46 at the time of sentencing, had a "traumatic" childhood, consisting of foster homes, a physically abusive foster father and juvenile reformatories. He did not meet his mother until he was 27 years old, and the identity of his father is unknown.

The report further noted that Anders has had a narcotics abuse problem for many years. Until his arrest, he was a daily user of cocaine, frequently spending "thousands of dollars a week" for drugs. Notwithstanding his "successful" completion of three drug treatment programs since 1983, he reverted to drug abuse after each program. Anders explained this by stating that he had been "in denial."

B.

Anders worked as a unionized ironworker from 1974 to 1986 or 1987, when he stopped working due to drug abuse. Anders claimed that he subsequently supported himself through disability and unemployment insurance benefits. He also admitted to robbing banks to support his drug habit in 1988 and 1989.

In 1985, Anders' ten-year marriage to Laura Blake broke up because of his substance abuse. Although Anders is required to pay his ex-wife $450 per month for child support, he has been unable to pay this for some time. The report indicated, however, that Anders maintains a good relationship with Ms. Blake and his daughter, and that they are among his support group.

Regarding Anders' substance abuse, the report stated that Anders is making progress at the Walden House drug rehabilitation program, and that Anders' therapist has described him as "highly motivated" and "doing very well."

In light of the 57- to 71-month sentencing range, the government recommended a 71-month sentence. Anders countered with a request for straight probation, a downward departure of at least 57 months, based on his difficult personal and family background and his drug rehabilitation.

C.

On July 23, 1990, the district court held a sentencing hearing at which it acknowledged that Anders' request for straight probation would require the court "to almost deep six the Guideline[s]." E.R. at 104. Nevertheless, the court asked the parties to research the court's power to impose non-imprisonment sentencing options under the guidelines.

On September 10, 1990, after receiving the parties' supplemental sentencing memoranda, the court suspended the imposition of sentence on each count and placed Anders on probation for a total of five years. The terms of probation require Anders to remain at Walden House until his probation officer determines that release is appropriate, and to stay drug free at all times. The court also ordered Anders to make restitution to the banks.

The district court justified this substantial downward departure by stating that the purpose of the guidelines would not be served by a period of incarceration. The court cited two primary reasons for the departure: Anders' "extraordinary unique personal and family history," and his commitment "to a very substantial ... serious, demanding drug treatment program." Id. at 175. The court stated it was loath to remove Anders from Walden House and his support system and to place him in prison. The court believed that he had been humiliated enough. Id.

The district court followed up its oral sentence with a written judgment on October 3, 1990. The judgment reiterated that there were "extraordinary circumstances" present in Anders' case, and that there was "a unique combination of ... factors present" as well. Judg. at 3; E.R. at 186. The court listed as "extraordinary factors" his (1) age, (2) mental and emotional conditions, (3) drug dependence, (4) employment record and (5) family ties and responsibilities. Id. at 3-8; E.R. at 186-91. The court also cited Anders' "successful efforts at drug rehabilitation" following his arrest. Id. at 8-9; E.R. at 191-92.

The government subsequently filed this appeal from Anders' sentence.

II.

A court must sentence within the applicable guideline range unless valid grounds exist for departure. 18 U.S.C. § 3553(b). Section 3553(b) provides:

The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) 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. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.

Thus, if a circumstance is not one adequately considered by the guidelines, "the court is legally authorized to depart so long as the...