U.S. v. Archuleta

• Decision Date: 17 November 1997
• Docket Number: No. 96-2269,96-2269
• Citation: 128 F.3d 1446
• Parties: 145 A.L.R. Fed. 757, 97 CJ C.A.R. 2906 UNITED STATES of America, Plaintiff--Appellant, v. Joseph ARCHULETA, Defendant--Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1446

128 F.3d 1446

145 A.L.R. Fed. 757, 97 CJ C.A.R. 2906

UNITED STATES of America, Plaintiff--Appellant, v. Joseph ARCHULETA, Defendant--Appellee.

No. 96-2269.

United States Court of Appeals Tenth Circuit.

Nov. 17, 1997.

Richard A. Friedman, Department of Justice, Washington, DC (John J. Kelly, U.S. Attorney, and James T. Martin, Asst. U.S. Atty., Albuquerque, NM, with him on the briefs), for Appellant.

J. Wayne Griego, Albuquerque, NM, for Appellee.

Before ANDERSON, EBEL and LUCERO, Circuit Judges.

ANDERSON, Circuit Judge.

Joseph Archuleta pleaded guilty to one count of providing false statements in the acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6), and to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court departed downward eight levels from the guideline range and imposed a sentence of five months' imprisonment, five months' home confinement, and three years' supervised release. The stated basis for the downward departure was that Archuleta was the sole support for two children, that he cared for his elderly, diabetic mother, and that no one else was able to care for them. On appeal, the government essentially challenges the legal sufficiency of this stated ground for departure. In the alternative, it argues that the case should be remanded for further evidence on the availability, or lack thereof, of care for the children and mother by one or more of Archuleta's eight brothers and sisters living in the area. Because we conclude that the family circumstances in question are within the heartland of the sentencing guidelines, we vacate the sentence and remand for resentencing.

BACKGROUND

Following Archuleta's guilty plea, the United States Probation Office prepared a presentence report ("PSR") which calculated a combined offense level of 19 and a criminal history category II under the United States Sentencing Commission Guidelines Manual. ¹ The PSR also indicated "factors that may warrant departure" from the Guidelines as follows:

Pursuant to section 5K2.0, Grounds for Departure, the sentencing Court may impose There appear to be mitigating circumstances concerning this case in that the defendant is a single parent of two minor children and also cares for his mother, age 74, who is diabetic and takes daily insulin treatments. If a downward departure was granted to an offense level within Zone C, the Court could impose a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in 5C1.1(e), provided that at least one-half of the minimum term is satisfied by imprisonment. This departure would allow the defendant to continue to care for his four dependents financially and still satisfy a sentence of imprisonment.

a sentence outside the range established by the applicable guidelines if the Court finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines, and which would result in a sentence different from what was described in the guidelines.

PSR pp 55, 56. Neither Archuleta nor the government objected to any part of the PSR prior to the sentencing hearing, and neither party filed a motion prior to the hearing. R. Vol. III at 2-3.

At sentencing, Archuleta's counsel argued that the court should depart downward into Zone C because Archuleta is the sole provider for his family, is sorry for what he did, is a good person, and has stayed out of trouble for the most part. R. Vol. III at 3-9. Counsel for the government argued that his circumstances were not so exceptional as to take the case out of the heartland and to warrant a downward departure. Id. at 11-13. The district court then adopted the PSR's calculation of offense level 19 and criminal history category II as well as its findings, noting that no evidentiary hearing was needed because there were no disputed facts. ² Id. at 14-15. The court further determined that a downward departure of eight levels was warranted because Archuleta was the sole support for two of his children, ³ because he provided care for his diabetic, elderly mother, and because they had no one else to turn to. Id. at 14, 17.

Counsel for the government objected to the downward departure, arguing that paragraph 32 of the PSR, which refers to Archuleta's siblings who lived nearby, indicates that there might be others who could provide support for Archuleta's dependents. ⁴ Id. at 21-22. The court then asked Defendant's counsel to confer with the Defendant and some of his siblings who were present in the courtroom to find out if any of them could care for their mother and Defendant's two children. Id. at 25, 27-28. After a short recess, Defendant's counsel told the court that Defendant's mother requires 24-hour care and that none of the siblings could provide care for either her or the children. ⁵ Id. at 28-31. The court then reaffirmed its downward departure and sentenced the Defendant to five months' imprisonment, five months' home confinement, and three years' supervised release. Id. at 15-16, 18, 31-32.

DISCUSSION

We review a district court's decision to depart from the Sentencing Guidelines for abuse of discretion. Koon v. United States, 518 U.S. 81, ---- - ----, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996); United States v. Lowe, 106 F.3d 1498, 1501 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2494, 138 L.Ed.2d 1001 (1997). In Koon, the Supreme Court found "[a] district court's decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court." Id. at ----, 116 S.Ct. at 2046. The Court reasoned that district courts have an "institutional advantage" over appellate courts in making departure decisions since they deal with such determinations on a daily basis. Id. at ---- - ----, 116 S.Ct. at 2046-47.

Nevertheless, the Court also concluded that "whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court's resolution of the point." Id. at ----, 116 S.Ct. at 2047. "The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions." Id. at ----, 116 S.Ct. at 2048. As we recently stated, in reviewing departure decisions we employ a unitary abuse of discretion standard, which includes the following inquiries:

(1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure, (3) whether the record sufficiently supports the factual basis underlying the departure, and (4) whether the degree of departure is reasonable.

United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997). We described the first inquiry as a legal question and the second as essentially a factual question. Id. In particular, we said that what constitutes a guideline's heartland is a legal question and our review on that question is not deferential. Id. at 1303 n. 4.

It is not always an easy matter to determine where de novo review ends and deference begins. ⁶ This is especially true where family circumstances are concerned. But, even though it is nearly impossible to draw bright lines in this area, the governing principles are clear.

Congress directed that the "Commission shall assure that the guidelines and policy statements ... reflect the general inappropriateness of considering the ... family ties and responsibilities ... of the defendant." 28 U.S.C. § 994(e); see USSG Ch.5, Pt.H, intro. comment. Accordingly, the guidelines provide that "[f]amily ties and responsibilities ... are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." USSG § 5H1.6, p.s.

The Supreme Court has made it clear that when a factor is discouraged because it is not "ordinarily relevant," or when the factor has already been taken into consideration by the guidelines, "the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Koon, 518 U.S. at ----, 116 S.Ct. at 2045; see also 18 U.S.C. § 3553(b), (e); USSG §§ 5K2.0, p.s., 5K1.1, p.s. The defendant bears the burden of proving he is entitled to a downward departure. See, e.g., United States v. Reed, 114 F.3d 1053, 1058 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 316, 139 L.Ed.2d 244(1997); The question before us, then, is whether the record in this case establishes family circumstances so exceptional that they constitute the rare case justifying a departure from the guidelines which already recognize the reality of difficult family circumstances for many defendants and which discourage making an additional allowance on that basis.

United States v. Verners, 103 F.3d 108, 110 (10th Cir.1996); United States v. Dyce, 91 F.3d 1462, 1471 (D.C.Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 533, 136 L.Ed.2d 418 (1996); United States v. Higgins, 967 F.2d 841, 846 (3d Cir.1992); United States v. Maldonado-Campos, 920 F.2d 714, 717 (10th Cir.1990).

The district court stated that "generally we don't have a situation in which the children have one parent and one parent only and that's the parent that's being removed." R. Vol. III at 28. This narrow view of the heartland is inconsistent with our decision in United States v. Webb, 49 F.3d 636, 638-39 (10th Cir.1995), where we reversed the district court's downward departure, which was based, inter alia, on his status as a sole caretaker of his one son who was on his school's honor roll before...