U.S. v. Bermingham
| Decision Date | 11 August 1988 |
| Docket Number | No. 1252,D,1252 |
| Citation | 855 F.2d 925 |
| Parties | UNITED STATES of America, Appellee, v. Gerald John BERMINGHAM, Defendant-Appellant. ocket 88-1025. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen T. Rodriquez, Schenectady, N.Y., filed a brief, for defendant-appellant.
Frederick J. Scullin, Jr., U.S. Atty., David R. Homer, Asst. U.S. Atty., Albany, N.Y., filed a brief, for appellee.
Before NEWMAN and PRATT, Circuit Judges, and TELESCA, District Judge. *
This appeal presents an important issue in the administration of the new sentencing guidelines, an issue that will have major significance for all federal trial and appellate courts if the sentencing guidelines ultimately withstand constitutional challenge. See United States v. Johnson, 682 F.Supp. 1033 (W.D.Mo.1988), cert. granted sub nom. United States v. Mistretta, --- U.S. ----, 108 S.Ct. 2818, 100 L.Ed.2d 920 (1988). The issue is whether, and under what circumstances, a dispute as to which of two guideline ranges should apply to a defendant may be left unresolved where the sentence imposed falls within both the guideline range deemed applicable by the Government and a lower guideline range deemed applicable by the defendant. The issue arises on an appeal by Gerald Bermingham from a judgment of the District Court for the Northern District of New York (Thomas J. McAvoy, Judge). We conclude that the overlapping of the guideline ranges was designed to minimize the need to resolve disputes like the one presented on this appeal and that such disputes need not be resolved where the same sentence would have been imposed under either of the guideline ranges urged by the parties. However, such disputes must be resolved where the sentence was selected because it is at or near the low end of the guideline range urged by the Government and deemed applicable by the sentencing judge. Since we cannot be certain whether that occurred in this case, we remand for clarification.
In 1984, Congress initiated a fundamental change in the system for sentencing federal offenders. The Sentencing Reform Act of 1984, Pub.L. No. 98-473, Ch. II, 98 Stat. 1987, created the United States Sentencing Commission and gave it the responsibility to develop a set of sentencing guidelines to be used by district judges in sentencing federal offenders. See 28 U.S.C. Secs. 991-998 (Supp. IV 1986). In place of the prior system under which district judges had virtually unfettered discretion to select any sentence from probation to the statutory maximum for the particular offense, except for those few offenses carrying mandatory minimum sentences, the guidelines establish a structure in which judges' sentencing discretion is substantially curtailed, though not eliminated. See United States Sentencing Commission, Sentencing Guidelines and Policy Statements (1987) (hereafter "Sentencing Guidelines"). The guidelines, as originally promulgated on April 13, 1987, apply to offenses committed after November 1, 1987. See Sentencing Reform Act of 1984, supra, Sec. 235(a)(1), 98 Stat. 2031, amended by Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, Sec. 4, 99 Stat. 1728, and Sentencing Act of 1987, Pub.L. No. 100-182, Sec. 2(a), 101 Stat. 1266.
The guidelines establish a sentencing table of forty-three rows and six columns. Sentencing Guidelines at p. 5.2. The table is set out in figure 1. Each row corresponds to an "Offense Level," and each column to a "Criminal History Category." The offense level is determined by selecting a "Base Offense Level" specified for the type of conduct committed by the defendant and then adjusting this level, upwards and downwards, to reflect aggravating and mitigating circumstances, present in a defendant's case, for which precise offense level adjustments have been prescribed. The appropriate criminal history category is selected by assigning prescribed numbers of points to the defendant's prior convictions and selecting the criminal history category appropriate for the defendant's point total.
SENTENCING TABLE
Criminal History Category
Offense I 0 or 1 II 2 or 3 III 4, 5, IV 7, 8, 9 V 10, 11, VI 13 or
Level 6 12 more
-------------------------------------------------------------------------------
1 0 1 0 2 0 3 0 4 0 5 0 6
2 0 2 0 3 0 4 0 5 0 6 1 7
3 0 3 0 4 0 5 0 6 2 8 3 9
4 0 4 0 5 0 6 2 8 4 10 6 12
5 0 5 0 6 1 7 4 10 6 12 9 15
6 0 6 1 7 2 8 6 12 9 15 12 18
7 1 7 2 8 4 10 8 14 12 18 15 21
8 2 8 4 10 6 12 10 16 15 21 18 24
9 4 10 6 12 8 14 12 18 18 24 21 27
10 6 12 8 14 10 16 15 21 21 27 24 30
11 8 14 10 16 12 18 18 24 24 30 27 33
12 10 16 12 18 15 21 21 27 27 33 30 37
13 12 18 15 21 18 24 24 30 30 37 33 41
14 15 21 18 24 21 27 27 33 33 41 37 46
15 18 24 21 27 24 30 30 37 37 46 41 51
16 21 27 24 30 27 33 33 41 41 51 46 57
17 24 30 27 33 30 37 37 46 46 57 51 63
18 27 33 30 37 33 41 41 51 51 63 57 71
19 30 37 33 41 37 46 46 57 57 71 63 78
20 33 41 37 46 41 51 51 63 63 78 70 87
21 37 46 41 51 46 57 57 71 70 87 77 96
22 41 51 46 57 51 63 63 78 77 96 84105
23 46 57 51 63 57 71 70 87 84105 92115
24 51 63 57 71 63 78 77 96 92115 100125
25 57 71 63 78 70 87 84105 100125 110137
26 63 78 70 87 78 97 92115 110137 120150
27 70 87 78 97 87108 100125 120150 130162
28 78 97 87108 97121 110137 130162 140175
29 87108 97121 108135 121151 140175 151188
30 97121 108135 121151 135168 151188 168210
31 108135 121151 135168 151188 168210 188235
32 121151 135168 151188 168210 188235 210262
33 135168 151188 168210 188235 210262 235293
34 151188 168210 188235 210262 235293 262327
35 168210 188235 210262 235293 262327 292365
36 188235 210262 235293 262327 292365 324405
37 210262 235293 262327 292365 324405 360life
38 235293 262327 292365 324405 360life 360life
39 262327 292365 324405 360life 360life 360life
40 292365 324405 360life 360life 360life 360life
41 324405 360life 360life 360life 360life 360life
42 360life 360life 360life 360life 360life 360life
43 life life life life life life
figure 1
At the intersection of each of the forty-three offense levels and each of the six criminal history categories, the sentencing table prescribes a range of months. The sentencing judge is required to select a sentence within the applicable range, unless satisfied that the statutory grounds for making a "departure"--selecting a sentence above or below the guideline range--are met. See 18 U.S.C.A. Sec. 3553(b) (West Supp.1988) (). At the lower end of the sentencing table, the guideline ranges are six months. The ranges increase as the offense levels increase. At the higher end of the sentencing table, the guideline ranges are as much as eighty-one months. The top of any guideline range must not exceed the bottom by more than the greater of 25 percent or six months, unless the bottom is thirty years or more, in which event the top may be life imprisonment. 28 U.S.C.A. Sec. 994(b)(2) (West Supp.1988).
A distinctive feature of the sentencing table, of special significance to the pending appeal, is that the guideline ranges overlap, both vertically as the offense levels become greater and horizontally as the criminal history categories become greater. To illustrate, in the column for criminal history category I, the range for offense level 16 is 21 to 27 months, the range for offense level 17 is 24 to 30 months, and the range for offense level 18 is 27 to 33 months. Thus, for a defendant in criminal history category I, a twenty-seven-month sentence could be imposed without a departure no matter which of these three offense levels was applicable. Similarly, in the row for offense level 16, the range for criminal history category I is 21 to 27 months, the range for criminal history category II is 24 to 30 months, and the range for criminal history category III is 27 to 33 months. Thus, for a defendant with an offense level of 16, a twenty-seven-month sentence could be imposed without a departure no matter which of these three criminal history categories was applicable.
The extent of overlap is not uniform, though certain patterns are discernible. At offense levels from 13 to 37 in criminal history category I, the top of each range is the same as the bottom of the range for an offense level two levels higher. 1 That pattern of overlapping ranges for adjacent offense levels...
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