U.S. v. Brady
| Decision Date | 18 March 1991 |
| Docket Number | No. 89-30074,89-30074 |
| Parties | , 4 Fed.Sent.R. 197 UNITED STATES of America, Plaintiff-Appellee, v. Leon BRADY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Vernon E. Woodward, Billings, Mont., for defendant-appellant.
Klaus P. Richter, Asst. U.S. Atty., Billings, Mont., for plaintiff-appellee.
Appeal from the United States District Court for the District of Montana.
Before WALLACE, Chief Judge, PREGERSON and D.W. NELSON, Circuit Judges.
Leon Brady was convicted of voluntary manslaughter and assault with a dangerous weapon. He appeals the legality of his sentence, contending that its terms impermissibly depart from the Federal Sentencing Guidelines. We conclude that the sentence imposed is incompatible with the Guidelines. We therefore vacate the sentence and remand this matter for further proceedings consistent with this opinion.
Charles Brady, an enrolled member of the Northern Cheyenne Indian Tribe, was indicted in July 1988 for first degree murder and assault with intent to commit murder of two other tribal members on the Northern Cheyenne Indian Reservation. Following trial, the jury convicted Brady not on these charged counts, but on the lesser included offenses of voluntary manslaughter and assault with a dangerous weapon.
In February 1989, the U.S. Probation Officer submitted to the court the required presentence report. The report calculated the total offense level at 24 (). The report also set Brady's criminal history category at "I." 1 Under these calculations, the applicable sentencing guideline range indicated a sentence of 51 to 63 months.
The presentence report, however, noted that an upward departure from this range may be appropriate on the basis of Brady's tribal court convictions on two misdemeanor assault charges. The report suggested that without consideration of these tribal offenses, Brady's criminal history category "does not adequately represent the seriousness of his criminal past." The report stated that if the history category were raised to "II" on this basis, the guideline range would be 57 to 71 months, and if the category were raised to "III," the range would be 63 to 78 months.
At the sentencing hearing, the district court sentenced Brady to a total of 180 months (15 years) of imprisonment for the two offenses. In increasing the sentence well beyond the range recommended in the presentence report, the court challenged the probation officer's calculations and found cause for departing upward from the Guidelines. First, the judge did not believe that Brady had accepted responsibility for the committed offenses, and therefore denied the two-level reduction in the total offense level. Second, the judge felt that criminal history category "I" did not adequately reflect the seriousness of Brady's criminal history because the tribal court convictions were not taken into account. Third, as justification for an upward departure from the Guidelines, the judge referred to the fact that a firearm had been discharged when the offenses were committed. Fourth, the judge departed from the Guidelines based on the defendant's "state of mind" during commission of the offenses. Finally, the judge indicated that the sentences should run consecutively, not concurrently, thus aggregating the maximum five year sentence for assault with a dangerous weapon with the maximum ten year sentence for voluntary manslaughter.
Brady contends that under the Guidelines none of these bases for sentence enhancement is permissible. He argues that he accepted responsibility for the crimes for which he was convicted; that serious constitutional problems are involved in relying on minor, uncounseled tribal convictions to depart upward from the Guidelines; that the sentence had been unjustifiably enhanced on the basis of the firearm discharge; that the district court erred in departing upward by finding that Brady acted with the specific intent to kill both victims, despite the fact that the jury acquitted Brady of first degree murder and assault with intent to commit murder; and that the decision to run the sentences consecutively, rather than concurrently, violated the procedure mandated by the Guidelines.
Before we consider whether the sentencing court properly deviated from the sentencing range recommended in the presentence report, we first address the issue of notice of the factors the court may consider in deciding whether to depart from the Sentencing Guidelines. The Guidelines require that "[w]hen any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor." United States Sentencing Commission, Guidelines Manual [hereinafter U.S.S.G.] Sec. 6A1.3(a), p.s. The Guidelines further state that
[t]he court shall resolve disputed sentencing factors in accordance with Rule 32(a)(1), Fed.R.Crim.P...., notify the parties of its tentative findings and provide a reasonable opportunity for the submission of oral or written objections before imposition of sentence.
U.S.S.G. Sec. 6A1.3(b), p.s. 2
The presentence report stated only one ground for possible upward departure--the use of Brady's tribal court convictions to increase his criminal history category. Brady contends that he was not notified before the sentencing hearing of several other factors relied on by the sentencing court to depart from the Guidelines. Brady argues that, because he was not given notice of these factors, they may not be used to enhance the sentence beyond the range stated in the presentence report. We agree. In United States v. Nuno-Para, 877 F.2d 1409 (9th Cir.1989), we held that the notice
requirement is not satisfied by the fact that the relevant information is present within the presentence report. Rather, such information either must be identified as a basis for departure in the presentence report, or, the court must advise the defendant that it is considering departure based on a particular factor and allow defense counsel an opportunity to comment.
Id. at 1415 (citations omitted) (emphasis added).
The government contends that notice should not be required in Brady's case because But in United States v. Rafferty, 911 F.2d 227, 230 (9th Cir.1990), we rejected the contention that the notice requirement does not apply if the ground for departure should have been readily apparent to the defendant. Thus Brady should have been notified before sentencing that the court intended (1) to deny him the acceptance of responsibility reduction, 3 (2) to depart from the Guidelines based on the court's determination of Brady's state of mind, (3) to enhance the sentence based on the firearm discharge, and (4) to run the sentences consecutively rather than concurrently. Only the acceptance of responsibility issue presents disputed facts that should be resolved at an evidentiary hearing on remand. The trial court will of course be bound by our rulings on disputed legal questions in determining the proper sentence on remand.
The Guidelines allow a two-level reduction in the defendant's total offense level if the "defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. Sec. 3E1.1(a). This reduction applies whether the conviction is based on a guilty plea or on a guilty verdict following trial. U.S.S.G. Sec. 3E1.1(b). In its commentary, the Commission lists several factors to guide a sentencing court in deciding whether the defendant accepted responsibility for his or her criminal conduct. U.S.S.G. Sec. 3E1.1, comment. (n. 1). 4
The sentencing court declined to follow the recommendation in the presentence report that Brady be given a two-level acceptance of responsibility reduction. Because the acceptance of responsibility reduction was included in the presentence report, Brady was led to believe that this issue would not be raised at the sentencing hearing. The trial court's denial of the two-level reduction in offense level, without notice to Brady of its intent to deny the reduction, deprived Brady of an adequate opportunity to present information to the court on his acceptance of responsibility.
We are not in a position to review effectively the acceptance of responsibility determination in this case. For us to defer to a trial court's acceptance of responsibility determination, 5 the record on this issue must be clear. The trial court did not refer to any of the factors outlined in the commentary to Sec. 3E1.1. The record does not inform us whether Brady voluntarily surrendered to authorities promptly after commission of the offense, whether he offered restitution to the Small family before his adjudication for manslaughter, or most importantly, whether he voluntarily and truthfully admitted to authorities that he was involved in the offenses and related conduct. 6
The sentencing court should have articulated its reasons and justifications for denying the Sec. 3E1.1 reduction, should have notified the defendant before the sentencing hearing of these tentative findings, and should have held a hearing on the acceptance of responsibility issue. We vacate the denial of the acceptance of responsibility reduction and remand for further sentencing proceedings, including a hearing on the facts in dispute on this issue.
The Guidelines permit departure only when a court fi...
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