U.S. v. Brewer, 89-5371

• Decision Date: 29 March 1990
• Docket Number: No. 89-5371,89-5371
• Citation: 899 F.2d 503
• Parties: , 3 Fed.Sent.R. 24 UNITED STATES of America, Plaintiff-Appellant, v. Lynda Gail BREWER and Teresa K. Evans, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 503

899 F.2d 503

58 USLW 2634, 3 Fed.Sent.R. 24

UNITED STATES of America, Plaintiff-Appellant, v. Lynda Gail BREWER and Teresa K. Evans, Defendants-Appellees.

No. 89-5371.

United States Court of Appeals Sixth Circuit.

Argued Nov. 8, 1989.

Decided March 29, 1990.

Joe B. Brown, U.S. Atty. (argued), Office of U.S. Atty., Nashville, Tenn., for plaintiff-appellant U.S.

Carol L. Soloman (argued), Nashville, Tenn., for defendant-appellee Brewer.

Robert L. Smith (argued), Smith & Hirsch, Nashville, Tenn., for defendant-appellee Evans.

Before MERRITT, Chief Judge, WELLFORD, Circuit Judge, and DeMASCIO ^*, Senior District Judge.

WELLFORD, Circuit Judge.

The issue in this case is whether the district court departed from the applicable sentencing guidelines for proper reasons under the new Sentencing Act. Co-defendants Brewer and Evans plead guilty to embezzlement. At the sentencing hearing, the district court determined that circumstances existed which justified a downward departure in sentencing from the range indicated by the guidelines. We will remand to the district court for the reasons indicated.

Teresa Evans and Lynda Brewer were indicted by a grand jury on one count of embezzlement under 18 U.S.C. Secs. 652 and 2 (aiding and abetting). Both entered guilty pleas, and a sentencing hearing was held. The district court sentenced both to probation for a period of three years, except that both would be subject to limited home detention for the first ninety days. The court assessed both defendants a special assessment of $50 under the guidelines.

Brewer and Evans were tellers of the Wayne County Bank in Waynesboro, a small Tennessee community of less than 2500 people. They had periodically embezzled money from the bank over an approximate ten-month period. Evans admittedly embezzled approximately $19,000, and Brewer admittedly embezzled approximately $9,000. In an attempt to cover up their scheme, they periodically adjusted the bank vault balance sheets and also covered for each other. After an unannounced audit of the bank in August of 1988, $28,000 was found to be missing. Their scheme having been uncovered but before any indictment, both defendants voluntarily repaid the bank the missing funds which they had embezzled. They made guilty pleas to the offense charged in the indictment. The responsible bank official expressed surprise that these trusted employees had been guilty of embezzlement.

The presentence reports indicated that the base offense level was four. ¹ Both were deemed responsible for the entire $28,000 which had been taken, and this factor was considered under "relevant conduct." United States Sentencing Commission, Guidelines Manual, Sec. 1B1.3(a)(1), (3). Because the amount involved in the crime exceeded $20,000 but was less than $40,000, a six-level addition was indicated. U.S.S.G. Sec. 2B1.1(b)(1)(G). Two levels were added because the offense involved more than minimum planning. U.S.S.G. Sec. 2B1.1(b)(4). Since both defendants accepted responsibility for their actions, two levels were also subtracted. U.S.S.G. Sec. 3E1.1(a). Pursuant to U.S.S.G. Sec. 4B1.3, the offense level was indicated to be eleven by the presentence report.

At the sentencing hearing, the district court rejected the probation officer's conclusion in the presentence report that an upward adjustment was warranted under the criminal livelihood section and found instead that the offense level was ten; the government does not take issue to this offense level determination. The parties essentially agreed that the district court had the following options, based on this offense level, in sentencing: (1) six months (minimum) incarceration; (2) one-half of the six months in prison and one-half in a halfway house; or (3) six months in a halfway house. ² The probation officer, in the presentence reports, found no basis to warrant a departure. The district court judge, however, rather than follow the above sentencing options under the guidelines, effectuated a downward departure and, in essence, gave defendants three years probation.

The district court judge justified his departure on the following factors:

(1) the degree of community support that both of these defendants obviously enjoy....

(2) the degree of remorse that has been demonstrated since the first day of their discovery....

(3) the degree of promptness of restitution made in this case.

(4) the previous history and continued community involvement....

(5) the fact that their behavior is totally aberrant from their previous life history (6) the fact that both of these women have children at home of tender age and are needed at home.

(7) the fact that the victim, Mr. M.L. Howard, the president of the bank which was victimized in this case, recommends clemency....

(8) the fact that incarceration would serve no useful purpose.

The judge found that because these factors were not taken into consideration sufficiently under the guidelines, a downward departure was warranted. The government has established proper authority to undertake this appeal and now appeals the downward departure by the district court.

We first determine on appeal whether the factors cited by the district court as justifying its decision to depart were adequately taken into consideration by the Sentencing Commission when formulating the guidelines.

We have indicated that ordinarily a three-step procedure is used in determining whether the district court appropriately departed from the guidelines. First, the reviewing court determines whether "the case is sufficiently 'unusual' to warrant departure." United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Joan, 883 F.2d 491, 494 (6th Cir.1989) (adopting three-part test enunciated in Diaz-Villafane ). This is purely a question of law. Diaz-Villafane, 874 F.2d at 49.

Second, we determine whether the circumstances, if conceptually proper, actually exist in the particular case. That assessment involves factfinding and the trier's determinations may be set aside only for clear error. See 18 U.S.C. Sec. 3742(d).

Third, once we have assured ourselves that the sentencing court considered circumstances appropriate to the departure equation and that those factors enjoyed adequate record support, the direction and degree of departure must, on appeal, be measured by a standard of reasonableness. 18 U.S.C. Sec. 3742(e)(2); et al.

874 F.2d at 49.

The district court justified its departure on the ground that circumstances existed in this case which the Commission did not adequately take into consideration in formulating the guidelines. Under 18 U.S.C. Sec. 3553(b),

[t]he court shall impose a sentence ... 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.

18 U.S.C. Sec. 3553(b) (emphasis added). As U.S.S.G. Sec. 5K2.0 indicates:

[w]here the applicable guidelines, specific offense characteristics, and adjustments do take into consideration a factor listed in this part, departure from the guideline is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction.

U.S.S.G. Sec. 5K2.0 (emphasis added). "The guidelines, commentaries, and policy statements clearly indicate that departures should be rare." United States v. Uca, 867 F.2d 783, 787 (3d Cir.1989) ("departures are to be the exception, not the rule"); Diaz-Villafane, 874 F.2d at 52. Thus, a sentencing court should not depart from the guidelines when the Sentencing Commission has adequately taken into consideration the pertinent factors unless rare and exceptional circumstances warrant departure. In reviewing the sentencing court's departure, we apply the facts found by the district court unless they are clearly erroneous. United States v. Perez, 871 F.2d 45, 47 (6th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3227, 106 L.Ed.2d 576 (1989). We make a de novo review of the lower court's conclusions of law. United States v. Ryan, 866 F.2d 604 (3d Cir.1989). We also give "due deference to the district court's application of the guidelines to the facts." 18 U.S.C. Sec. 3742(e).

In promulgating the guidelines, one of the Sentencing Commission's primary goals was to impose a sentence "based upon the crime committed, not the offender." United States v. Mejia-Orosco, 867 F.2d 216, 218 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). The Sentencing Commission has stated that Congress had three objectives in passing the sentencing reform law: (1) honesty, (2) uniformity, and (3) proportionality. "Congress first sought honesty in sentencing." U.S.S.G. Ch. 1, Pt. A, Intro. Comment (emphasis in original). In essence, Congress and the Commission have sought less disparity in sentencing.

Second, Congress sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders. Third, Congress sought proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity.

Id. (emphasis in original). One of the major efforts was to reduce the sentencing judge's discretion:

[G]ranting such broad discretion [to the judge] risks correspondingly broad disparity in sentencing, for different courts may exercise their discretionary powers in different ways. That is to say, such an approach risks a return to the wide disparity that Congress established the Commission to limit.

Id. While the guidelines are not "mandatory sentencing rules," United States v. Allen, 873 F.2d 963, 967 (6th Cir.1989) ...