U.S. v. Brewster

• Citation: 127 F.3d 22
• Decision Date: 05 September 1997
• Docket Number: No. 97-1448,97-1448
• Parties: UNITED STATES of America, Appellee, v. Charles E. BREWSTER, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 22

127 F.3d 22

UNITED STATES of America, Appellee, v. Charles E. BREWSTER, Defendant, Appellant.

No. 97-1448.

United States Court of Appeals First Circuit.

Heard Sept. 5, 1997.

Decided Oct. 2, 1997.

Henry W. Griffin, by appointment of the court, for defendant, appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, and Donald E. Clark, Assistant United States Attorney, were on brief, for appellee.

Before SELYA, BOUDIN and STAHL, Circuit Judges.

SELYA, Circuit Judge.

In this sentencing appeal, defendant-appellant Charles E. Brewster protests an upward departure that the district court premised in large measure on prior, uncharged criminal conduct--a history of persistent and vicious domestic violence--dissimilar to the offenses of conviction (being a felon in possession of a firearm and making false statements in connection with the procurement of firearms). We affirm the sentence.

I. HOW THE CHARGES AROSE

We distill the facts from the plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Talladino, 38 F.3d 1255, 1258 (1st Cir.1994); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).

In August 1996, police officers responded to a report of domestic violence at the abode shared by the appellant and his wife in Livermore Falls, Maine. The officers observed Mrs. Brewster's injuries, tried to calm the couple's three children (ages 10, 11 and 16), took statements from both Mrs. Brewster and her sister-in-law, and arrested the appellant. While being transported to the county jail, Brewster spoke volubly about his ardor for hunting and described the firearms (a 30-30 rifle and 16-gauge shotgun) that he owned and kept in his house. When a routine criminal record check disclosed a prior felony conviction for armed robbery, the police repaired to the house and, with Mrs. Brewster's consent, seized the two weapons. Further investigation revealed that the appellant had purchased two other rifles without disclosing his status as a convicted felon. Meanwhile, Mrs. Brewster obtained a state court "protection from abuse" order, and state authorities released Brewster on bail, conditioned upon his refraining from all contact with his wife. The appellant promptly violated this restriction.

In September 1996, a federal grand jury returned an indictment charging the appellant with one count of making false statements on a firearm application form in violation of 18 U.S.C. §§ 922(a)(6), 924(a)(2) (1994), and two counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (1994). In due course, the appellant pleaded guilty to all three counts.

II. HOW THE SENTENCE DERIVED

The district judge pondered several pieces of evidence at the disposition hearing. Among these was a handwritten statement appended to the PSI Report, in which the appellant admitted to purchasing guns knowing that he was legally forbidden from doing so. In a second handwritten statement, also appended to the PSI Report, Mrs. Brewster chronicled 17 years of horrific domestic abuse. She explained that sheer terror had forestalled any contact with the authorities before August of 1996: she feared not only for her life, but also for what might happen to her children if she were slaughtered. Her fear of bodily harm stemmed from her husband's repeated minations during years and years of physical abuse. She described incidents in which the appellant threw her on the floor and stomped on her cranium with heavy work boots, banged her head against a counter, threw knives at her, and at various times smothered, kicked, punched, bit, and strangled her. In addition, she had been threatened "with every kind of brutal death possible." ¹

The appellant made little effort to conceal his abusive behavior. In recorded interviews with the state police, several neighbors and friends described incidents involving physical violence and vulgar language, and reported that they had heard the appellant threaten to kill his wife on several occasions.

After making an upward adjustment for multiple weapons, U.S.S.G. § 2K2.1(b)(1)(A), and a downward adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1, Judge Carter settled upon an offense level (OL) of 18. He then assessed criminal history points for an armed robbery conviction and a breaking and entering conviction but overlooked seven other convictions because of their age or the unavailability of records. The resultant point score placed Brewster in criminal history category (CHC) III. This matrix (OL 18; CHC III) yielded a guideline sentencing range (GSR) of 33 to 41 months.

The government urged the court to depart upward on the ground that Brewster's CHC underrepresented the gravity of his past criminality and the corresponding risk of recidivism. The appellant objected. The ensuing debate centered around U.S.S.G. § 4A1.3 (1995), pertinent portions of which are reproduced in the Appendix. Judge Carter expressed concern about whether section 4A1.3's language and structure permitted a departure based on spousal abuse, especially since that abuse--which he considered relevant but not similar to the offense of conviction--had never been adjudicated as criminal conduct. In the last analysis, however, the judge opined that the case qualified for a departure because of the 17-year history of unrelieved domestic violence and the existence of seven prior convictions for serious crimes that had not been counted in arriving at the CHC. The judge then mentioned a third factor, declaring that the appellant's refusal effectively to pursue an alcohol abuse program or to undertake domestic abuse counseling "[a]dd[ed] to all of this in terms of the unusual character of this case."

Turning to the matter of degree, the court determined that the upward departure should be fashioned by simulating an increase from CHC III to CHC V. The court stressed that a sentence at the upper limit of the simulated GSR (51-63 months) would produce a prison term of approximately five years, which, when followed by the maximum available term of supervised release (three years), would keep the appellant away from his wife until their youngest child had reached age 18. At that time, the court reasoned, Mrs. Brewster would no longer be "held hostage" in an abusive situation by her concern for her children. The court added that a sentence of that magnitude was "appropriate in recognizing the serious nature of this prior criminal conduct as related conduct to the offense conduct of possession of the firearm."

When all was said and done, the court sentenced the appellant to serve an incarcerative term of 63 months, followed by a three-year term of supervised release (the conditions of which, among other things, proscribed any contact or communication with his wife absent written permission from the court). This appeal followed.

III. THE STANDARD OF REVIEW

We review departures for abuse of discretion. See Koon v. United States, 518 U.S. 81, ---- - ----, 116 S.Ct. 2035, 2046-47, 135 L.Ed.2d 392 (1996). In the process, we must determine three things: whether the articulated ground for departure is conceptually appropriate, whether the record provides sufficient factual support for a finding that the ground exists, and whether the degree of departure is reasonable. See United States v. Dethlefs, 123 F.3d 39, 43 (1st Cir.1997).

For organizational purposes, we compress the departure inquiry in this case by examining the legal and factual sufficiency of the departure grounds in tandem. Only then do we inquire into the degree of departure.

IV. THE GROUNDS FOR DEPARTURE

The court below departed because it determined that the appellant's CHC significantly underrepresented his proclivity to commit future crimes and the seriousness of his criminal past in two ways: first, CHC III failed adequately to reflect the gravity and duration of his vicious, assaultive interspousal behavior; and second, CHC III failed adequately to reflect the cumulative impact of seven prior convictions that yielded no criminal history points. We discuss these factors seriatim. We then discuss the court's allusion to the appellant's failure effectively to pursue a treatment program for domestic violence or alcohol abuse.

A. Domestic Abuse as a Ground for Departure.

The guideline that the district court invoked, U.S.S.G. § 4A1.3, permits a departure if reliable information indicates that the CHC "significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes." The guideline's text relates that such information "may include, but is not limited to " the type illustrated in a series of five vignettes. Id. (emphasis supplied). The first four examples address charged or adjudicated criminal conduct, and the fifth addresses conduct which, although unadjudicated (and perhaps uncharged), is similar to the offense of conviction.

In contrast to these examples, the court below predicated the instant departure principally on Brewster's 17-year history of unadjudicated, uncharged domestic abuse, which it termed "the most appalling part of this man's record." Judge Carter recognized that none of the illustrations contained in section 4A1.3 applied to this misconduct, as the appellant had never been charged with, or convicted of, abusive behavior, and this prior misconduct bore no similarity to the offenses of conviction. But the judge looked to the guideline's introductory language and concluded that Brewster's pervasive domestic abuse "amply demonstrated" the likelihood that he will commit future crimes. Brewster attacks this finding on three fronts. He maintains that the domestic abuse, in and of itself, is not a legally permissible ground for departure under section 4A1.3; that it is not a...