U.S. v. Bryson, Docket No. 98-1195

• Decision Date: 31 December 1998
• Docket Number: Docket No. 98-1195
• Parties: UNITED STATES of America, Appellant, v. Lloyd BRYSON; Rodney Joseph, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 742

163 F.3d 742

UNITED STATES of America, Appellant, v. Lloyd BRYSON; Rodney Joseph, Defendants-Appellees.

Docket No. 98-1195.

United States Court of Appeals, Second Circuit.

Argued Oct. 22, 1998.

Decided Dec. 31, 1998.

Peter A. Norling, Assistant United States Attorney, Eastern District of New York, Brooklyn, New York, for Zachary W. Carter, United States Attorney for the Eastern District of New York (Timothy A. Macht, Assistant United States Attorney, of counsel), for Appellant.

William J. Stampur (Hurwitz, Stampur & Roth, New York, New York), for Defendant-Appellee, Lloyd Bryson.

Abraham L. Clott, the Legal Aid Society Federal Defender Division Appeals Bureau, for Defendant-Appellee, Rodney Joseph.

Before: NEWMAN, JACOBS, Circuit Judges, and TSOUCALAS, Judge. ^*

TSOUCALAS, Judge:

On March 5, 1998, defendants-appellees Lloyd Bryson and Rodney Joseph appeared for sentencing before the United States District Court for the Eastern District of New York (Weinstein, J.) following their pleas of guilty to a single count of conspiring to possess and distribute crack cocaine in violation of 21 U.S.C. § 846. At sentencing, the district court departed downward for Bryson to

                level 23 (from an original offense level of 31) and similarly reduced Joseph's adjusted offense level by 10 levels to 21 in light of alleged "extraordinary rehabilitation."   Both defendants were sentenced to 60 months imprisonment, 10 years supervised release and a $50 special assessment.  The government appeals, arguing that the sentencing court abused its discretion by departing downward because there was no evidence of extraordinary rehabilitation meriting downward departure
                

BACKGROUND

On February 17, 1994, police officers responded to a complaint that a burglary was in progress at an apartment in Staten Island. When the police arrived, they observed a shopping bag being thrown from the apartment's window. The police recovered the bag which contained 307 grams of crack cocaine in small plastic bags.

Defendants Bryson and Joseph barricaded themselves inside the apartment and for three hours ignored police commands to exit. When the standoff finally ended, the police entered the apartment and found a firearm, ammunition and two bags containing small ziplock bags identical to those enclosing cocaine base that had been recovered earlier. Bryson and Joseph were arrested, charged in state court and released on bail. A federal-state narcotics investigation ensued. In January of 1995, Bryson was arrested in connection with a "buy and bust" operation and has remained in custody since his arrest. On November 15, 1995, Joseph was also arrested by federal authorities, in connection with the 1994 offense and was released on bail. On June 13, 1996, both Bryson and Joseph pled guilty to the charge of conspiracy to possess with intent to distribute crack cocaine.

Bryson's presentence report ("PSR") depicted him as a 26 year-old male with a criminal record and virtually no employment history. The previous crimes listed in the PSR included possession of a loaded gun and forcible sexual abuse. Within months of his release from prison for these crimes, Bryson was arrested for the crime in this case. The PSR noted that Bryson "has not maintained any employment since 1992" and that he had been incarcerated most of the time since that date.

Joseph's PSR similarly described a 26 year-old male with a criminal history and an erratic employment history. Before dropping out of college, Joseph was arrested six times in addition to his arrest in this case. At age 19, he was arrested for possession of a handgun, after fleeing from police and resisting arrest. He received a one-year probationary term, which was revoked based on his failure to report to probation. While on probation, police discovered Joseph in an apartment with drugs. That case was conditionally discharged. Three weeks later, Joseph was observed carrying a distribution quantity of crack cocaine in small plastic bags. Joseph again was sentenced to probation, which he violated, serving six months in prison as a consequence. Prior to going to prison, and while still on probation, he was arrested for distributing crack cocaine. As a result of that violation of probation, Joseph was sentenced to community service. Joseph's final arrest was in June 1995, fourteen months after the offense in this case.

The PSR showed that Joseph had been employed since August 1995, six months after his arrest by state officials but before his federal arraignment, at a catering company operating out of Wagner College in Staten Island earning $200 per week. Prior to that, Joseph had been unemployed and supported by his parents.

SENTENCING

Bryson

In Bryson's case, there is no dispute that the applicable offense level is 31 with a range of imprisonment under the Sentencing Guidelines from 135 to 168 months. At sentencing, the district court briefly questioned Bryson, ascertaining that he had not gone to college despite having carried an 80 average in high school and having done well in math. The sentencing judge also observed that Bryson had "never worked for any substantial period of time." Bryson's attorney addressed the court stating that he believed Bryson "will become a productive citizen."

Bryson's mother also addressed the court and stated that she had spoken to Bryson "several times over the phone" and that he "has learned his lesson." In her request for After a brief recess, the court reconvened and stated that it would grant a downward departure. In its terse explanation of the reasons for its departure, the court stated:

                leniency, Mrs. Bryson assured the court that "[t]hese occurrences will never occur again."   The court replied, "[U]nfortunately Congress has passed laws that tie the Judge's hands....  I don't see what I can do here under the law."
                

Based on my observation of the defendant, his family, and statements and other information available, the court concludes that the defendant has substantially rehabilitated himself, and that a sentence in category three, offense level 31, of 135 months would substantially prevent integration into society when the defendant is released. Therefore, the court departs downward to level 23.

The court then sentenced Bryson to a term of 60 months imprisonment.

Joseph

Joseph's attorney argued at the sentencing hearing that Joseph deserved a downward departure based on post-offense rehabilitation because he had been on bail for four years since the offense and, in that time, he has held a job, has been living with his family and is living "the life that we all expect of a normal citizen in our society." His mother addressed the court, stating that her son "has changed his life around completely" because he has "been working, doing his job, helping when needed" and has been "attending church, doing work and everything we do .... his attitude is different ... he wants to finish college.... "

The government opposed the downward departure motion, arguing that the case law required "extraordinary" rehabilitation and that such departures were usually reserved for defendants who had undergone the difficult process of overcoming drug addiction. Further, the government argued that there was nothing "extraordinary" about maintaining employment and keeping court dates.

The court initially stated:

This is a very difficult case because the guidelines are applicable and the calculations are correct. Nevertheless, the court is left with the clear finding that the defendant has turned the corner from criminality to a legal lifestyle and that the probabilities are that he would not revert back to criminal conduct. This is one of those cases where the court is hedged in by the guidelines, which have been properly computed and applied here. I don't know what I can do with this case.

As with Bryson, the court recessed for a short time and reconvened for sentencing. The court observed that Joseph's case called for a sentence of 151 months but then went on to state, "the court is convinced that there has been substantial rehabilitation and that the long [prison] term called for would make it impossible for this defendant to integrate into society in a meaningful way." The court then reduced Joseph's offense level under the Sentencing Guidelines by ten levels to 21 and sentenced Joseph to 60 months in prison.

DISCUSSION

We review a district court's decision to depart from an applicable guideline range for abuse of discretion, "keeping in mind, however, that [a] district court by definition abuses its discretion when it makes an error of law." See United States v. Franklyn, 157 F.3d 90, 97-98 (2d Cir.1998) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)) (internal quotes and other citations omitted).

The Sentencing Guidelines provide a framework applicable to a "heartland" of typical cases embodying the conduct that a given guideline describes. A sentencing court dealing with an "atypical" case, therefore, need not be rigidly constrained by the proscriptions of the Guidelines. Such circumstances are, however, rare. United States v. Williams, 37 F.3d 82, 85 ("[T]he power to depart is to be used sparingly and is reserved for unusual cases."). Accordingly, departure due to atypicality is the exception, not the rule.

The Guidelines do not enumerate all of the factors that may individually or collectively render a case "atypical." In fact, any aggravating or mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines may This Court has held that a sentencing judge may exercise discretion and depart from the applicable guideline range in light of a defendant's efforts toward rehabilitation, provided those efforts are extraordinary. See United States v. Maier, 975 F.2d 944, 948-49 (2d Cir.1992). Such departure is usually conferred on drug-addicted defe...