U.S. v. Carpenter, Docket No. 01-1503.

• Decision Date: 25 February 2003
• Docket Number: Docket No. 01-1503.
• Parties: UNITED STATES of America, Appellant, v. Donald P. CARPENTER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

320 F.3d 334

UNITED STATES of America, Appellant, v. Donald P. CARPENTER, Defendant-Appellee.

Docket No. 01-1503.

United States Court of Appeals, Second Circuit.

Argued: August 8, 2002.

Decided: February 25, 2003.

COPYRIGHT MATERIAL OMITTED

Elizabeth S. Riker, Assistant United States Attorney (Joseph A. Pavone, United States Attorney for the Northern District of New York, of counsel), Syracuse, NY, for Appellant.

Samuel C. Young, Costello, Cooney & Fearon, LLP, Syracuse, NY, for Defendant-Appellee.

Before: CALABRESI, POOLER, and SACK, Circuit Judges.

SACK, Circuit Judge.

The government appeals from a judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Chief Judge) reimposing on the defendant, Donald P. Carpenter, the same sentence it had imposed upon him prior to his first appeal to this Court and our remand to the district court for resentencing.

When Carpenter was originally sentenced, in March 2000, the district court determined that his total offense level for the crime of conviction — conspiracy to steal firearms from a licensed firearms dealer — was 12, after giving him the benefit of a "minor participant" downward adjustment pursuant to United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 3B1.2.¹ The court sentenced Carpenter principally to a split term of five months' imprisonment followed by five months' home detention, as permitted by U.S.S.G. § 5C1.1(d)(2). On the government's appeal, and after Carpenter had completed serving his split sentence, we held that the minor participant adjustment was unavailable to him as a matter of law. United States v. Carpenter, 252 F.3d 230 (2d Cir.2001) ("Carpenter I"). We therefore vacated the judgment of the district court and remanded the matter "to the district court with instructions to resentence Carpenter at a base offense level of 15 and a criminal history category of I, which carries a sentencing range of 18-24 months." Id. at 238. We left open the possibility, however, that the district court might decide to give Carpenter the benefit of a further one-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b), in which case, we said, "Carpenter shall be sentenced at a base offense level of 14 and a criminal history category of I, which carries a sentencing range of 15-21 months." Carpenter I, 252 F.3d at 238.

On remand, instead of sentencing Carpenter in accordance with that mandate, the district court granted him a three-level downward departure based on the additional level for acceptance of responsibility contemplated by our mandate and some unspecified combination of (1) Carpenter's extraordinary rehabilitation, (2) a finding that his criminal conduct constituted "aberrant behavior" in an otherwise law-abiding life, (3) a finding that further imprisonment would have a detrimental effect on Carpenter's employer, and (4) a conclusion that choosing not to downwardly depart would, under the Guidelines, preclude Carpenter from receiving credit for time he had already served in home detention pursuant to the district court's erroneous original sentence. Under the adjusted offense level of 12, the same as his original offense level, the district court reinstated Carpenter's original sentence, including home detention, which he had already served.

We conclude that the downward departure granted by the district court was unwarranted in part because of the mandate in Carpenter I and in part on the merits. We remand, however, for the court to consider a limited downward departure to account for the home detention Carpenter served.

BACKGROUND

Factual Background

We described the facts of this case at some length in Carpenter I, 252 F.3d at 231-32. We repeat them here only insofar as we think it necessary to explain our resolution of this appeal.

In or about September 1994, Carpenter entered into a conspiracy with Marty Wise, a sales clerk at Dick's Clothing and Sporting Goods ("Dick's"), a licensed firearms dealer located near Syracuse, New York, to steal and resell firearms from Dick's. See id. During the course of the two-and-one-half-year conspiracy, the conspirators committed some fifty thefts involving forty-two firearms.² Id. at 232. To execute each theft, Carpenter entered Dick's during Wise's shift, and Wise provided Carpenter with a gun without receiving payment from Carpenter. Id. Each time Carpenter left the store, Wise told the cashier that Carpenter was "all set." Carpenter was thus able to remove the firearm from the store without paying for it. Id. Carpenter was a former partner in another gun shop and a firearms licensee, and as such was easily able to fence the stolen guns. He divided the proceeds of their sale equally with Wise. Id.

The conspirators' enterprise was eventually discovered when Carpenter was unable to produce a receipt for one of the firearms during a confrontation with the store manager at Dick's. Id. Carpenter immediately confessed his role in the thefts and revealed Wise's involvement. At the manager's behest, Carpenter visited Wise and urged him to admit to his participation in the scheme. Wise relented and submitted his resignation to Dick's. Both Carpenter and Wise then confessed the details of the conspiracy to agents of the United States Bureau of Alcohol, Tobacco, and Firearms.³ Id. On July 2, 1998, Carpenter pleaded guilty to an information charging him with one count of conspiring to steal firearms from a licensed firearms dealer in violation of 18 U.S.C. §§ 371 & 924(m). Carpenter I, 252 F.3d at 232-33.

Procedural History

At his first sentencing hearing, on June 2, 1999, Carpenter argued for a downward departure from the offense level of 17 recommended in his pre-sentence report because of his relatively minor role in the conspiracy, see U.S.S.G. § 3B1.2, and on the ground that he had voluntarily disclosed the conspiracy to the store manager, see U.S.S.G. § 5K2.16.⁴ Carpenter I, 252 F.3d at 233. Describing the case as "close," the district court declined to depart on the basis of Carpenter's voluntary disclosure of the conspiracy, explaining that Carpenter did not disclose his involvement until he was confronted by the store manager. Id. After extensive further hearings, the district court granted Carpenter a three-level downward departure on the basis of what it concluded was his comparatively minor role in the conspiracy. Id. The district court also departed downward two additional levels for Carpenter's acceptance of responsibility. Id.

Carpenter's resulting offense level of 12, combined with his criminal history category of I, yielded a Guideline imprisonment range of ten to sixteen months. More important for purposes of this appeal, it placed Carpenter in "Zone C" of the Sentencing Table, which qualified him for a "split sentence" under which he could serve up to one-half of his term under home detention. See U.S.S.G. §§ 5C1.1(d)(2) & 5C1.1(e)(3); Carpenter I, 252 F.3d at 233. The district court sentenced Carpenter at the lowest end of that range, ten months, ordering him to serve a term of five months' imprisonment followed by five months' home detention. Id.

The government appealed the district court's decision to depart downward in light of Carpenter's role in the conspiracy, arguing that as a matter of law such a departure is not warranted merely because, as in Carpenter's case, a defendant is less culpable than his or her co-conspirator. Id. at 234. We agreed, noting that the law of this Circuit makes clear that "`[a] reduction [pursuant to Guidelines § 3B1.2] will not be available simply because the defendant played a lesser role than his co-conspirators.'" Id. at 235 (quoting United States v. Rahman, 189 F.3d 88, 159 (2d Cir.1999) (per curiam), cert. denied, 528 U.S. 1094, 120 S.Ct. 830, 145 L.Ed.2d 698 (2000)) (alternations in original). We therefore vacated Carpenter's sentence and remanded for resentencing.

Our mandate in Carpenter I was narrow. The decretal paragraph read in full:

The judgment imposed by the district court is vacated as to the sentence only and the matter is remanded to the district court with instructions to resentence Carpenter at a base offense level of 15 and a criminal history category of I, which carries a sentencing range of 18-24 months. See 18 U.S.C. § 3742(f)(1); Fed.R.Crim.P. 35(a). If, however, the district court determines, upon motion by either party, that Carpenter is entitled to an additional one level reduction in his offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b), then Carpenter shall be sentenced at a base offense level of 14 and a criminal history category of I, which carries a sentencing range of 15-21 months.

Carpenter I, 252 F.3d at 238.

While Carpenter's sentence was on appeal, he completed his original sentence of five months' imprisonment at a community correctional center (or "halfway house") and five months' home detention. By all accounts, Carpenter served his term in the halfway house commendably, taking a job during his incarceration in the machine room of a local manufacturing plant. He later received several supportive letters from his supervisors indicating that he had been a "role model" for other inmates. By June 8, 2001, when we issued our decision in Carpenter I, Carpenter had returned home to Syracuse, been relicensed to work as a restaurant manager, and had completed his term of home detention.

On remand to the district court, defense counsel moved for a two-level downward departure pursuant to Guidelines § 5K2.0 for reasons "not adequately taken into consideration... in formulating the guidelines." U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). Carpenter's counsel submitted a memorandum of law describing the grounds on which Carpenter thought a departure was warranted, urging that the mandate of Carpenter I did not preclude the district court from departing a second time. Letter dated August...