U.S. v. Coe

• Citation: 891 F.2d 405
• Decision Date: 30 November 1989
• Docket Number: D,No. 166,166
• Parties: UNITED STATES of America, Appellee, v. Joseph Edward COE, Defendant-Appellant. ocket 89-1205.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 405

891 F.2d 405

UNITED STATES of America, Appellee, v. Joseph Edward COE, Defendant-Appellant.

No. 166, Docket 89-1205.

United States Court of Appeals, Second Circuit.

Argued Oct. 2, 1989.

Decided Nov. 30, 1989.

Sarah A. Chambers, Asst. Fed. Public Defender, New Haven, Conn. (Thomas G. Dennis, Fed. Public Defender, New Haven, Conn., on the brief), for defendant-appellant.

Peter S. Jongbloed, Asst. U.S. Atty., New Haven, Conn. (Stanley A. Twardy, Jr., U.S. Atty., New Haven, Conn., on the brief), for appellee.

Before NEWMAN, PRATT, and MAHONEY, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal raises narrow but significant questions concerning the authority of a district judge to impose a sentence higher than the applicable range called for by the Sentencing Guidelines. Joseph Edward Coe appeals from the April 21, 1989, judgment of the District Court for the District of Connecticut (Ellen Bree Burns, Chief Judge) convicting him, upon a guilty plea, of bank robbery, in violation of 18 U.S.C. § 2113(a) (1982), and escape from federal custody, in violation of 18 U.S.C. § 751(a) (1982). Coe challenges only the sentence--a prison term of 135 months for the bank robbery and a concurrent term of 48 months for the escape. This sentence exceeded the top of the applicable guideline range by four years. Coe argues that this upward departure was unlawful because the sentencing judge impermissibly relied on factors that the Sentencing Commission had already considered in formulating the Guidelines and also failed to follow procedures adopted by this Court in United States v. Cervantes, 878 F.2d 50 (2d Cir.1989), which was decided after the sentencing in this case. For reasons given below, we conclude that the case must be remanded for resentencing.

Facts

In early 1985, while serving a five-year term of imprisonment for bank robbery, ¹ Coe received permission to be released from a correctional facility to a halfway house. According to the terms of the travel furlough, Coe was to leave the Federal Correctional Institution in Englewood, Colorado, on June 6, 1988, and fly, unescorted, to Hartford, Connecticut, where he was to report to the Watkinson Halfway House that evening. While on route to the airport in Colorado, Coe stopped at a local bank to withdraw approximately $1,700 from his savings account, receiving $1,000 in cash and the rest in a bank check. Although he took his scheduled flight from Colorado to Connecticut, somewhere along the way Coe apparently decided not to report to the halfway house. Instead, he boarded a bus to Atlantic City where he gambled and lost $1,000. On June 7, 1988, the Bureau of Prisons declared Coe an escapee.

After a few days in Atlantic City, Coe travelled to New Haven, where he convinced his mother to cash the bank check he had obtained in Colorado. Coe then returned to Atlantic City, gambled some more, and again lost his money. Penniless, he resurfaced in New Haven where, between June 13 and June 27, he robbed four banks and stole a car. At two of the bank robberies, Coe told bank tellers that he was carrying a gun. At the other two, he toted a rolled-up newspaper, presumably to give the impression that he was armed. At none of the robberies, though, did a bank employee see Coe in possession of a gun, and the Government has not claimed that he was armed during any of the four robberies. Finally, on June 1, 1988, Coe entered a savings bank in a neighboring town, waited in a line of customers, and then left. A bank employee reported Coe's suspicious behavior to the police. The police stopped the car Coe was driving and, upon discovering that it was stolen, arrested him. Coe was later placed in the custody of federal marshals because he was a federal escapee.

In a written agreement, Coe consented to waive indictment and to plead guilty to a two-count information charging him with one of the four bank robberies and with the escape. As part of the agreement, he also stipulated to the other three bank robberies and to having obtained a total of $6,708 from all four robberies. In the presentence investigation report, the Probation Office calculated that Coe's offense level was 21 ² and his criminal history category was V, ³ which indicated a sentence range of 70 to 87 months.

At sentencing, the District Court rejected Coe's request for a downward departure. Instead, Chief Judge Burns elected to depart upward from the applicable guideline range for the following reasons:

[I]n viewing the guidelines and where it brings us in terms of the appropriate sentence, it certainly seems to me that given this case, the guidelines do not appropriately take into account some of the factors which we are concerned with and that is that pattern of robbery that has taken place over a short span of time and the threat to the community which that suggests. Mr. Coe represented to the tellers at the various banks that he was armed. I think it is conceded that he was not, or at least the Government cannot prove that he was, and the Court will assume that he was not, but he represented to the bank personnel that he was armed. The potential for violence in a situation of that kind is enormous and the threat, therefore, to innocent bystanders always is present. This is a factor which the Court is also very much concerned about and it would appear that the most important factor in sentencing Mr. Coe is to [sic ] going to be to protect the public from offenses which his previous pattern of behavior suggests that he is going to continue to commit.

Chief Judge Burns then imposed a sentence of 135 months on the bank robbery count and a concurrent term of 48 months on the escape count. The sentence of eleven and one-quarter years exceeded the top of the applicable guideline range by four years. The District Court also ordered Coe to make restitution of $6,708.

Discussion

1. Was the departure permissible under part 5K or part 4A? Section 212(a)(2) of the Sentencing Reform Act of 1984, as amended, provides that a judge may impose a sentence outside the range established by the applicable guideline if "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...." 18 U.S.C. § 3553(b) (Supp. V 1987). The Guidelines establish two different ways in which sentencing judges may exercise their discretion to depart from an applicable guideline range. The general authority is set forth in part 5K, which governs most departures. Tracking the statutory authority of section 3553(b), section 5K2.0 authorizes a departure if a case involves an aggravating or mitigating factor not given adequate consideration by the Commission or "if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate." United States Sentencing Commission, Guidelines Manual § 5K2.0, at 5.42 (1989) [hereinafter "U.S.S.G. ______"]; see United States v. Correa-Vargas, 860 F.2d 35, 37-38 (2d Cir.1988). Part 5K provides further guidance by identifying several considerations that may appropriately warrant departures, U.S.S.G. §§ 5K2.1-5K2.15, and part 5H identifies certain considerations that "ordinarily" do not warrant departures, id. at §§ 5H1.1-.6.

A more limited authority for departures is set forth in part 4A, which concerns the determination of the appropriate criminal history category, the horizontal axis of the sentencing table. Section 4A1.3 authorizes a departure if the appropriate criminal history category, as determined pursuant to section 4A1.1, "does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes...." ⁴ See United States v. Sturgis, 869 F.2d 54, 56 (2d Cir.1989).

Prior to our decision in United States v. Cervantes, supra, it made no difference whether a judge making a departure used the authority of part 5K or part 4A. That decision, however, imposed procedural requirements upon 4A departures that do not apply to 5K departures. We consider the nature and application of those 4A procedures in Part 2, infra. At this point, it suffices to note that the requirement of those procedures makes it important to determine, for all departures made after the decision in Cervantes, whether the departure was made under part 4A, where the procedures apply, or under part 5K, where they do not. Since Coe was sentenced before Cervantes was decided, it is entirely understandable that Chief Judge Burns saw no need to identify which of the two departure provisions she was applying. Her helpful explanation of the reasons for her departure, however, enables us to identify the three aggravating factors on which her decision to depart was based and determine whether each is a permissible factor and whether reliance upon it is authorized by part 4A or 5K.

The first factor mentioned by Chief Judge Burns was the "pattern of robbery that has taken place over a short span of time." Section 4A1.3(e) permits prior misconduct not resulting in conviction to be counted in determining the appropriate criminal history category. However, where a defendant commits a series of similar crimes, it would be elevating form over substance to regard the early episodes in the series as "prior criminal history" simply because the defendant pled guilty to the last in the series, rather than the first. Moreover, section 1B1.3(a)(2) defines "relevant conduct" for purposes of calculating the offense level to include "acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." ⁵ And section 1B1.2(a) provides that where a defendant stipulates to the commission of additional offenses, as Coe did in this case, those offenses are treated, for purposes of calculating the offense level, as though the defendant had been convicted of separate counts...