U.S. v. Collins

Decision Date05 August 1997
Docket NumberNo. 96-5039,96-5039
Citation122 F.3d 1297
Parties97 CJ C.A.R. 1502 UNITED STATES of America, Plaintiff-Appellant, v. James COLLINS, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Daniel Goodman, U.S. Department of Justice, Washington, DC (Stephen C. Lewis, U.S. Attorney and Allen J. Litchfield, Assistant U.S. Attorney, Northern District of Oklahoma, Tulsa, OK, with him on the briefs), for Plaintiff-Appellant.

Jeffrey D. Fischer (Lewis S. Fine with him on the brief), Tulsa, OK, for Defendant-Appellee.

Before SEYMOUR, ANDERSON, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Defendant James Collins pleaded guilty to one count of knowingly and intentionally distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and was sentenced to 42 months imprisonment. On appeal, the government challenges the district court's downward departure from the career offender guideline range. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.


On September 19, 1995, at age 64, James Collins pleaded guilty to one count of knowingly and intentionally distributing 279.7 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). The Presentence Investigation Report (PSR) concluded that Collins's base offense level was 20, U.S.S.G. § 2D1.1(c)(10) (at least 200 but less than 300 grams of cocaine), and recommended a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1. The PSR calculated that Collins had a criminal history category of IV.

U.S.S.G. § 4A1.1. Under the Guidelines, an adjusted offense level of 17 and a criminal-history category of IV would have resulted in a range of 37-46 months.

The PSR also concluded, however, that Collins qualified as a career offender under U.S.S.G. § 4B1.1. He was over 18; the instant offense was a controlled substance offense; and Collins had two prior felony convictions for controlled substance offenses. In 1984, at age 53, Collins was arrested in Okmulgee County, Oklahoma, for possession of marijuana with intent to distribute. In 1986, fifteen months later, he pleaded guilty to that offense and received a five-year sentence with the balance suspended after nine months served. In 1991, at age 59, he was arrested in Phoenix, Arizona, for conspiring to sell and transport cocaine. He pleaded guilty and received six months imprisonment and seven years probation. 1 As a career offender, Collins's adjusted offense level was 29 and his criminal-history category was VI, which resulted in a range of 151-188 months.

Prior to sentencing, Collins filed a motion for a downward departure on the basis that his career offender status "significantly over-represents the seriousness of [his] criminal history or the likelihood that the defendant will commit further crimes." U.S.S.G. § 4A1.3, p.s. Collins set forth three grounds supporting a downward departure: (1) his age, (2) his ill health, and (3) a predicate conviction close to ten years prior to the instant offense resulting in a relatively lenient sentence. The government opposed the departure, arguing that Collins's status as a career offender properly reflected the seriousness of his criminal history and that his age and health problems were not so extraordinary as to warrant a downward departure.

At the sentencing hearing, the district court granted Collins's motion for downward departure, explaining its reasoning as follows:

The Court finds that Mr. Collins'[s] age in addition to his various infirmities including heart disease, high blood pressure, ulcers, arthritis, and prostatitis warrant a downward departure from the career offender category. Further it's significant that the application of the career offender category effectively would change his sentence from a little more than three years ... to possibly life imprisonment....

The departure is based on two prongs under [U.S.S.G. §§ ] 4A1.3 and 5H1.1. Due to defendant's age and infirmity the Court believes [a departure is] warranted because ... the categorization significantly over represents the likelihood that the defendant will commit future crimes. And secondly, because the resulting increase likely from three years ... to over 12 and a half years ... will likely have an effect of a degree not adequately taken into consideration by the sentencing commission.

App't.App. at 71-72. The court also noted that Collins's 1986 conviction was almost ten years old, adding that if "there had been a timely preliminary hearing and progress in the case, this matter may have resulted in a conviction prior to February 3, 1985, and thus would not have constituted a predicate offense under [U.S.S.G. § 4B1.1]." Id. at 72. In addition, the court found that Collins's previous narcotics convictions were "minor offenses" for which his sentences were "relatively lenient." Id.

In the Judgment entered on January 17, 1996, the district court clarified its reasons for granting Collins a downward departure:

The Court adopts the factual findings and guideline application in the presentence report, except: The court finds that the defendant is not a career offender pursuant to U.S.S.G. § 4B1.1, as recommended in the presentence report.... The Court departs from the career offender category because it significantly over-represents the seriousness of defendant's criminal history and the likelihood that the defendant will commit further crimes. U.S.S.G. §§ 4A1.3, 5K2.0. This finding is based on the following factual findings: the defendant is elderly and infirm, id. § 5H1.1, and one of the predicate offenses for the career offender categorization occurred App't App. at 18. After departing from the career offender guideline range (151-188 months), the court imposed a sentence within the range that would have applied without the career offender enhancement (37-46 months).

close to ten years prior to the instant offense, id. § 4A1.3. 2

On appeal, the government contends that the district court erred in departing downward from the career offender guideline because: (1) all of the factors upon which the district court relied were adequately taken into account by the Sentencing Commission, (2) the record does not support the district court's finding that Collins's career offender status overstates his criminal history and the likelihood that he will engage in further criminal activity, and (3) the departure of 109 months is unreasonable.


Because the Supreme Court's recent decision in Koon v. United States, --- U.S. ----, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), has altered our multi-step approach in reviewing departures, we begin by setting forth the general framework under which a district court may consider a departure and the role of appellate courts in reviewing a decision to depart. We then briefly discuss the respective roles of the district and appellate courts in the particular context of departures under U.S.S.G. § 4A1.3 from the career offender category. Finally, we apply this post-Koon departure analysis to the case at hand.

A. Overview of Koon
1. The District Court's Decision to Depart

Under the Sentencing Guidelines, after a district court determines a defendant's offense level, criminal history category, and the applicable guideline range, the district court should consider whether a case is a candidate for a departure. U.S.S.G. § 1B1.1(i). The Sentencing Guidelines permit a sentencing court to depart from the Guidelines if "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.' " U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). In Koon, the Supreme Court noted that this language necessarily implies a distinction between a "heartland case" and an "unusual case." Koon, at ----, 116 S.Ct. at 2044. The Court explained:

The Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

Id. (quoting U.S.S.G. ch. 1 pt. A, intro. comment. 4(b)).

In deciding whether the facts of a particular case warrant a departure, sentencing courts must look to all the factors that potentially make a case atypical. Except for a limited number of "forbidden" factors, 3 the guidelines do not "limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." Id. (quoting U.S.S.G. ch. 1 pt. A, intro. comment. 4(b)). "Sentencing courts are not left adrift, however," id. at ----, 116 S.Ct. at 2045, because the Guidelines list factors that are encouraged as bases for departure and those that are discouraged. The Court in Koon instructed sentencing courts on the proper evaluation of potential departure factors If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. If a factor is unmentioned in the Guidelines, the court must, after considering the "structure and theory of both relevant individual guidelines and the Guidelines taken as a whole," decide whether it is sufficient to take the case out of the Guideline's heartland. The court must bear in mind the...

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