U.S. v. Crook

• Citation: 9 F.3d 1422
• Decision Date: 23 November 1993
• Docket Number: No. 92-10404,92-10404
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James Russell CROOK, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1422

9 F.3d 1422

62 USLW 2360

UNITED STATES of America, Plaintiff-Appellant, v. James Russell CROOK, Defendant-Appellee.

No. 92-10404.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 1993.

Decided Nov. 23, 1993.

Samuel Wong, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellant.

Charles M. Bonneau, Sacramento, CA, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: REINHARDT, TROTT and RYMER, Circuit Judges.

RYMER, Circuit Judge:

The United States appeals the district court's downward departure in sentencing James Russell Crook after a plea of guilty to manufacturing 751 marijuana plants, in violation of 21 U.S.C. § 841(a)(1). The district court departed one level based on its finding that Crook believed he was growing the plants for personal use, and one level because Crook lost his family home in civil forfeiture proceedings. We have jurisdiction pursuant to 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291, and we hold that the district court incorrectly relied on forfeiture as a ground for departure and clearly erred in finding that Crook manufactured more than 700 marijuana plants for personal use. Accordingly, we vacate Crook's sentence and remand for resentencing.

I

On April 16, 1991, drug enforcement agents searched Crook's house in Orangevale, California pursuant to a search warrant and found 388 marijuana seedlings in a locked room in the garage. The search also disclosed plant cultivation paraphernalia, a plastic bag sealing machine, and a map of the Sacramento River Delta. Edwin Ervin, Crook's stepson, was there at the time and escorted the agents to a wetlands site near the Sacramento River, where they found 363 marijuana plants approximately 18-24 inches tall growing in paint buckets on makeshift barges. Both Ervin and Crook's wife, Barbara, said that Crook had been cultivating marijuana. Crook voluntarily surrendered on April 16, 1991, and told the agents that he was growing marijuana for his personal use.

On May 3, 1991, Crook and Ervin were indicted on one count of conspiracy to manufacture marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of manufacture of marijuana plants, 21 U.S.C. § 841(a)(1). Crook pled guilty to the manufacturing count on September 11, 1991. ¹ The government agreed to move for dismissal of the conspiracy count and to recommend an adjustment for acceptance of responsibility and a sentence at the bottom end of the guidelines range. With the adjustment for acceptance of responsibility, Crook's total offense level was 28, resulting in a guidelines range of 78-97 months at Criminal History Category I.

In his sentencing memorandum, Crook argued for a downward departure because of the civil forfeiture of his house, ² because he manufactured the marijuana for personal use, and because of the likelihood of his successful drug rehabilitation. He claimed that he could not afford to support his drug habit through purchases, so he had manufactured the 751 marijuana plants for personal use. Crook also told the probation officer that he smoked approximately seven grams of marijuana per day. ³

The parties stipulated that the government had no evidence of marijuana sales by Crook, that no items commonly associated with sales of marijuana (such as scales, ledgers, or pagers) were located during the search of Crook's house, and that no evidence of substantial wealth was located during searches of Crook's house and bank accounts. The parties further stipulated that average marijuana production is less than 273 grams per plant and that using a figure of 273 grams per plant, Crook's 751 plants would have yielded 450 pounds of marijuana, including 225 pounds of high-quality female marijuana, with a wholesale value of between $382,000 and $1,125,000. At a sentencing hearing on April 15, 1992, the district court expressed doubt that Crook was growing the large quantity of marijuana which was seized for personal use.

Crook then volunteered to have a polygraph taken on the question of personal use. The court continued the hearing so that it could consider the results of that examination. The polygraph examiner concluded that Crook was not truthful when he stated that he did not intend to sell the marijuana. At the continued sentencing hearing, however, the district court decided to accord no weight to the polygraph results on the footing that such evidence is not "sufficiently reliable."

In his allocution, Crook indicated he was trying to grow enough marijuana to last a long time. The government, in turn, proffered the testimony of a DEA agent who heard Ervin say in a postarrest interview that Crook told Ervin that he had big plans for making money with the marijuana crop. The district court declined to consider this statement.

The district court found that Crook had grown the marijuana for his personal use, and that the Sentencing Guidelines do not adequately take into consideration the fact that an individual may believe that he manufactured 751 plants for personal consumption. It based a one-level downward departure on this finding. The court also found that Crook's house did not constitute proceeds from drug sales, and that the Guidelines do not take into account that a defendant could lose his home through forfeiture. It departed another level for loss of the home, resulting in a total offense level of 26 and a guidelines range of 63-78 months. ⁴ The district court sentenced Crook to 66 months because

the quantity involved here may not justify a sentence of simply the minimum mandatory, and that I ... also [found] ... that although the drug was grown for Mr. Crook's personal use, that had he been successful, it probably would have been distributed to other people.

This timely appeal followed.

II

We review the district court's interpretation of the Sentencing Guidelines de novo. United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2954, 119 L.Ed.2d 576 (1992). Departures from the Sentencing Guidelines are reviewed under the three step approach of United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc). First, the district court must have legal authority to depart from the Guidelines. See id. at 746. Downward departures are permitted "if the court finds 'that there exists [a] ... 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)); see also United States v. Valdez-Gonzalez, 957 F.2d 643, 647 (9th Cir.1992) (citing Lira-Barraza ). Second, the factual findings on which the district court relied in departing are reviewed for clear error. See Lira-Barraza, 941 F.2d at 746-47. Third, the district court's departure must not be "unreasonable" within the meaning of 18 U.S.C. § 3742(e)(3) and (f)(2). See id. at 747. ⁵

III

The government argues that the Sentencing Guidelines do not permit civil forfeiture to serve as the basis for a downward departure because the Sentencing Commission adequately considered the possibility of forfeiture and determined that it was distinct from any other penalty. Guidelines § 5E1.4 specifically states: "Forfeiture is to be imposed upon a convicted defendant as provided by statute." Based on this reasoning, the Third Circuit recently held that a court may not rely on exposure to civil forfeiture as a ground for downward departure. See United States v. Shirk, 981 F.2d 1382, 1397 (3d Cir.1992), petition for cert. filed, 61 U.S.L.W. 3805 (U.S. May 17, 1993) (No. 92-1841). The government urges us to follow suit.

Crook, on the other hand, contends that loss of a defendant's home, and forfeiture of property which was not acquired with proceeds of illicit activity, are unusual circumstances not contemplated by the Commission. Crook also suggests that if the district court had refused to consider downward departure on these grounds, it would have erred under United States v. Sanchez, 927 F.2d 1092 (9th Cir.1991) (per curiam).

In Sanchez, the defendant had entered into a plea agreement reserving his right to argue that, based upon a forfeiture of most of his property, he provided substantial assistance to the government such that he was eligible for a reduction in his guidelines sentence. He also argued at sentencing that the district court should depart downward because the Guidelines do not adequately take civil forfeitures into account. On appeal, Sanchez argued that the district court erroneously concluded it lacked discretion to depart downward. We held that the court correctly concluded that assistance provided in a civil forfeiture proceeding is not "substantial assistance" within the meaning of § 5K1.1, but we found no indication in the record that the sentencing judge believed a downward departure under § 5K2.0 was impermissible. Id. at 1093-94. Accordingly, we had no occasion in Sanchez to reach the issue before us in this case.

We now join the Third Circuit in holding that the Guidelines do not allow for departure on account of a civil forfeiture. As the court explained in Shirk:

It is apparent from [§ 5E1.4], which has been in existence since the Guidelines' inception in November 1987, that the Commission considered forfeiture when creating the guideline ranges for terms of imprisonment.... We interpret the Guidelines' straightforward mandate that "forfeiture is to be imposed ... as provided by statute" to mean that the Commission viewed monetary forfeiture as entirely distinct from the issue of imprisonment.

981 F.2d at 1397.

We are reinforced in this view by U.S.S.G. §§ 5E1.2(d)(4) and (5), which provide that "[i]n determining the amount of [a] fine, the court shall consider ... (4) any restitution or reparation that the defendant has made or is obligated to make; [and] (5) any collateral consequences of conviction,...