U.S. v. Crouse

• Decision Date: 27 May 1998
• Docket Number: No. 97-1765,97-1765
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Edward B. CROUSE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 786

145 F.3d 786

UNITED STATES of America, Plaintiff-Appellant, v. Edward B. CROUSE, Defendant-Appellee.

No. 97-1765.

United States Court of Appeals Sixth Circuit.

Argued April 7, 1998.

Decided May 27, 1998.

Brian K. Delaney (briefed), Office of the U.S. Attorney for the Western District of Michigan, Grand Rapids, MI, Jay I. Bratt (argued and briefed), Office of Consumer Litigation, U.S. Department of Justice, Washington, DC, for Plaintiff-Appellant.

David A. Dodge (argued and briefed), David A. Dodge, P.C., Grand Rapids, MI, for Defendant-Appellee.

Before: MERRITT, SILER, and CLAY, Circuit Judges.

OPINION

SILER, Circuit Judge.

The government appeals the sentence imposed on defendant, Edward B. Crouse, following his conviction for the interstate shipment and sale of adulterated orange juice in violation of the Food Drug and Cosmetic Act, 21 U.S.C. §§ 331(a) and 333(b)(recodified as § 333(a)(2) after July 22, 1988). The district court departed downward from the range mandated by the United States Sentencing Guidelines ("USSG" or "Guidelines") and imposed a sentence of 12 months of home confinement. The government argues that the extent of the departure granted by the district court was unreasonable. We agree and, for the reasons that follow, VACATE Crouse's sentence and REMAND for resentencing.

I.

The underlying facts leading to Crouse's conviction are not in dispute in this appeal and can be found in United States v. Kohlbach, 38 F.3d 832, 833-35 (6th Cir.1994).

Crouse pled guilty to causing the interstate shipment of adulterated orange juice, and the district court calculated his final offense level to be 19. ¹ Because he had no prior convictions, the Guidelines called for a sentence of 30 to 37 months' imprisonment. However, the district court granted Crouse's request for a downward departure of 13 levels to a Guideline range that would allow a sentence of home confinement in place of imprisonment. ²

The district court sentenced Crouse to 12 months of home confinement and ordered him to pay a fine of $250,000 and all costs associated with the monitoring of his home confinement. It based the departure on Crouse's record of community service, its desire to achieve proportionality in sentencing among Crouse and his co-conspirators, and the extensive adverse publicity and business losses that Crouse suffered as a result of his conviction.

The government appealed the sentence to this court, which vacated the sentence and remanded for resentencing. Kohlbach, 38 F.3d at 842. We found "that the circumstances on which the district judge relied to depart below the guidelines were not of a sufficiently unusual kind or degree that warranted a departure." Id. at 838. We specifically noted that it is not unusual for white-collar offenders to be involved in community activities and that the "guidelines already considered the nature of white-collar crime and criminals when setting the offense levels that govern this offense." Id. at 839.

On remand, Crouse attempted to introduce additional evidence of his civic contributions. However, the district court viewed itself as bound by the law of the case and refused to permit further evidence. It recognized that Crouse had already served one year of home confinement and therefore departed downward 4 levels to give him credit for that time served. The government did not object to that 4-level departure. Therefore, based on an offense level of 15, the court sentenced Crouse to 18 months' imprisonment to be followed by one year of supervised release.

On the second appeal, we noted that "the law of the case doctrine does not directly apply to resentencing" and "that sentencing issues may be revisited de novo on remand from the court of appeals." United States v. Crouse, 78 F.3d 1097, 1100 (6th Cir.1996). However, this error by the district court was harmless because "the court was basically correct when it concluded that Kohlbach meant that Crouse, specifically, would not qualify for the reduction [for community service], based on the type of evidence before the court." Id. at 1101. We therefore upheld the 18-month sentence imposed by the district court.

Crouse then appealed that decision to the United States Supreme Court. It remanded the case to this court "for further consideration in light of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)." Crouse v. United States, --- U.S. ----, 117 S.Ct. 39, 136 L.Ed.2d 3 (1996).

We then remanded the case to the district court for resentencing in light "of the various levels of discretion accorded the district court, and this court's continuing power to supervise for errors of law." United States v. Crouse, 108 F.3d 1377 (6th Cir. 1997).

On remand, the district court "resentence[d] Mr. Crouse exactly as it sentenced him on November 22, 1993, to 12 months' probation, to a fine of $250[,000], and to the terms and conditions of that probation which called for home confinement." It then found that the sentence imposed had been served.

In reaching its sentencing decision, the district court read Koon expansively in terms of the discretion that it vested in district court judges and therefore concluded "that a significant departure based upon good works ... is in fact merited." It also relied upon Crouse's exemplary behavior during the pendency of his appeals, Crouse's loss of reputation and of his business, and the goal of reaching a proportional sentence in comparison to Crouse's co-conspirators.

II.

This court reviews a district court's decision to depart downward from the Guidelines for an abuse of discretion. Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). The Court held that "a district court's decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court." Id. at 98, 116 S.Ct. at 2046 (citations omitted). "Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline." Id. This determination requires "a refined assessment of the many facts bearing on the outcome, informed by [the sentencing court's] vantage point and day-to-day experience in criminal sentencing." Id. at 98, 116 S.Ct. at 2046-47. The Court concluded that district courts have an "institutional advantage" over appellate courts in making this determination. Id. at 98, 116 S.Ct. at 2047.

However, the Court also concluded that "whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court's resolution of the point." Id. "The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions." Id. at 100, 116 S.Ct. at 2048.

After determining that the departure by the district court was not based on impermissible factors, this court reviews any sentence that is "outside the applicable guideline range" for reasonableness. 18 U.S.C. § 3742(e)(3); United States v. Barajas-Nunez, 91 F.3d 826, 834 (6th Cir.1996).

The reasonableness determination looks to the amount and extent of the departure in light of the grounds for departing. In assessing reasonableness under § 3742(f)(2), the Act directs a court of appeals to examine the factors to be considered in imposing a sentence under the Guidelines, as well as the district court's stated reasons for the imposition of the particular sentence. § 3742(e). A sentence thus can be "reasonable" even if some of the reasons given by the district court to justify the departure from the presumptive guideline range are invalid, provided that the remaining reasons are sufficient to justify the magnitude of the departure.

Williams v. United States, 503 U.S. 193, 203-04, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).

III.

A.

The government first argues that the district court relied upon some impermissible factors in making its decision to depart downward from the Guideline range. The district court relied primarily upon Crouse's charitable works as the basis for its downward departure. The government does not challenge that ground. It does, however, challenge the additional factors mentioned by the district court as support for its departure decision: Crouse's exemplary behavior during the pendency of his appeals; the damage to Crouse's reputation within the small Lansing community and to his business; and the goal of reaching a proportional sentence among the co-defendants based upon Crouse's minimal role in the conspiracy.

A district court may depart from the applicable Guideline range 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 that should result in a sentence different from that described." 18 U.S.C. § 3553(b). The Guidelines list certain factors which may never form the basis for departure. See USSG § 5H1.10 (race, sex, national origin, creed, religion, socio-economic status); § 5H1.4 (drug or alcohol dependence). However, with the exception of those factors, 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." USSG ch. 1, pt. A, intro. comment. 4(b). However, the Guidelines do provide "considerable guidance as to the factors that are apt or not apt to make a case atypical, by listing certain factors as either encouraged or discouraged bases for departure." Koon, 518 U.S. at 94, 116 S.Ct. at 2045.

Encouraged factors are those "the Commission has not been able to fully take into account in formulating precise guidelines." USSG § 5K2.0. An encouraged factor is an appropriate basis for departure only where it "is present to a degree...