U.S.A. v. Dewire

• Citation: 271 F.3d 333
• Decision Date: 05 October 2001
• Docket Number: No. 01-1257,01-1257
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. CHARLES DEWIRE, Defendant, Appellant. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 333

271 F.3d 333 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. CHARLES DEWIRE, Defendant, Appellant.

No. 01-1257

United States Court of Appeals For the First Circuit

Heard Oct. 5, 2001

Decided November 16, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

[Copyrighted Material Omitted] Matthew H. Feinberg with whom Matthew A. Kamholtz and Feinbert & Kamholtz were on brief for appellant.

James F. Lang, Assistant United States Attorney, with whom James B. Farmer, United States Attorney, was on brief for appellee.

Before Torruella and Lipez, Circuit Judges, and Stearns^*, District Judge.

STEARNS, District Judge.

Defendant-appellant Charles Dewire pled guilty to using a means of interstate commerce to induce a minor to engage in a sexual act, in violation of 18 U.S.C. § 2422(b). Dewire thereafter moved for a downward departure on grounds of aberrant behavior. The district court refused to depart and imposed a sentence of one year and a day, the minimum authorized by the Sentencing Guidelines. Dewire appeals, arguing: (1) that the district court's refusal to depart was based on an erroneous factual finding that he had downloaded child pornography from the Internet; and (2) that the district court abused its discretion by denying a continuance to permit him to gather evidence to show that he had not solicited the pornographic images that had been mailed to his Internet account. We hold that the denial of a motion for a departure based on an alleged mistake of fact does not present an appealable issue. Accordingly, we lack jurisdiction to hear this appeal, and we therefore affirm the district court.

I. BACKGROUND

Using America Online ("AOL") Instant Messenger,¹ Dewire engaged in a sexually explicit conversation with an individual whom he believed to be a twelve year-old girl. Toward the end of the conversation, he arranged to meet the girl the following afternoon at a local restaurant. In reality, the "girl" was an adult swim team coach, working on the family computer while visiting the girl's home. The coach printed the exchange with Dewire and turned it over to law enforcement authorities. Dewire was observed the next day entering and leaving the restaurant. Confronted later at his home by FBI agents, Dewire confessed.

After his indictment, Dewire filed a motion to dismiss. With its opposition to the motion, the government submitted a sealed exhibit containing images of children in graphic sexual poses, in many cases with adults. These images had been sent as e-mail attachments on three occasions between 1996 and 1998 to screen names listed to Dewire's AOL account. The district court denied Dewire's motion to dismiss, and the guilty plea followed. The Sentencing Guidelines, after an adjustment for acceptance of responsibility, prescribed a Category I offense level of 13, with a resulting sentencing range of twelve to eighteen months. Dewire moved for a downward departure claiming aberrant behavior. See United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996).² The government did not oppose the departure and joined Dewire in recommending that the district court impose a probationary sentence of five years with conditions.

At the sentencing hearing, Judge Wolf expressed concern about the instances of child pornography being sent to Dewire's e-mail account. He asked, "[w]eren't all of those events or some of those events possibly a crime?" He further questioned whether Dewire had been fully candid with his doctors about his previous involvement with child pornography. He also inquired whether, given the prior receipt of pornographic images of children, Dewire's conduct could fairly be characterized as aberrant. "I wonder whether this is properly a single act of aberrant behavior . . . . [I]f he committed, even though he was not convicted or even charged with, other crimes, I wonder if I could fairly and properly call this a single act of aberrant behavior." Commenting further, Judge Wolf said,

I am not persuaded that the crime here was a single act of aberrant behavior. The defendant received child pornography from the Internet on at least three occasions from 1996 to 1998. . . .

He downloaded these materials himself at least one time. Then he said he didn't recall, when he was initially interviewed by the FBI, downloading the others. Knowing receipt of such materials is a crime but not part of this offense.

In response to Judge Wolf's comments, Dewire's counsel moved for a continuance for the stated purpose of exploring the possibility that Dewire had received the images as unsolicited e-mail attachments. Judge Wolf denied the motion to continue and imposed a committed sentence of one year and one day, to be followed by three years of supervised release.

In denying the continuance, Judge Wolf stated that despite his concerns about the images and Dewire's apparent lack of candor, these were not determinative factors in his sentencing decision. "In my estimation, the only question was what were the circumstances of the downloading. And I think . . . while that is relevant, it is not what is at the heart of this matter." Judge Wolf further stated that were the images the "sole" or "dominant" factor in his decision, he would have granted a continuance to "clarify the record." "[I]f this, in my estimation, were pivotal, decisive, I might have allowed the request but not in these circumstances." In explaining his sentence, Judge Wolf stated that,

perhaps decisively, in this instance, the nature and seriousness of the offense does not justify a sentence of probation, even if this were an isolated aberrant act.

. . . . . . .

And I find in this case it is appropriate in part to deter others who might be tempted to use the Internet to pray [sic] upon children and to recognize the seriousness of the offense.

Following the hearing, Dewire moved to stay the sentence pending appeal. At the hearing on the stay motion, Judge Wolf commented again on his reasons for denying a downward departure, explaining "while there was a lot of discussion about the images, they were not material to the outcome of the case." He repeated his observation that even if Dewire's conduct had been aberrant, he did not believe that a departure was warranted because of the extremely serious nature of the offense. He added that a continuance "would not have been useful" because he "would have given the same sentence anyway." He did, however, grant the stay.

II. DISCUSSION

The issue that we are asked to decide is whether a district court's refusal to depart is appealable when it is based on an allegedly erroneous mistake of fact.³ We answer the question "no" on the basis of well-established precedent in this Circuit.

Where a refusal to depart is appealable, a trial court's decision is reviewed against an abuse of discretion standard. See Koon v. United States, 518 U.S. 81, 99 (1996). As a rule, a district court's denial of a departure is discretionary and not appealable. See, e.g., United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994); see also United States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991). This rule, however, has three exceptions. The denial of a motion to depart is appealable where: (1) the refusal to depart involves an incorrect application of the Sentencing Guidelines, see United States v. Saldana, 109 F.3d 100, 102 (1st Cir. 1997) (citing 18 U.S.C. § 3742(a)); (2) the refusal to depart otherwise violates the law, see United States v. Lauzon, 938 F.2d 326, 330 (1st Cir. 1991); or (3) the district court mistakenly believed that it lacked the discretion to depart, see United States v. Snyder, 235 F.3d 42, 51 (1st Cir. 2000); see also United States v. Rizzo, 121 F.3d 794, 798 (1st Cir. 1997). Today, we reaffirm the rule and its three exceptions.

To be sure, this Court has never squarely addressed the issue before us.⁴ In Pierro, however, while acknowledging a degree of confusion regarding the application of the rule and its exceptions, we were emphatic that in the context of departures, the touchstone of appealability is a mistake of law. As we explained,

[i]f the judge sets differential factfinding and evaluative judgments to one side, and says, in effect, "this circumstance of which you speak, even if it exists, does not constitute a legally sufficient basis for departure," then the correctness of that quintessentially legal determination may be tested on appeal. But if the judge says, in effect, either that "this circumstance of which you speak has not been shown to exist in this case," or, alternatively, that "while this circumstance of which you speak might exist and might constitute a legally cognizable basis for a departure in a theoretical sense, it does not render this particular case sufficiently unusual to warrant departing," then, in either such event, no appeal lies.

32 F.3d 619.

Since Pierro, we have consistently adhered to the position that "a refusal to depart is unreviewable unless the district court based [its decision] on an error of law." United States v. Santos, 131 F.3d 16, 21 (1st Cir. 1997) (holding that we had no authority to review the district court's determination that a defendant's mental illness neither diminished his capacity to understand what he was doing nor contributed to his making of a threat to kill the President); see also Saldana, 109 F.3d at 102 ("[T]he defendant may not appeal from a sentence within the guideline range if there was no legal error and the only claim is that the district court acted unreasonably in declining to depart"). Indeed, we have steadfastly refused to review denials of downward departures where the district court did not misunderstand its legal authority to depart. See United States v. Teeter, 257 F.3d 14, 30 (1st Cir. 2001) (holding that this Court would not entertain an appeal of a denial of a departure unless it had a reason to believe that the trial court...