U.S. v. Dyce

• Decision Date: 30 July 1996
• Docket Number: No. 94-3171,94-3171
• Citation: 91 F.3d 1462
• Parties: , 9 Fed.Sent.R. 53 UNITED STATES of America, Appellant, v. Amrhu A. DYCE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1462

91 F.3d 1462

320 U.S.App.D.C. 1, 9 Fed.Sent.R. 53

UNITED STATES of America, Appellant, v. Amrhu A. DYCE, Appellee.

No. 94-3171.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 29, 1995.

Decided March 8, 1996.

As Amended March 8, 1996 and

July 30, 1996. ^*

Order Denying Suggestion for

Rehearing En Banc July 30, 1996.

[320 U.S.App.D.C. 3] Appeal from the United States District Court for the District of Columbia (No. 93cr00219-01).

Geoffrey Bestor, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Elizabeth Trosman, P. Kevin Carwile, and Barbara J. Valliere, Assistant United States Attorneys, Washington, DC, were on the briefs, argued the cause, for appellant.

A.J. Kramer, Federal Public Defender, with whom Leigh A. Kenny, Assistant Federal Public Defender, Washington, DC, was on the brief, argued the cause, for appellee.

Before BUCKLEY, GINSBURG, and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

The United States questions the district court's authority to reduce appellee Amrhu Dyce's sentence below the level established by the United States Sentencing Guidelines on the basis of her "extraordinary" family responsibilities and "the totality of the circumstances." Because we agree with the Government that Dyce's family responsibilities were not exceptional and that the circumstances cited by the district court did not warrant a departure from the sentence mandated by the Guidelines, we vacate the sentence and remand the case for resentencing in accordance with this opinion.

I. BACKGROUND

Dyce pled guilty to conspiracy to commit the offense of possession with intent to distribute crack cocaine, in violation of 18 U.S.C. § 371 (1994). At the taking of the plea, which was made pursuant to a plea agreement, Dyce described her role in the crime, which was essentially that of a courier or "mule." The presentence report calculated the adjusted offense level at 34. Because Dyce had accepted responsibility, however, her offense level was reduced to 32; and because she had no prior convictions, her criminal history was designated as category I. The Guidelines prescribe an imprisonment range of from 121 to 151 months for individuals having this offense level. The maximum statutory penalty for Dyce's crime, however, is 60 months; as a consequence, the Guidelines reduce the prescribed sentence to five years. See 18 U.S.C. § 371; U.S.S.G. § 5G1.1(a).

Dyce's presentence report indicated that she was an alien and the mother of two young children, and that she was expecting a third. Although unmarried, she and the father of her children lived with her mother, father, and sister, all three of whom claimed to be employed. The author of the presentence report was unable to verify Dyce's own claims of employment during the six years prior to her arrest.

Dyce filed a sentencing memorandum in which she requested that the district court depart downward from the Guidelines sentence. She offered the following grounds for the departure: (1) her family responsibilities were "extraordinary"; (2) the offense was an act of aberrant behavior; (3) the sentence imposed by the Guidelines for a crack cocaine offense has a disproportionately severe effect on black defendants; (4) because she was an alien, she would be subject to more severe prison conditions than would similarly situated U.S. citizens; and (5) the combination of the previous four factors warranted a reduction in her sentence.

Dyce had three sentencing hearings. At the first, on June 20, 1994, the district court expressed concern over separating Dyce from her children. The court dismissed the Government's suggestion that the children live with their father with the comment that "kids are always better off living with the mother." Transcript of 6/28/94 Sentencing Hearing at 11. The sentencing hearing was continued without objection from the Government because Dyce was seven months pregnant at the time.

At the resumed hearing in September 1994, the district court indicated its unwillingness to impose a sentence that would separate Dyce from her children, including her newborn. The court stated The problem you have with small children is nobody really can take care of these kids.

* * *

What are our alternatives then? Take the kids away, put the kids in a foster home, a little baby like that? Can't do that.

* * *

Well, I mean, we can't take this baby, this is ridiculous. Did you hear that? She's breast feeding the child. How can we take--we can't put her away. It's just impossible.

Transcript of 9/19/94 Sentencing Hearing at 7, 9, 14.

At the final hearing, on October 19, 1994, the court inquired whether Dyce was still breast-feeding her youngest child. When she replied that she was, the court stated: "Well, I can't take the youngster away from the mother at this stage." Transcript of 10/19/94 Sentencing Hearing at 12. The court then sentenced Dyce to five years of probation, with the condition that she serve two years in a residential treatment program, to be followed by one year in a community correctional facility or halfway house.

The court later issued an opinion setting forth the basis for its departure from the five years of imprisonment required by the Sentencing Guidelines. The court found that Dyce's case presented extraordinary family circumstances because

[t]he Defendant is a single mother with three children under the age of four years old, one of whom is three months old and is being breast fed by the Defendant. At this point in time, the infant is totally dependent on the Defendant for nourishment. While these family circumstances do not decrease the Defendant's culpability for her crime, these family circumstances nevertheless play a role in the Court's consideration on sentencing. Causing the needless suffering of young, innocent children does not promote the ends of justice.

United States v. Dyce, 874 F.Supp. 1, 1-2 (D.D.C.1994) ("Sentencing Opinion"). The court also stated that the totality of the circumstances supported a downward departure. These included Dyce's lack of a criminal record or history of substance abuse, her remorse, her full explanation of her role in the crime, the aberrational nature of her conduct, and her ability to contribute to society in a meaningful way. Id.

II. DISCUSSION

A. Standard of Review

The Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. §§ 991-98 (1995), allows district courts to depart from the sentencing levels established by 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 that should result in a sentence different from that described.

18 U.S.C. § 3553(b); see also U.S.S.G. § 5K2.0, p.s.

The Commission has instructed district courts to "treat each guideline as carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes," and to consider a departure only when the court "finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm...." U.S.S.G. Ch.1, Pt.A, intro. comment., at 4(b). As the Supreme Court has held, appellate review of sentencing departures is narrow in scope and entails two distinct inquiries:

First, was the sentence imposed either in violation of law or as a result of an incorrect application of the Guidelines? If so, a remand is required under [18 U.S.C.] § 3742(f)(1). If the court concludes that the departure is not the result of an error in interpreting the Guidelines, it should proceed to the second step: is the resulting sentence an unreasonably high or low departure from the relevant guideline range? If so, a remand is required under § 3742(f)(2).

Williams v. United States, 503 U.S. 193, 202, 112 S.Ct. 1112, 1120, 117 L.Ed.2d 341 (1992).

Anticipating Williams, we have treated the first step of the inquiry as consisting of two parts. See United States v. Jones, 948 F.2d 732, 736 (D.C.Cir.1991). First, we determine whether the district court's reasons for the departure are, as a matter of law, " 'of a kind or degree that may appropriately be relied upon to justify departure.' " Id. (quoting United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.1989)). Second, we determine whether the district court's factual findings are clearly erroneous. Id. Finally, we review the extent of a departure (step two of the Williams analysis) under a standard of reasonableness. Id.

B. Extraordinary Family Circumstances

Congress has directed the Sentencing Commission to "assure that the guidelines and policy statements ... reflect the general inappropriateness of considering the ... family ties and responsibilities ... of the defendant." 28 U.S.C. § 994(e). Pursuant to this statutory mandate, the Commission has provided that "[f]amily ties and responsibilities ... are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." U.S.S.G. § 5H1.6, p.s. The courts of appeals that have considered the issue unanimously agree that this section, by negative implication, permits departures when family circumstances are "extraordinary." See United States v. Canoy, 38 F.3d 893, 906 (7th Cir.1994), and cases cited therein.

The issue, then, is what constitutes "extraordinary" family ties and responsibilities. At the risk of stating the obvious, we note that the "extraordinary" can be defined only in relation to the "ordinary"; and at the risk of belaboring the obvious, we add that ordinary family responsibilities can be very great. Nevertheless, while

[i]t may not be unusual, for example, to find that a convicted drug offender is a single mother with family responsibilities, ... at some point, the nature...