U.S. v. Evans, 94-1546

• Decision Date: 03 November 1994
• Docket Number: No. 94-1546,94-1546
• Citation: 49 F.3d 109
• Parties: UNITED STATES of America v. Frank Joseph EVANS, Appellant. . Submitted Pursuant to Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 109

49 F.3d 109

UNITED STATES of America v. Frank Joseph EVANS, Appellant.

No. 94-1546.

United States Court of Appeals Third Circuit.

Submitted Pursuant to Third Circuit

LAR 34.1(a)

Nov. 3, 1994.

Decided Feb. 28, 1995.

L. Felipe Restrepo, Krasner & Restrepo, Philadelphia, PA, for appellant.

Francis C. Barbieri, Jr., Office of the U.S. Atty., Philadelphia, PA, for appellee.

Before: GREENBERG, SCIRICA and LEWIS, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Frank Joseph Evans and nine other defendants were charged in a 25-count indictment with conspiracy and drug trafficking offenses. On April 21, 1993, Evans pled guilty to conspiracy to distribute more than five kilograms of cocaine (21 U.S.C. Sec. 846 (1988)) and criminal forfeiture (21 U.S.C. Sec. 853(a)(1)-(2) (1988)). On July 8, 1993, the defendant filed a pro se motion to withdraw his guilty plea which was denied on October 15, 1993. On May 9, 1994, the defendant was sentenced to 360 months imprisonment followed by five years supervised release. He was also ordered to pay a special assessment of $50 and a fine of $1,000. We will vacate the defendant's sentence and remand to the district court for resentencing.

I.

The defendant was arrested in Houston, Texas on July 20, 1992, while operating a motor vehicle containing 36 kilograms of cocaine in a concealed compartment. He identified himself to law enforcement officers as Frank Evans and produced a Pennsylvania driver's license which confirmed this information. On at least three subsequent court appearances, including his change of plea hearing, the defendant identified himself as Frank Evans.

The defendant's true identity was first learned when he disclosed it to a probation officer after he pled guilty but before his sentencing. The government, through fingerprint comparison, confirmed the defendant was in fact Ronald Dawkins. Dawkins had a prior criminal record and was wanted as a parole absconder and fugitive in South Carolina.

At sentencing, the district court rejected the government's contention that the defendant obstructed justice by giving law enforcement officials a false name and denied the defendant's request for a downward departure based upon his disclosure of his true identity. The court then sentenced the defendant to 360 months imprisonment. ¹

II.

The district court may depart from the applicable range calculated under the United States Sentencing Guidelines where "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. Sec. 3553(b) (1988). According to the policy statement in U.S.S.G. Sec. 5K2.0, circumstances that may warrant departure are generally of two kinds: factors the Commission did not adequately consider in formulating the guidelines and factors that were considered but resulted in an inadequate guideline level because of unusual circumstances substantially in excess of the ordinary.

A discretionary decision by the trial judge that a departure is not justified is not reviewable. See United States v. Gaskill, 991 F.2d 82, 84 (3d Cir.1993); United States v. Higgins, 967 F.2d 841, 844 (3d Cir.1992). But there is appellate jurisdiction where a court refuses to depart from the guidelines because it believes it lacks the authority to do so. Gaskill, 991 F.2d at 84; Higgins, 967 F.2d at 844.

In this case, the defendant maintains that except for his voluntary disclosure, his true identity would not have been ascertained. The probation officer who prepared the presentence investigation acknowledged he would not have discovered the defendant's true identity without the disclosure: "[A]s far as I knew he had no criminal history and I would not have looked any further from that point.... [I] would never have found out who he was."

The defendant contends that his voluntary admission to the probation officer of his true identity and his prior record are circumstances of a kind or to a degree not contemplated by the sentencing guidelines. He maintains that his sentence should be vacated and the matter remanded for resentencing because the district court erroneously believed it did not have authority to depart downward from the sentencing guideline range.

The government claims the sentencing court believed it possessed the authority under Sec. 5K2.0 to depart if it found that circumstances warranted, but decided there was no basis for such a departure. Evidence of this belief, the government contends, is found in the court's order of May 3, 1994, stating in part, "it is hereby ORDERED that parties are notified that this Court is considering a reduction in the criminal history category--from category III to category I--under which Mr. Evans will be sentenced pursuant to Sec. 5K2.0 due to the unique circumstances that surrounded Mr. Evans' presentence report interview."

It is true that a substantial portion of the sentencing hearing was devoted to a discussion of the possibility of downward departure because the defendant had volunteered information that resulted in an increase in his criminal history category. During this discussion the court stated:

But secondly ... am I not entitled in measuring in some way the credit that's to be given for acceptance of responsibility or for something else, entitled to take into consideration that this man volunteered all this knowledge with these consequences, not that he had a right to withhold it, but that despite the consequences he volunteered it? And I just wonder whether that is a situation which is--was contemplated by the drafters of the guidelines.

But at the conclusion of the hearing the judge stated:

I hold that I do not have the power to apply a lesser guideline or to make a downward departure. I must say that I feel that ... a 30-year sentence is more severe than I would impose were I free to find a lesser guideline or free to depart downward. But I hold that I do not have the power.

Although the government makes a plausible argument that the court determined there was no justification for a departure, the matter is sufficiently ambiguous ("I hold that I do not have the power....") to require vacating the sentence and remanding if the defendant's actions could satisfy the requirements of U.S.S.G. Sec. 5K2.0. Cf. United States v. Mummert, 34 F.3d 201, 205 (3d Cir.1994) (vacating sentence and remanding to district court because "the record does not make clear whether the district court's denial of departure was based on legal or discretionary grounds").

III.

U.S.S.G. Sec. 5K2.0 quotes the language of 18 U.S.C. Sec. 3553(b), permitting the sentencing court to "impose a sentence outside the range established by the applicable guideline, 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.' "

To determine whether a proposed departure satisfies Sec. 5K2.0, we must first consider whether the defendant's actions could constitute a "mitigating circumstance." If so, then we must decide whether such circumstance is "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." U.S.S.G. Sec. 5K2.0 (quoting 18 U.S.C. Sec. 3553(b)).

A.

Since the adoption of the sentencing guidelines, courts have been wrestling with just what constitutes a mitigating circumstance that justifies downward departure. In United States v. Lieberman, 971 F.2d 989, 998-99 (3d Cir.1992), we permitted the district court to depart downward when a prosecutor's manipulation of an indictment foreclosed the grouping of two related offenses under the guidelines, thereby resulting in a higher sentence than usual. We allowed the departure because otherwise "it would raise the prosecutor to a position supreme over the district judge vis-a-vis sentencing by virtue of the uncontrolled charging discretion." Id. at 998. In United States v. Gaskill, 991 F.2d 82 (3d Cir.1993), we allowed a downward departure because the defendant was the sole source of care for his mentally ill wife. In so holding, we noted that "departures are an important part of the sentencing process because they offer the opportunity to ameliorate, at least in some aspects, the rigidity of the Guidelines themselves." Id. at 86. Thus, as we noted in United States v. Bierley, 922 F.2d 1061, 1067 (3d Cir.1990), "[i]f a case is atypical, or for some other reason falls outside the scope of cases considered by the Sentencing Commission, the Guidelines have fairly expansive language allowing for discretionary departure."

But in United States v. Newby, 11 F.3d 1143, 1148-49 (3d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1841, 128 L.Ed.2d 468 (1994), we held that prisoners' loss of good time credits as a disciplinary sanction for assaulting prison guards could not be considered a mitigating factor in their subsequent convictions and sentences for assaulting, impeding, and interfering with those same guards. We stated that "[t]he gravamen of a mitigating circumstance is that it somehow reduces the defendant's guilt or culpability. It is a circumstance that 'in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.' " Id. at 1148 (quoting Black's Law Dictionary 1002 (6th ed. 1990)).

The government here cites the Newby definition of "mitigating circumstance" and contends that the defendant's disclosure of his identity does not impact upon his "guilt or culpability" for the offense. But the government's reliance on Newby is misplaced. In United States v. Monaco, 23 F.3d 793 (3d Cir.1994),...