U.S. v. Faulkner
| Decision Date | 24 December 1991 |
| Docket Number | 89-10339,Nos. 89-10338,s. 89-10338 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Dean FAULKNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Candace A. Fry, Sacramento, Cal., for defendant-appellant.
Thomas J. Hopkins, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Before CHOY, Senior Circuit Judge, FLETCHER, Circuit Judge, and FITZGERALD, * Senior District Judge.
The opinion filed May 13, 1991, 934 F.2d 190 (9th Cir.1991), should be amended as follows: add a footnote at page 194, following "agreement" at the end of the first full paragraph as follows:
In United States v. Loveday, 922 F.2d 1411, 1417 (9th Cir.1991), we held that section 5K2.0 allowed upward departure on the basis of non-conviction misconduct only if the misconduct was "relevant to the act of conviction." Loveday thus set out one limit on upward departure under section 1B1.4. Although the defendant in Loveday had entered into a plea agreement, the issue subsequently decided in Castro Cervantes, of the restriction section 6B1.2(a) imposes on upward departure in the context of a plea agreement, apparently was not raised in Loveday.
With this addition, the panel as constituted in the above case has voted to deny the petition for rehearing.
The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it. Fed.R.App.P. 35(b).
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.
Faulkner appeals the district court's upward departure from the Sentencing Guidelines following his conviction on five counts of bank robbery. Faulkner argues that the district court failed to give adequate reasons for departure and for the extent of departure. We vacate and remand for resentencing.
Faulkner was indicted under 18 U.S.C. § 2113(a) on eight counts of bank robbery in two separate indictments, one for three robberies in the Eastern District of California and one for five robberies in the Northern District. The proceedings were consolidated in the Eastern District.
Faulkner performed all of his charged robberies with the aid of a toy gun. In his most lucrative heist, he stole $27,205. The charged robberies were committed between March and May of 1988. When Faulkner committed the last robbery, he was awaiting sentencing on a state charge of false imprisonment to which he had pleaded nolo contendere. After the FBI apprehended Faulkner in connection with the bank robberies, he admitted to the FBI (or at the very least provided inculpatory evidence) that he had committed five other robberies in addition to the eight for which he was eventually charged. He thus committed a total of thirteen robberies. Pursuant to a plea bargain, Faulkner pleaded guilty to five of the eight charged counts. In exchange, the government agreed to recommend dismissal of the three remaining counts and to not bring future charges on the five uncharged robberies.
Applying the Sentencing Guidelines, the district court found Faulkner's total offense level to be 22 and his criminal history category to be IV, which resulted in a 63 to 78 month sentencing range. Faulkner was sentenced to 144 months in prison. The parties dispute only the district court's decision to depart from the range; they do not dispute the court's determination of the range. Nonetheless we briefly review the determination, because to do so brings the appealed departure question into sharper relief.
At the time Faulkner was sentenced, the June 1988 version of the Guidelines was in effect. The base offense level for each robbery was 18, and depending on the amount of money taken, either one or two points were added for each robbery. U.S.S.G. § 2B3.1 (June 1988). Faulkner's most profitable robbery earned him $27,205 and an adjusted offense level of 20. Under chapter 3, section D of the Guidelines, which deals with multiple-count convictions, Faulkner was responsible for five "units" of bank robbery, which required the addition of four levels to his adjusted offense level of 20. U.S.S.G. § 3D1.4. His combined offense level was 24.
Because Faulkner readily admitted his guilt when first apprehended, he earned a two point reduction for acceptance of responsibility, resulting in an offense level of 22. U.S.S.G. § 3E1.1.
Prior to sentencing in this case, Faulkner had been convicted of robbing a shoe store, for which he was sentenced to five years in prison. This earned him three points under U.S.S.G. § 4A1.1(a). Faulkner also had been convicted of four misdemeanors, each earning him a point under U.S.S.G. § 4A1.1(c). Finally, because Faulkner was on parole when he committed the instant bank robberies, he received two additional points under U.S.S.G. § 4A1.1(e).
He thus had a total of nine criminal history points, placing him in category IV.
The presentencing report (PSR) recommended departure based on two factors: first, that Faulkner committed eight bank robberies for which no convictions were obtained; second, that had Faulkner been sentenced for the false imprisonment charge, he would have been a "career offender" under U.S.S.G. §§ 4B1.1, 4B1.2, with a criminal history category of VI and In sentencing Faulkner to 144 months, the district judge departed further than recommended in the PSR. He said, "As I understand the Guidelines law, and there isn't a lot of it yet, once I decide to depart I don't have to give ... a specific reason why I picked the particular number." He explained the basis for his upward departure as follows:
a total offense level of 32, meaning that his sentence would have been 210 to 262 months. 1 The PSR recommended an upward departure based on a five-level increase in the total offense level. The recommendation was thus to treat Faulkner as a 27-point offender with a criminal history category of IV and to sentence him to 100-125 months
The defendant committed, and admitted, thirteen bank and savings and loan robberies during the investigation on this case.... The Guidelines, in my judgment, do not capture the enormity of the defendant's crime spree.
After six robberies, the robberies become freebies, in effect, under the Guidelines, they're not counted.
Also, defendant was an unsentenced prisoner on a State crime of violence at the time I sentenced, and at the time the Probation Officer's report was prepared that I was working from. Had his sentences been included in the then pending State charges he'd have been a career criminal....
The Guidelines range would have been 210 to 262 months.
After the judge asked the prosecuting attorney to respond, the prosecutor added that the toy gun would be an additional reason for departure. The judge incorporated that reason as well.
The defense attorney objected on the grounds that the Sentencing Commission already took multiple robberies into account, that the state crime of violence (the false imprisonment) had been dismissed since the time of the PSR, 2 and that the Commission intended not to allow departures for toy guns.
The district judge gave three reasons for departure. We discuss each reason in turn.
The district judge departed upward based on the five robberies for which the government specifically agreed that Faulkner would not be charged in the future, and the three robbery counts that the government agreed to dismiss as a result of the plea bargain. In United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir.1991), we recently examined an upward departure based on a similar ground. The defendant in that case had pleaded guilty to two counts of a seven-count indictment and agreed to accept responsibility for two uncharged bank robberies in exchange for the government's promise to drop the remaining five counts. At sentencing, the district judge departed upward based in part on the fact that the defendant had committed nine robberies. We found this departure inappropriate, noting that the Guidelines provide that a district judge may accept a plea agreement if "the remaining charges adequately reflect the seriousness of the actual offense behavior." U.S.S.G. § 6B1.2(a) (policy statement). We stated that "[t]he plain implication of this section is that if the sentencing court believes that the remaining Our holding in Castro-Cervantes governs the result reached here. Faulkner pleaded guilty to five counts of robbery in exchange for the government's promise to recommend dismissal of three counts of robbery and to permanently refrain from charging him for five other robberies that he had admitted to committing. The district court accepted this plea bargain, thereby implicitly finding it fair from the court's perspective. It would be patently unfair if the court were then allowed to hold Faulkner to his part of the bargain--his plea of guilty on five counts--while simultaneously denying him the benefits promised him from the bargain by relying on the uncharged and dismissed counts in sentencing him.
charges do not adequately reflect the seriousness of the defendant's behavior, the court should not accept the plea agreement." Castro-Cervantes, at 1082. Because rejection of the plea agreement is the appropriate remedy for a plea bargain that does not adequately reflect the nature of the crimes committed, we held that departure was not permissible on this basis
To reach any other result would undermine the integrity of the plea bargaining system. The great majority of federal criminal cases are resolved by plea agreements pursuant to which the defendant pleads guilty to some counts in exchange for the...
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