U.S. v. Floyd

• Decision Date: 14 August 1991
• Docket Number: No. 89-50295,89-50305,89-50295
• Citation: 945 F.2d 1096
• Parties: , 4 Fed.Sent.R. 169 UNITED STATES of America, Plaintiff-Appellee, v. Dion FLOYD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1096

945 F.2d 1096

60 USLW 2250, 4 Fed.Sent.R. 169

UNITED STATES of America, Plaintiff-Appellee, v. Dion FLOYD, Defendant-Appellant.

No. 89-50295, 89-50305.

United States Court of Appeals Ninth Circuit.

Submitted Aug. 14, 1991 ^*.

Decided Sept. 25, 1991.

Appeal from the United States District Court for the Central District of California.

Alan T. Launspach, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Barbara A. Curry, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before NORRIS and THOMPSON, Circuit Judges, and KING, District Judge. ^**

WILLIAM A. NORRIS, Circuit Judge:

Defendant Dion Floyd appeals his conviction for conspiracy to distribute cocaine and rock cocaine. The government cross-appeals the district court's downward departure in sentencing defendant to seventeen years of imprisonment. We affirm both the conviction and the sentence.

I

In early September 1988, the Drug Enforcement Administration received information from a confidential informant that Dion Floyd was engaged in the distribution of cocaine. Subsequently, the DEA began an investigation into Floyd's drug trafficking activities.

On September 12, 1988, the confidential informant placed several recorded telephone calls to Floyd. The informant told Floyd that he was interested in purchasing cocaine. In the course of the conversations, Floyd and the informant negotiated the price and quantity of the cocaine. They also agreed that one third of the cocaine would be rock cocaine. Floyd then told the informant to call Lavada Floyd to arrange for delivery.

The informant placed a series of recorded phone calls to Lavada Floyd. In these conversations, Lavada Floyd told the informant that Dion Floyd had called her. She also indicated that she was aware of the price negotiated between Floyd and the informant. She also knew that one third of the cocaine would be rock cocaine. The next day, the informant and Lavada Floyd arranged for a meeting place and carried out the purchase.

Floyd was charged in a three-count indictment for his role in a conspiracy to distribute and to possess with the intent to distribute cocaine and rock cocaine. After waiving his right to trial by jury, Floyd was convicted on all three counts at a bench trial.

Floyd's sole contention on appeal is that the evidence at trial was insufficient to support his conviction. The standard of review for examining the sufficiency of evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original).

At the end of the trial, Floyd's attorney did not make the motion for acquittal. Under United States v. Mora, 876 F.2d 76 (9th Cir.1989), when counsel fails to object to the sufficiency of the evidence at the end of trial, this court can review this issue only for plain error. Though not insurmountable, the plain error standard is higher than the standard articulated in Jackson.

Floyd contends that it was plain error for the district court to conclude that the evidence supports a finding that he was a participant in a conspiracy to distribute cocaine. He proposes that, at best, the evidence supports a finding that he was a knowing spectator.

We disagree. The record includes the transcript of several recorded telephone conversations between Floyd and the government informant and between the informant and Lavada Floyd. By no stretch of the imagination can we characterize as plain error the district court's view that these conversations support a finding that Floyd was a member of a conspiracy to distribute cocaine.

Floyd bases his challenge to the sufficiency of the evidence primarily on the credibility of the confidential informant. He characterizes the district court's reliance on the informant's testimony as plain error. But Floyd disregards the fact that the government's case was complete without the testimony of the confidential informant. It was he, and not the government, who called the confidential informant to the stand to testify. Since we hold that the district court's finding of guilt would not constitute plain error even if the district court relied solely on the evidence presented by the government, we do not even reach the issue whether the confidential informant's testimony lacked any credibility whatsoever.

II

In the pre-sentence report, the probation officer determined that Floyd's adjusted offense level was 38 and that his criminal history category was VI. In computing the criminal history category, the probation officer took into consideration a manslaughter which Floyd committed at the age of seventeen but for which he was sentenced as an adult. The probation officer set the applicable Guidelines range at 360 months to life imprisonment. The probation officer also stated that he had not identified any information that would warrant a departure from this range.

At sentencing, the district court adopted the recommended Guidelines range of thirty years to life imprisonment. Nevertheless, the court exercised its discretion to depart downward from the Guidelines range and imposed a sentence of seventeen years imprisonment. The court reasoned as follows:

The court certainly was troubled with respect to the incident in 1979 when Mr. Floyd was 17 years of age. However, there is a basis for departure, and the court is talking in terms of lack of guidance and education, abandonment by the parents, and imprisonment of Mr. Floyd at age 17, and also with respect to the basic philosophy of the guidelines that the sentencing should be sufficient but not greater than necessary.

Government's Excerpt of Record ("GER") at 3.

In evaluating a district court's decision to depart from the presumptively applicable Guidelines range, we apply a three-part test articulated recently in United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991) (en banc). First, we determine de novo whether the district court identified a mitigating circumstance of a kind or to a degree that the Sentencing Commission did not adequately take into account when formulating the Guidelines. If the court has done so, it is legally authorized to depart so long as the circumstance is consistent with the sentencing factors prescribed by Congress in 18 U.S.C. § 3553(b) and with the Guidelines. Second, we review for clear error factual findings supporting the existence of the identified circumstance in this case. Third, we determine whether the extent of departure was "unreasonable," i.e. an abuse of discretion. Id. at 746-47.

The mitigating circumstance in this case may fairly be characterized as "youthful lack of guidance." Lack of guidance and education, abandonment by parents and imprisonment at age 17 constitute the elements of this mitigating circumstance. If the Guidelines fail to adequately take into consideration the effect that a person's youthful lack of guidance had on that person's criminality, the district court may depart downward from the applicable Guidelines range so long as such departure is not otherwise prohibited. In this case, the district court departed downward because it believed that Floyd's youthful lack of guidance had a significant effect both on his past criminality and on his commission of the present offense. Thus, the district court thought (i) that Floyd's criminal history category significantly overrepresents the actual seriousness of his past criminality; ¹ and (ii) Floyd's base offense level overrepresents the actual seriousness of his criminality in the commission of the present offense.

As an initial matter, we disagree with the government that the district court was required to specify the weight that it accorded to each element of the mitigating circumstance and determine whether each element would independently qualify as a mitigating circumstance. ² As we stated in United States v. Cook, 938 F.2d 149 (9th Cir.1991), "[t]here is no reason to be so literal-minded as to hold that a combination of factors cannot together constitute a 'mitigating circumstance.' " Id. at 153. We noted further, "Given the Sentencing Commission's acknowledgment of the 'vast range of human conduct' not encompassed by the Guidelines, a unique combination of factors may constitute the 'circumstance' that mitigates." Id. As long as the district court identifies a single mitigating circumstance, we examine the permissibility of that circumstance.

We now need to determine whether the court's reliance on this mitigating circumstance was proper. On this issue, United States v. Lawrence, 916 F.2d 553 (9th Cir.1990), provides meaningful guidance. In Lawrence, we held that a sentencing judge can depart downward from the applicable Guidelines range if the defendant's criminal history category significantly overrepresents the seriousness of his criminal history. Id. at 554-55. If the district court here had merely found that Floyd's criminal history category overrepresents the seriousness of his criminal history, we would have upheld the departure on the basis of Lawrence.

This case, however, differs from Lawrence in two important ways. First, in deciding to depart downward, the district court evoked youthful lack of guidance as the circumstance which mitigates the seriousness of Floyd's criminality in the commission of past offenses, rather than merely stating that the criminal history category overrepresents Floyd's criminality. Second the district court relied on youthful lack of guidance to mitigate the seriousness of Floyd's criminality in the commission of the present offense, in addition to mitigating the seriousness of his criminality in the commission of past offenses. Because of these additional twists, we are compelled to go beyond Lawrence.

Based on our analysis of the Sentencing Reform...