U.S. v. Godfrey, 92-8512

• Decision Date: 24 May 1994
• Docket Number: No. 92-8512,92-8512
• Citation: 22 F.3d 1048
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James C. GODFREY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1048

22 F.3d 1048

UNITED STATES of America, Plaintiff-Appellant, v. James C. GODFREY, Defendant-Appellee.

No. 92-8512.

United States Court of Appeals, Eleventh Circuit.

May 24, 1994.

John S. Davis, Asst. U.S. Atty., Atlanta, GA, for appellant.

Julian M. Treadaway, Marietta, GA, Bobby G. New, Smyrna, GA, for appellee.

Appeal from the United States District Court Northern District of Georgia.

Before TJOFLAT, Chief Judge, KRAVITCH, Circuit Judge, and RONEY, Senior Circuit Judge.

TJOFLAT, Chief Judge:

In this case, the Government appeals a sentence imposed below the guideline sentence range for possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. Sec. 5861(d) (1988). The Government contends that the downward departure was precluded because the mitigating circumstances relied upon by the district court to depart from the sentence range prescribed by the Guidelines were adequately considered by the United States Sentencing Commission in promulgating the Guidelines. We agree, and accordingly vacate the sentence and remand the case for resentencing.

I.

In May of 1991, detectives from the Cherokee County, Georgia, Sheriff's department arrested two men for the burglary of a sporting goods store. During questioning, the burglars said that they had intended to steal firearms from the store and to sell them to James C. Godfrey, who had bought stolen property from them many times over the past year. Based on the burglars' statements, the detectives obtained a search warrant for Godfrey's house.

During the search of Godfrey's residence, the detectives found numerous incriminating items, ¹ including the sawed-off shotgun at issue here. The detectives found the shotgun, which was fully functional and loaded, in Godfrey's bedroom; it was leaning against the wall near his bed. The shotgun's barrels had been shortened to eleven inches, seven inches under the statutory minimum. ²

As a result of the seizure, a federal grand jury indicted Godfrey for possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. Sec. 5861(d). Godfrey subsequently pled guilty to the charge. The presentence report set out the facts recited above and recommended an adjusted criminal offense level of sixteen ³ and a criminal history category of I, which yielded a guideline sentence range of twenty-one to twenty-seven months' imprisonment. The district court adopted, without objection, the presentence report's factual findings and recommended sentence range.

At the sentencing hearing, Godfrey asked the court to depart from the guideline sentence range and to impose a sentence of probation for the following reasons: (1) he was fifty-eight years old; (2) he had no prior criminal convictions; (3) the crime constituted a mere de minimis violation of the firearms act (because it involved only one gun); (4) he was ignorant of the firearms registration requirements; (5) he had inherited the shotgun from his father; (6) the shotgun's barrels had been shortened before he inherited it; (7) the shotgun was an antique and he kept it as a collector's item; (8) the stock of the gun was full length and the total length of the weapon, including the stock and the barrel, was longer than the statutory minimum; ⁴ and (9) he, as was evident from the nature of his conduct and the characteristics of the shotgun, did not possess the gun with the intent to use it as a concealed offensive weapon. Godfrey argued that the "promulgators of the act [did not] anticipate this sort of de minimis conduct standing alone as forming the basis for a period of incarceration of at least 21 months."

After some discussion about these proposed justifications for a downward departure, the following colloquy occurred:

THE COURT: I don't like the guidelines. I hate them. I think they are terrible, but I'm obligated to follow them, the same as you are.... You have to offer some reason to depart.

DEFENSE COUNSEL: What I offer as a reason to depart, your Honor, is the defendant's presumed status as a law-abiding, lawful citizen for fifty-eight years, as he stands before the court, with one blemish on his record, which is a violation of a registration requirement, not mala in se, mala prohibita, and a weapon which in every aspect of the law other than the barrel length, every other aspect of the firearms act, is a legal weapon.

I think these factors form the basis for the court, standing as a trier of fact rather than a member of a committee seven hundred miles north of here, to depart from these guidelines and impose a rational sentence, and I submit to the court that under these circumstances a sentence of twenty-one to twenty-seven months in confinement is not rational. A probationary sentence is rational under these circumstances.

....

THE COURT: [D]oesn't it sort of strike you [the prosecutor] as a little bit harsh to have an antique gun that doesn't violate the overall length and have to go to prison for twenty-one months because you didn't register it?

The district court concluded that this case involved mitigating circumstances of a kind and to a degree not adequately considered by the Sentencing Commission in formulating the Guidelines. The court then stated that, even if the Sentencing Commission had adequately considered the circumstances, "there exists a reason for a departure downward in light of the special and particular circumstances of this case." The court listed the following circumstances as justifications for downward departure: (1) Godfrey was charged with only one firearms violation; (2) the firearm was already modified when Godfrey acquired it; (3) Godfrey inherited the firearm from his father (instead of purchasing it in a prohibited transaction or obtaining it through some other illegal means); (4) Godfrey did not use the firearm in an unlawful manner; and (5) the nature of the firearm suggests that Godfrey did not possess it for any illegal purposes (that is, the gun's total length was longer than the statutory minimum, making it an unlikely candidate for concealment, its serial number was not altered, and it was an antique). The court concluded that:

[T]he facts of this case, when compared to the usual violation that would be presented, under the relevant offense statute provides a punishment that is extremely excessive as a deterrent. All of the circumstances taken as a whole create mitigating circumstances of a kind not adequately taken into consideration by the Sentencing Commission in formulating the guidelines....

(emphasis added).

The court, accepting the gist of Godfrey's argument, departed downward from the guideline sentence range. To determine the amount of departure, and thus the sentence to impose, the court looked to a special characteristic that formerly applied in unlawful possession of firearms cases involving sawed-off shotguns. In those cases, section 2K2.1(b)(1) of the Sentencing Guidelines allowed a reduction to offense level six for firearms, including sawed-off shotguns, that were possessed "solely for lawful sporting purposes or collection." Had this special characteristic applied in Godfrey's case, the court would have been required to reduce Godfrey's offense level to six. This special characteristic did not apply, however, because the Guidelines had been amended, see United States Sentencing Commission, Guidelines Manual, App. C, amend. 333 (Nov. 1, 1990), so the court--drawing on the inapplicable special characteristic "by analogy"--departed and lowered Godfrey's adjusted offense level to ten. Using this offense level, the court sentenced Godfrey to three months' residency in a halfway house, three months' home detention at the defendant's expense, five years' probation, a $2000 fine, and 500 hours of community service work.

We are asked by the Government to review the district court's application of the Sentencing Guidelines in granting the downward departure. In Part II, we set out the standard of review in this case. After examining in Part III each of the mitigating circumstances listed by the district court and concluding that none of them individually could have justified a downward departure from the guideline sentence range, we explain in Part IV why they cannot collectively justify a downward departure.

II.

We have jurisdiction over the Government's appeal from Godfrey's sentence pursuant to 18 U.S.C. Sec. 3742(b) (1988). "[T]he issue of whether a district court has the authority to depart downward from the applicable guideline range in a particular situation is a question of law subject to our plenary review." United States v. Costales, 5 F.3d 480, 483 (11th Cir.1993). The use of an invalid ground for departure by the district court is an incorrect application of the Guidelines. Williams v. United States, --- U.S. ----, ----, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992).

Congress, in the Sentencing Reform Act of 1984, made clear that a district court can impose a sentence outside the applicable guideline sentence range only 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...." 18 U.S.C. Sec. 3553(b) (1988). See also U.S.S.G. Sec. 5K2.0, p.s. (Nov. 1, 1993). Although the Sentencing Commission explicitly recognized that departure from the guideline sentence range would be warranted in some cases, it stated that such cases would be rare. U.S.S.G. Ch. 1. Pt. A, Sec. 4(b). Consequently, "departure is reserved for 'unusual' cases where there is something atypical about the defendant or the circumstances surrounding the commission of the crime which significantly differ from the normal or 'heartland' conduct in the commission of the crime." Gonzalez-Lopez, 911 F.2d at 549.

We follow a three-part analysis in reviewing departures from the applicable sentence range under the Sentencing Guidelines. First, we determine whether the...