U.S. v. Goodrich
| Decision Date | 20 November 1990 |
| Docket Number | No. 89-50674,89-50674 |
| Citation | 919 F.2d 1365 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Darin Ray GOODRICH, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Nancy G. Kendall, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.
Edward P. Allard, III, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before REINHARDT and LEAVY, Circuit Judges, and KING *, District Judge.
OVERVIEW
Darin Ray Goodrich (Goodrich), appeals his sentence of twenty-four months imprisonment following a guilty plea to one count of making false declarations before the court in violation of 18 U.S.C. Sec. 1623 (1988).
We reverse the district court's decision to depart from the Sentencing Guidelines.
An indictment charged Donna Rae Goodrich, the defendant's wife, with smuggling steroids in violation of 18 U.S.C. Sec. 545 (1988). The indictment followed Donna Rae's arrest on January 4, 1988, when steroids were found in the vehicle she was driving from Mexico into the United States at the San Ysidro Port of Entry. She was convicted by a jury on September 1, 1988.
At Donna Rae's trial, the defendant testified as a witness about the events surrounding Donna Rae's arrest. After Donna Rae's conviction, a federal grand jury on November 1, 1988, returned a four count indictment against the defendant Darin Goodrich, Donna Rae Goodrich, and one other person. In the indictment, Darin Goodrich was charged with conspiracy to illegally import merchandise (steroids) in violation of 18 U.S.C. Secs. 371 and 545 (1988) (Count 1), with illegal importation of merchandise (steroids) in violation of 18 U.S.C. Secs. 2 and 545 (1988) (Count 2), and with making false declarations before the court in violation of 18 U.S.C. Sec. 1623 (Count 3). The charge of making false declarations arose out of Goodrich's testimony at the trial of Donna Rae.
On January 17, 1989, Goodrich pled guilty to count three of the indictment, making false declarations before the court in violation of 18 U.S.C. Sec. 1623, 1 in exchange for dismissal of the remaining counts against him.
A presentence report was prepared. Pursuant to the Sentencing Reform Act of 1984, the base offense level was calculated to be 12. A two point deduction for acceptance of responsibility was recommended. Thus, the total offense level was 10. The criminal history score was zero, with a criminal history category of 1. The applicable guideline range, based on a total offense level of 10 and a criminal history category of 1, was six to twelve months. The probation department recommended a sentence of twelve months, the upper end of the guideline range, based on the "serious nature of [Goodrich's] perjury testimony."
The government did not recommend an upward departure because "we are not allowed to recommend departures for any reasons other than those set forth in the book, and I can't find one to plug in here."
The court decided against the two point reduction for acceptance of responsibility under section 3E1.1 of the Sentencing Guidelines. Without it, Goodrich's applicable guideline range was ten to sixteen months. The court chose to upwardly depart and sentenced Goodrich to prison for twenty-four months.
At the original sentencing on February 27, 1989, the court failed to advise Goodrich Goodrich timely appealed. He argues that the two-year sentence imposed for his false declarations was an unreasonable departure from the applicable guideline range. He contends his fifth amendment rights were violated when the court conditioned reduction of his sentence for acceptance of responsibility upon his making self-incriminating statements with respect to the counts that were dismissed. Finally, he argues that the court imposed disparate sentences upon himself and his wife in violation of 18 U.S.C. Sec. 3553(a)(6).
of his right to appeal under Federal Rule of Criminal Procedure 32(a)(2). The federal public defender moved to vacate the sentence, requesting resentencing with advice on the right to appeal and a sentence consistent with the Sentencing Guidelines. The sentence of February 27, 1989, was vacated and on October 30, 1989, Goodrich was resentenced to twenty-four months imprisonment.
A court may depart from the prescribed sentencing range if it 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." 18 U.S.C. Sec. 3553(b); United States v. Sanchez Solis, 882 F.2d 693, 698 (2nd Cir.1989). When reviewing a departure from the Sentencing Guidelines, we must first determine whether the departure is permissible, and then whether the departure imposed is unreasonable. States v. Michel, 876 F.2d 784, 786 (9th Cir.1989). "Reasonableness" is reviewed under the abuse of discretion standard. United States v. Lira-Barraza, 897 F.2d 981, 986 (9th Cir.1990), reh'g granted, en banc, 909 F.2d 1370 (1990). Findings of fact that underlie a sentencing determination are reviewed for clear error. United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989).
Under Lira-Barraza, we review departures from the Sentencing Guidelines according to a five-step process: (1) whether the district judge adequately identified the "aggravating or mitigating circumstance ...;" (2) whether the identified circumstance actually existed; (3) whether the circumstance was adequately taken into consideration by the Sentencing Commission; (4) if not, whether the circumstance should result in departure; and (5) whether the extent or degree of departure was unreasonable. Lira-Barraza, 897 F.2d at 983-86. De novo review applies to the first and third steps; the second step is examined for clear error; and steps four and five are reviewed for an abuse of discretion. Id. at 983-86; accord United States v. Pearson, 911 F.2d 186 (9th Cir.1990).
At Goodrich's resentencing on October 30, 1989, 2 the court clearly identified what it felt were extensive false declarations as the aggravating factor relied on to depart upward:
I think it clearly has been established that the extent of his perjury, the aggravating factor[,] clearly allows the court, under 5K2 to depart upward.
I have here a transcript of the testimony, some 70 pages that Mr. Goodrich testified to in this court on behalf of his wife, and he wasn't even on trial, he was a witness for his wife, and the false declarations that he brought forth in this trial as a witness, not as a defendant, before the jury is, in my judgment, substantially in excess of that which is involved in the average perjury conviction and his degree of responsibility is much greater than, I believe than the Sentencing Commission intended.
I don't think there is any question but what a two-year sentence is appropriate and, therefore, I am departing, I intend to depart as I did before. And if there is any question about it, I intend to have the transcript of the testimony of Mr. Goodrich, along with the presentence report in which he makes his statement, attached and made part of the ruling of this court for the purposes of any appeal.
....
Mr. Goodrich, it's one thing to subvert the system by committing crimes against society, whether we agree or disagree with the crimes. It's another thing to cover up the crimes that you've committed. And it is a third thing to subvert justice the way you did by attempting to secure a jury verdict for your wife on perjury testimony. What I think these guidelines establishes [sic] is that when there is a false statement made, a perjurious statement made, that the guidelines fail. Seventy pages worth had to be more than 100 of these one-statement lies.
The court cannot and will not condone that sort of activity, and I'm sure that the Sentencing Commission will understand the position that I've taken, and I'm reasonably sure they had no intention of placing a six-to twelve-month, or a ten-to sixteen-month sentence on a person who perjures himself on the witness stand to the extent that you did.
....
I go back to the same thing I said before. I think what the Sentencing Commission had in mind is a false statement made to the court, I think that's what the statute says, and this was much, much [more] than that, it was far in excess of, I think, what the Sentencing Commission had in mind.
Goodrich's false declarations are well-documented in the record before us. However, we must disagree with the district court's finding that "more than 100 of these one-statement lies" contained in seventy pages of testimony is an aggravating or mitigating circumstance to a charge of making false declarations. The essential conduct that constitutes the making of a false material declaration is ordinarily the same regardless of the number of questions and answers it takes to elicit the tale, where a defendant or a witness tells a false story to exonerate himself or another. Also, it is well-settled law that more than one specification of falsity may be included in a single count of perjury, as was done here. See, e.g., Vitello v. United States, 425 F.2d 416, 418 (9th Cir.), cert. denied, 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 50 (1970). This does not make that count duplicative; that is, charging more than one distinct and separate offense. United States v. Isaacs, 493 F.2d 1124, 1154-55 (7th Cir.1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974). It follows that a court should not consider the fact that a number of false statements have been charged in a single count as a ground for an upward departure.
The district court's finding that these false declarations were somehow extraordinary is clearly erroneous. We reverse.
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