U.S. v. Griess, 91-1893

• Decision Date: 22 October 1992
• Docket Number: No. 91-1893,91-1893
• Citation: 971 F.2d 1368
• Parties: UNITED STATES of America, Appellee, v. Michael R. GRIESS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1368

971 F.2d 1368

UNITED STATES of America, Appellee, v. Michael R. GRIESS, Appellant.

No. 91-1893.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 11, 1991.

Decided Aug. 11, 1992.

Rehearing and Rehearing En Banc Denied Oct. 22, 1992.

William Gerdes, Aberdeen, S.D., for appellant.

Philip Hogen, Asst. U.S. Atty., Sioux Falls, S.D., for appellee.

Before BOWMAN and BEAM, Circuit Judges, and VAN SICKLE, ^* Senior District Judge.

PER CURIAM.

In sentencing Michael R. Griess, the district court departed upward from the guidelines-specified sentence. Griess appeals, claiming that the departure was improper. We affirm.

I. BACKGROUND

In October 1989, Griess was charged with one count of making a false declaration while testifying before a grand jury, in violation of 18 U.S.C. § 1623(a), three counts of distributing marijuana, each in violation of 21 U.S.C. § 841, and one count of distributing cocaine, also in violation of 21 U.S.C. § 841. In March 1990, Griess was convicted on all counts.

Griess's presentence investigation report (PSI) calculated a sentencing range of fifteen to twenty-one months in prison. This was determined as follows. Griess's drug distribution counts were grouped as closely-related counts, with a two-point adjustment for obstruction of justice added to this sum for Griess's conduct in perjuring himself before the grand jury. The adjusted offense level for the drug distribution counts was then combined with the adjusted offense level for the count of giving a false declaration to the grand jury, for a combined adjusted offense level of fourteen. Griess was denied an adjustment for acceptance of responsibility because he continued to maintain his innocence of distribution of cocaine. Griess's offense level total thus remained at fourteen. Griess received a criminal history category of I. Although Griess had five juvenile offenses, the only offense factored into his criminal history score was one adult conviction in 1980 for driving while intoxicated (one point). The probation officer found no factors warranting departure.

At sentencing the district court departed from the guidelines-specified range and sentenced Griess to forty-two months in prison. Griess appealed, arguing that (1) the departure was not supported by adequate findings and (2) the district court erred in failing to provide notice of its intent to depart. In December 1990, we remanded Griess's case to the district court for resentencing, noting that a district court must give notice of its intent to depart upward when the departure is based on facts not contained in the PSI. United States v. Griess, 923 F.2d 860 (8th Cir.1990) (unpublished per curiam). See United States v. Sands, 908 F.2d 304, 307 (8th Cir.1990) (when court sentences defendant based on information not contained in PSI or introduced at the sentencing hearing, it must give defendant notice of and opportunity to rebut such information).

On remand, the district court provided Griess with notice of its intent to depart upward and stated that the factors on which the departure would be based were contained in the government's sentencing memorandum of February 8, 1991, and the transcript of Griess's first sentencing on May 1, 1990. From these sources, and including the transcript of Griess's resentencing on April 9, 1991, we discern the following as the district court's reasons for departing from the guidelines-specified sentence: (1) Griess knew of other people involved with illegal drugs and yet was unwilling to report the names of those people to law enforcement authorities (characterized by the district court as misprision of a felony); (2) Griess perjured himself before the grand jury and at trial and (in the eyes of the district court) suborned the perjury of his wife; (3) Griess is likely to commit more crimes; and, (4) in light of his juvenile record, Griess's criminal history was inadequately reflected in the PSI calculations. ¹ Transcript of Sentencing at 6-11 (May 1, 1990). At resentencing, the district court again sentenced Griess to forty-two months in prison.

Griess now appeals from the district court's judgment on resentencing. He argues (1) that the district court's grounds for departure are not supported by adequate findings of fact; (2) that the district court cannot consider his juvenile record; (3) that what the district court characterized as "numerous acts of perjury" was essentially one continuous act and, thus, his perjury cannot be considered as a ground for departure because the behavior had been taken into account in the PSI under the adjustment for obstruction of justice and the denial of an adjustment for acceptance of responsibility; and (4) that the extent of the district court's departure is unreasonable.

II. DISCUSSION

Our standard for reviewing the district court's decision to depart from Griess's guidelines-specified sentence is informed by the Sentencing Reform Act of 1984, a recent Supreme Court decision, and this court's own opinions. Under the 1984 Act, a defendant may file an appeal if the sentence was imposed in violation of law, as a result of an incorrect application of the guidelines, or if the district court departed. 18 U.S.C. § 3742(a) & (b); Williams v. United States, --- U.S. ----, 112 S.Ct. 1112, 1118, 117 L.Ed.2d 341 (1992). A district court may depart from a guideline-specified range only when it finds "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. § 3553(b).

When a district court departs from the guidelines-specified sentence, and the defendant appeals, we are to conduct two inquiries. First, we must determine whether the sentence was "imposed in violation of law or imposed as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. § 3742(f)(1); Williams, 112 S.Ct. at 1120. If the district court based its departure on a factor fully considered by the Sentencing Commission in establishing the guideline range or on a factor expressly rejected by the Commission as a ground for departure, this constitutes an incorrect application of the guidelines. Williams, 112 S.Ct. at 1119. In determining whether a factor was adequately taken into consideration by the Commission, we must look to the actual guidelines and the policy statements, among other sources. Id. Whether the aggravating circumstance actually exists is a question of fact, reviewed under a clearly erroneous standard, but whether the aggravating circumstance was adequately considered by the Commission is a question of law, reviewed de novo. United States v. Lang, 898 F.2d 1378, 1379-80 (8th Cir.1990). If we determine that the sentence was imposed in violation of law or as a result of an incorrect application of the Guidelines, we must remand the case for further proceedings and provide the district court with appropriate instructions. 18 U.S.C. § 3742(f)(1). If we conclude that the departure was "not the result of an error in interpreting the Guidelines," Williams, 112 S.Ct. at 1120, or "[i]f the party defending the sentence persuades [us] that the district court would have imposed the same sentence absent the erroneous factor," id. at 1121, then we proceed to the second step.

The second step is to determine whether the resulting sentence is an unreasonably high "departure from the relevant guideline range." Id. at 1120; 18 U.S.C. § 3742(f)(2). "The reasonableness determination looks to the amount and extent of the departure in light of the grounds for departing." Williams, 112 S.Ct. at 1121. In assessing reasonableness, we must

examine the factors to be considered in imposing a sentence under the Guidelines, as well as the district court's stated reasons for the imposition of the particular sentence. [18 U.S.C.] § 3742(e). A sentence thus can be "reasonable" even if some of the reasons given by the district court to justify the departure from the presumptive guideline range are invalid, provided that the remaining reasons are sufficient to justify the magnitude of the departure.

Id. If we determine that the departure was unreasonable, then, again, we must remand the case for further sentencing proceedings and provide the district court with any appropriate instructions. 18 U.S.C. § 3742(f)(2)(A). With these principles of appellate review in mind, we will consider each of the four grounds on which the district court in Griess's case based its decision to depart.

As one ground for departing, the district court referred to Griess's unwillingness to report the names and activities of other people who used and distributed drugs. The district court characterized Griess's unwillingness as a misprision of a felony. Transcript of Sentencing at 9 (May 1, 1990). The district court concluded, "I do not see anywhere in the guidelines where the Sentencing Commission [has] taken such conduct into consideration. And the Court believes that it is a factor that militates [in] favor of a departure upward." Id. at 10.

The district court is wrong in its conclusion. The Sentencing Commission did take such conduct into account in formulating the guidelines. In § 5K1.2, a policy statement, the Commission stated, "A defendant's refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor." See also Island v. United States, 946 F.2d 1335, 1339 n. 3 (8th Cir.1991). The Supreme Court explained in Williams that

[w]here ... a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of the applicable guideline. An error in interpreting such a policy statement could lead to an incorrect determination that a departure was appropriate. In that event, the resulting sentence would be one that was "imposed as a result of an incorrect application of the sentencing...