U.S. v. Harotunian, 90-1393

• Decision Date: 03 October 1990
• Docket Number: No. 90-1393,90-1393
• Citation: 920 F.2d 1040
• Parties: UNITED STATES of America, Appellee, v. Dennis HAROTUNIAN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1040

920 F.2d 1040

UNITED STATES of America, Appellee, v. Dennis HAROTUNIAN, Defendant, Appellant.

No. 90-1393.

United States Court of Appeals, First Circuit.

Heard Oct. 3, 1990.

Decided Dec. 5, 1990.

Rehearing Denied Dec. 20, 1990.

John C. McBride with whom Thomas Kerner and McBride, Wheeler & Widegren, Boston, Mass., were on brief, for defendant, appellant.

Richard E. Welch, III, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for U.S.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and ATKINS ^*, Senior District Judge.

SELYA, Circuit Judge.

On June 1, 1989, defendant-appellant Dennis Harotunian was indicted on 17 counts of transporting stolen property in interstate commerce, and as an aider and abettor. 18 U.S.C. Secs. 2314, 2. The facts pertinent to the indictment are largely uncontested. Harotunian was comptroller and administrative manager for the Aesar Group, a New Hampshire-based division of Johnson Matthey Company. An internal audit for the fiscal year ended 31 March 1989 revealed that Aesar's accounts were grotesquely out of balance. After an investigation, it was determined that beginning in 1985 Harotunian wrote and signed more than 250 unauthorized checks payable, variously, to himself, to a company he owned, or to cash. These checks, totalling over $11,000,000, were written on Aesar's account with Morgan Guaranty Trust Company in New York.

On August 15, 1989, Harotunian pled guilty to all counts. ¹ At sentencing, the district court purposed both to "depart upward ... because of the amount of money involved" and "to depart downward because of the defendant's substantial assistance [to the prosecution, after he was apprehended]." Because the upward departure was greater, the net result was the imposition of a sentence in excess of the guideline sentencing range (GSR). Harotunian appeals, contending that the district court erred in relying on the amount embezzled to justify an increase in his sentence and in failing to accord mitigating factors appropriate weight when calculating the departures.

Although we have some quarrel with the district court's terminology, we have none with its result. Because we are satisfied that the court carried out the substance of its sentencing responsibilities in an impeccable fashion, we affirm the judgment below.

I. HOW THE SENTENCE EVENTUATED

Barring any ex post facto problem, a defendant is to be punished according to the guidelines in effect at the time of sentencing. See 18 U.S.C. Sec. 3553(a)(4); United States v. Worthy, 915 F.2d 1514, 1516 n. 7 (11th Cir.1990); United States v. Adeniyi, 912 F.2d 615, 618 (2d Cir.1990); see also United States v. Wheelwright, 918 F.2d 226, 228 (1st Cir.1990) (dicta). Appellant was sentenced on February 27, 1990, approximately three months after the November 1989 amendments to the guidelines took effect. But pursuant to U.S.S.G. Sec. 2B1.1(b) (Nov.1989), appellant's base offense level (BOL) would have jumped by four extra levels (from 13 to 17) had the neoteric provisions been accorded controlling force. Because imposition of the amended guidelines would have resulted in a higher BOL, and thus raised ex post facto concerns, see United States v. Suarez, 911 F.2d 1016, 1021-22 (5th Cir.1990), the 1987 version of the guidelines, in effect at the time of the offense, was correctly utilized. ² See Miller v. Florida, 482 U.S. 423, 429-35, 107 S.Ct. 2446, 2450-54, 96 L.Ed.2d 351 (1987). Neither side contests this conclusion.

Using the 1987 version, the GSR was tabulated in the following way. The court began with a base offense level of four pursuant to U.S.S.G. Sec. 2B1.1(a); increased the BOL by 13 levels because the embezzlement involved "over $5,000,000," U.S.S.G. Sec. 2B1.1(b)(1)(N); added two more levels since the scheme required more than minimal planning, U.S.S.G. Sec. 2B1.1(b)(4); made a two level increase because defendant abused a position of trust, U.S.S.G. Sec. 3B1.3; subtracted two levels for defendant's acceptance of responsibility, U.S.S.G. Sec. 3E1.1(a); and arrived at a final adjusted offense level of 19. Neither party disputes these computations or that the GSR for counts 1-17, combined, was 30-37 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table) (offense level 19; criminal history category I).

Starting from this uncontroversial plane, both sides sought to convince the court to abandon the GSR. The government, while moving for a downward departure to reward Harotunian for his substantial assistance in tracking down other suspected criminals, U.S.S.G. Sec. 5K1.1, asked the court for a net upward departure inasmuch as Harotunian had embezzled a sum substantially in excess of the highest amount mentioned in the applicable guideline. The defendant urged a downward departure based on (1) diminished capacity resulting from a claimed gambling addiction, see U.S.S.G. Sec. 5K2.13, and (2) duress supposedly engendered by bookmakers and other nefarious characters, see U.S.S.G. Sec. 5K2.12.

The district court elected to depart in both directions at once. Although discounting completely Harotunian's arguments anent diminished capacity and duress, the court essayed a two level downward departure for cooperation with the authorities and a four level upward departure to take account of the embezzlement's magnitude. ³ Appellant was then sentenced to 46 months in prison, plus a term of supervised release. This appeal followed.

II. A DEPARTURE IS NECESSARILY SINGULAR

As a threshold matter, we reject the characterization of appellant's sentence as one embodying dual departures--a characterization employed both by the district court and by the litigants.

Under the guidelines, there are two bases upon which a district court may ground a departure. The more common involves the existence of aggravating or mitigating circumstances of a kind, or to a degree, not considered by the Sentencing Commission. See 18 U.S.C. Sec. 3553(b); U.S.S.G. Sec. 5K2.0. The other basis exists where the defendant has rendered substantial assistance to the government and the government acknowledges as much by filing a motion soliciting a downward departure. See 18 U.S.C. Sec. 3553(e); U.S.S.G. Sec. 5K1.1. In either instance, the court acquires discretion to depart, that is, it may then impose a reasonable sentence outside the GSR. See 18 U.S.C. Sec. 3553(b) (the court "shall impose" a sentence within the GSR unless circumstances exist warranting a different sentence); 18 U.S.C. Sec. 3553(e) (upon government's motion, court acquires authority "to impose" a sentence below the GSR to reward substantial assistance); see also United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990) (the decision to depart is discretionary); United States v. Diaz-Villafane, 874 F.2d 43, 52 (1st Cir.) (same), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). By definition, therefore, a departure constitutes the imposition of a sentence not within the GSR.

It follows, then, as night follows day, that the existence, direction, and degree of a departure can only be determined after sentence is pronounced. Thus, decisions to increase or decrease offense levels prior to the imposition of a sentence, or a court's assessment of countervailing considerations before passing sentence, can only be seen as interim calculations. Whether or not circumstances exist that might support departures in both directions, it is indisputable that the sentence finally imposed can only fall below, within, or above the GSR. In other words, in any given sentencing, there can be at most one departure, up or down--a phenomenon determined by the net result of all interim calculations. Hence, to describe a sentence as consisting of two departures, one up and one down, is necessarily inaccurate.

Let us be perfectly clear. The trial court can, of course, mull a myriad of factors before determining whether to depart and, if the question is reached, the departure's direction and degree. Some of the circumstances properly to be considered may well pull in opposite directions. Cf. Ocasio, 914 F.2d at 337 (in assessing extent of departure, sentencing court must take into account all known circumstances); United States v. Newsome, 894 F.2d 852, 857 (6th Cir.1990) (similar). When all is said and done, however, a "departure" occurs only if the sentence ultimately imposed is outside the GSR. And since the sentence is determinate--if it is a departure at all, the sentence will either be above the GSR (hence, an upward departure) or below the GSR (hence, a downward departure)--the departure cannot head in two directions at once.

We take some pains to make this clear because, potentially, more than semantic elegance is involved. Inasmuch as appellate rights in respect to departures are determined not by the judge's interim calculations but by the sentence actually imposed (i.e., the net product remaining after all interim calculations have been given effect), the judge's language should be sufficiently precise to mirror the reality of events. We explain briefly.

Assuming the absence of error in calculating the GSR or applying the guidelines, see 18 U.S.C. Sec. 3742, a decision to depart can only confer a right of appeal on one party. A sentence below the GSR confers a right of appeal on the government, 18 U.S.C. Sec. 3742(b)(3), while a sentence above the GSR confers a right of appeal on the defendant, 18 U.S.C. Sec. 3742(a)(3). See generally Hutchison and Yellin, Federal Sentencing Law and Practice (1989) at Sec. 9.4 ("the government may appeal a departure below, and the defendant a departure above, the applicable guideline range"). But in each case, the prime beneficiary of the departure--the government, if the sentence is higher than the GSR; the defendant, if the sentence is beneath the GSR--may not appeal. See Pighetti, 898 F.2d at 4.

This means, of course, that in a case like this one, where the sentence actually imposed was above...