U.S. v. Harrington

• Decision Date: 25 October 1991
• Docket Number: No. 90-3176,90-3176
• Citation: 947 F.2d 956
• Parties: , 60 USLW 2327, 4 Fed.Sent.R. 174 UNITED STATES of America, Appellant, v. Kelvin HARRINGTON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 956

947 F.2d 956

292 U.S.App.D.C. 90, 60 USLW 2327, 4

Fed.Sent.R. 174

UNITED STATES of America, Appellant, v. Kelvin HARRINGTON.

No. 90-3176.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 6, 1991.

Decided Oct. 25, 1991.

Appeal from the United States District Court for the District of Columbia (Cr. No. 89-00138-01).

Jennifer M. Anderson, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Roy W. McLeese, III, Patricia Stewart and John Cox, Asst. U.S. Attys Washington, D.C., were on the brief, for appellant.

Allan P. MacKinnon, Washington, D.C. (appointed by the Court), for appellee.

Bruce A. Baird, Washington, D.C., was on the brief, for amicus curiae.

Before EDWARDS, RUTH BADER GINSBURG and SILBERMAN, Circuit Judges.

Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG.

Concurring opinion filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge SILBERMAN.

RUTH BADER GINSBURG, Circuit Judge:

In sentencing Kelvin Harrington for narcotics offenses, the district court departed downward from the sentencing range indicated by the United States Sentencing Guidelines ("guidelines," cited as "U.S.S.G."). Harrington's potential for rehabilitation from drug addiction, the trial judge held, was a mitigating circumstance not adequately considered by the Sentencing Commission in promulgating the guidelines. See United States v. Harrington, 741 F.Supp. 968 (D.D.C.1990). The government appeals the sentence. We conclude that Harrington's post-offense rehabilitation is the type of conduct properly considered in determining whether he is eligible for a reduction in sentence under U.S.S.G. § 3E1.1 (acceptance of personal responsibility for one's criminal conduct). ¹ We therefore vacate the sentence imposed by the district court and remand for resentencing consistent with this opinion.

I. BACKGROUND

A. Review Standards

Both the Sentencing Reform Act of 1984 and the guidelines authorize judicial departure from the guidelines sentencing range if the sentencing 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 that should result in a sentence different from that described.

18 U.S.C. § 3553(b); see U.S.S.G. Ch. 1, Pt. A, 4(b) (introductory policy statement on departures); id. § 5K2.0 (policy statement on grounds for departures). In deciding whether the Sentencing Commission adequately accounted for a particular circumstance, "the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." 18 U.S.C. § 3553(b). The determination whether a particular factor is an appropriate ground for departure "involves a question of statutory interpretation" over which this court exercises "plenary review." United States v. Burns, 893 F.2d 1343, 1345 (D.C.Cir.1990), rev'd on other grounds, --- U.S. ----, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991).

Once a factor is established as "a legally permissible basis for departure," however, we accord "broad deference to the district court's judgment as to the appropriateness of considering th[e] factor, and we will uphold the departure so long as it is reasonable." Id. at 1345 (citing 18 U.S.C. § 3742(e)(4)). Fact findings underlying the sentencing court's decision to depart will not be disturbed unless clearly erroneous. Id. at 1345-46 (citing United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989)). B. Harrington's Sentence

In sentencing Harrington, the district court held that

the Guidelines and the official comment, including the Commission's rejection of addiction as a factor in sentencing [in U.S.S.G. § 5H1.4 p 2], provide no evidence of consideration of a first offender drug addict's probable success in drug treatment as a factor in sentencing and the absence of consideration of this mitigating factor constitutes a basis for departure where expert opinion and other evidence leads to a finding that successful treatment for drug addiction is likely.

Harrington, 741 F.Supp. at 976. ² The court found that Harrington "is an addict who has demonstrated that he is amenable to successful drug treatment in prison which is likely to curb any criminal propensities." Id. at 977. This determination rested on several grounds: "uncontroverted expert opinion ... that successful treatment of Harrington's addiction is likely and that future criminal activity by him is unlikely"; the corroborative conclusions regarding drug treatment of prisoners contained in Understanding Drug Treatment, an Office of National Drug Control Policy White Paper issued in June 1990; the positive evaluations of Harrington's participation in drug treatment programs during his pretrial release and post-trial incarceration; and the court's own "observations of Harrington on his several court appearances before and during the jury trial and during the sentencing proceedings." Id. at 976-77. The court consequently departed downward from Harrington's guidelines sentencing range of 97-121 months and imposed the statutory minimum prison term of 60 months, followed by four years of supervised release. Id. at 976-78.

II. DISCUSSION

Federal courts of appeals that have faced claims of post-offense drug rehabilitation as a basis for downward departure have resolved the issue under one or the other of two arguably applicable guidelines provisions, section 3E1.1 or section 5H1.4. The First and Fourth Circuits regarded evidence of successful drug treatment between arrest and sentencing as post-offense conduct within the scope of U.S.S.G. § 3E1.1, which permits a two-level reduction in offense level "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. § 3E1.1(a); ³ see United States v. Sklar 920 F.2d 107, 115-17 (1st Cir.1990); United States v. Van Dyke, 895 F.2d 984, 986-87 (4th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 112, 112 L.Ed.2d 82 (1990). A two-level reduction in Harrington's case would yield a sentencing range of 76-97 months, in contrast to the unreduced 97-121 months range, and the 60 months the district court imposed.

The Fourth Circuit in Van Dyke decided that the two-level reduction under section 3E1.1 precluded any additional downward departure. 895 F.2d at 987. ⁴ The First Circuit, however, said in Sklar that "a defendant's rehabilitation might, on rare occasion, serve as a basis for a downward departure [exceeding two levels], but only when and if the rehabilitation is 'so extraordinary as to suggest its presence to a degree not adequately taken into consideration by the acceptance of responsibility reduction.' " 920 F.2d at 116 (citation omitted). ⁵

The Third and Ninth Circuits considered post-arrest drug rehabilitation under the rubric "Specific Offender Characteristics," governed by Chapter 5, Part H of the guidelines, rather than as post-offense conduct demonstrating acceptance of responsibility under section 3E1.1. See United States v. Martin, 938 F.2d 162, 163 (9th Cir.1991); United States v. Pharr, 916 F.2d 129, 132-33 (3d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991). Both circuits interpreted section 5H1.4, see supra note 2, "to mean that dependence upon drugs, or separation from such a dependency, is not a proper basis for a downward departure from the guidelines." Id. at 133; Martin, 938 F.2d at 164 (quoting Pharr). The Ninth Circuit in Martin emphasized the Commission's recommendation that drug treatment be a required component of post-incarceration supervised release. That recommendation, the Ninth Circuit said, was a clear indication of "intent that rehabilitation from drug abuse be factored into post-sentencing supervised release and not be recognized as a ground for departure." Id. ⁶

The Third Circuit in Pharr ruled more cautiously. It considered and rejected, on the facts of the Pharr case, the application of section 3E1.1 to the particular defendant's post-offense drug rehabilitation. See Pharr, 916 F.2d at 131-32. The defendant in Pharr had entered a guilty plea to one count each of sale of stolen U.S. treasury checks and possession of stolen mail. Id. at 130. The district court departed downward from the guidelines upon finding that "Pharr had made a conscientious effort to overcome his heroin addiction" and that a jail sentence "would disrupt his drug rehabilitation treatment." Id.

Pharr's post-offense rehabilitative conduct, the Third Circuit held, was not within the ambit of section 3E1.1. Id. at 131. The appellate court reasoned that section 3E1.1 was intended to credit a defendant for "either accepting responsibility for the offense for which he is being sentenced or mitigating the effects of his criminal activity." Id. Pharr's efforts to overcome substance abuse did not manifest acceptance of responsibility "for selling stolen treasury checks," the court observed, nor was his entrance into a drug rehabilitation program an "attempt[ ] to rectify the harm he caused." Id. Rather, Pharr's drug rehabilitation attempt qualified as "[s]elf-improvement," and thus was "not the type of conduct contemplated by the acceptance of responsibility provisions of the guidelines." Id. The appeals court in Pharr regarded Van Dyke as "clearly distinguishable" on its facts "since Van Dyke's drug rehabilitation efforts were directly related to the crime for which he was being sentenced." Id. at 132. The Third Circuit expressly reserved "the issue of whether drug rehabilitation can be considered acceptance of responsibility for section 3E1.1 purposes in sentencing a defendant for a drug-related offense," and "offer[ed] no indication as to how [it] would rule if that issue were squarely before" the court. I...