U.S. v. Haynes, s. 244

• Decision Date: 03 February 1993
• Docket Number: D,23,Nos. 244,s. 244
• Citation: 985 F.2d 65
• Parties: UNITED STATES of America, Appellee, v. Ronald HAYNES, and Jahmal Rose, Defendants-Appellants. Willie Goldwire, Ronald Duran, and Natasha White, Defendants. ockets 92-1075, 92-1102.
• Court: U.S. Court of Appeals — Second Circuit

Page 65

985 F.2d 65

UNITED STATES of America, Appellee, v. Ronald HAYNES, and Jahmal Rose, Defendants-Appellants Willie Goldwire, Ronald Duran, and Natasha White, Defendants.

Nos. 244, 23, Dockets 92-1075, 92-1102.

United States Court of Appeals Second Circuit.

Argued Sept. 30, 1992.

Decided Feb. 3, 1993.

Christine E. Yaris, New York City, for defendant-appellant Ronald Haynes.

Alan G. Polak, New York City, for defendant-appellant Jahmal Rose.

Robert Feinberg, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Andrew J. Maloney, U.S. Atty., Emily Berger, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY, of counsel), for appellee U.S.

Before MESKILL, Chief Judge, and LUMBARD and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

Appellants, Ronald Haynes and Jahmal Rose, each pleaded guilty to one count of conspiracy to distribute crack cocaine. Both contend that special mitigating circumstances exist that should have resulted in a downward departure from the sentencing guildeines' range. Haynes and Rose appeal their sentences imposed on February 7 and 11, 1992 respectively in the United States District Court for the Eastern District of New York (Glasser, J.) on the grounds that the sentencing court improperly refused to grant such a downward departure.

Congress has mandated that federal judges follow the guidelines of the United States Sentencing Commission, which establishes an applicable range of punishment for a given offense. Departure from the sentencing guidelines' range is permitted only where special mitigating factors, not adequately considered by the Sentencing Commission, are present. These appellants serve as a sad reminder of the terrible toll in lost lives exacted on our nation's youth by illegal drugs, because even though they are both from good families, they were unable to resist the allure of the drug culture. Their circumstances, though unfortunate, fail to present factors that were not addressed by the guidelines.

BACKGROUND

Haynes and Rose, two African-American males in their early 20s, grew up in poor neighborhoods in the boroughs of New York City. Haynes, a high school star athlete, received a basketball scholarship from a private preparatory school in North Carolina at the age of 18. Unfortunately, after a brief stay he dropped out of this school. Returning to New York, he became romantically involved with Natasha White and later joined her in a crack cocaine distribution network. Jahmal Rose graduated from public high school in 1987 where he was an average student and pursued several odd jobs until December 1989, when he too joined the same drug distribution organization.

According to the government, both appellants occupied positions of significant authority within the 18-member drug network. They coordinated the production and distribution of crack on a large scale: the organization vended narcotics 12 hours a day, seven days a week, and earned thousands of dollars each week. Haynes allegedly often carried an Uzi submachine gun on his person, and in the area where both were arrested, police found a nine millimeter gun with a laser aiming device designed to ensure hits on targets.

In December 1990 appellants, together with two co-defendants, were charged in a two-count indictment with conspiring to distribute in excess of 50 grams of a substance containing cocaine base (or crack) and possession with intent to distribute in excess of five grams of a substance containing cocaine base in violation of 21 U.S.C. §§ 841 and 846 (1988 & Supp. III 1991). At the end of the second day of their trial Haynes and Rose entered guilty pleas to a lesser included count of conspiracy to distribute in excess of five grams of crack cocaine.

A pre-sentencing report proposed a guideline offense level of 50 for Haynes and 46 for Rose. These levels meant a life sentence in each case. Appellants objected and reached agreement with the government that resulted in lower levels: Haynes securing an offense level of 42, with a sentence range of 360 months to life; Rose obtaining a 41 level, with a sentence range of 324 to 405 months of incarceration.

On December 10, 1991 they submitted letters to Judge Glasser asking him to depart downward from the sentencing guidelines. Haynes argued that he was entitled to such departure because: 1) he was a young minority male who grew up in a poor socio-economic environment; 2) he was recruited into the drug conspiracy by Natasha White's sexual blandishments, which as a youth he was too inexperienced to resist; 3) he played a lesser role in the enterprise; and 4) prosecution in state court would have resulted in a lesser sentence. Rose contended that downward departure for him was appropriate because: 1) he had been the victim of unrelated random violence; 2) he grew up without a father, which caused deep psychological trauma; 3) he had been denied all contact with his infant daughter by the child's mother; and 4) prosecution in federal court would result in a longer sentence than he would have received in state court.

The sentencing court flatly declined to depart from the guidelines on the grounds asserted. Referring to Haynes, the district court ruled it was inappropriate for appellant to blame those around him for his personal vices, noting that "to suggest ... that the neighborhood[s] in which [he] grew up [are] responsible for what Mr. Haynes is today is in effect to condemn every person who lives in those neighborhoods[,] and the fact of the matter is ... that the overwhelming majority of persons who live in those neighborhoods are victims of the Ronald Hayneses who live in those communities." Apparently moved by Haynes' personal history, Judge Glasser nevertheless continued:

What I do feel badly about ... what really troubles me very deeply, more deeply than I am really able to express, is the fact that I don't have any discretion in this case.... [Congress has] taken it away from [judges]. The guidelines are very, very rigid and Draconian in many respects, particularly in this one. I think they're Draconian. There isn't a legitimate basis which I've been able to find to depart.

(emphasis added). With respect to Rose, the sentencing court was critical of the defendant's conduct, but stated again that were it within his discretion, "the sentence would be less than the sentence I am required to impose." In both cases, the district court imposed the minimum sentence within the guidelines' range, sentencing Haynes to 360 months (30 years) and Rose to 324 months (27 years), plus five years of supervised release and a $50 special assessment in each case.

Haynes and Rose appeal their sentences, stating the district court mistakenly believed it did not have the power to depart downward. According to appellants, the court had authority to depart from the guidelines' range based on their "youthful lack of guidance," the prosecution's choice of federal over state jurisdiction for initiation of the instant prosecution, and the discriminatory impact of the enhanced sentence for cocaine base offenses. We affirm and in the discussion that follows analyze each of the three issues raised.

DISCUSSION

Congress enacted the Sentencing Reform Act of 1984 and established a Sentencing Commission charged with promulgating sentencing guidelines in an attempt to avoid sentencing disparity of those found guilty of similar criminal conduct. See 28 U.S.C. § 991(b)(1)(B) (1988). The legislature recognized that departure from the sentencing range would still be necessary. Thus, the guidelines permit a court to depart from the normal range when "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. § 3553(b); United The Sentencing Commission enumerates specific factors a sentencing court may consider in departing, see U.S.S.G. § 5K2.1-.16, but this inventory is neither exclusive nor exhaustive and a sentencing court retains discretion to consider other factors. U.S.S.G. § 5K2.0; United States v. Lara, 905 F.2d 599, 602 (2d Cir.1990); United States v. Correa-Vargas, 860 F.2d 35, 37-39 (2d Cir.1988). On the other hand, departure has generally been precluded based on certain factors the Commission designated as "not ordinarily relevant." U.S.S.G. § 5H1.1-.6 (e.g., age, educational level, family or community ties). As a matter of policy, a departure is not supposed to be a frequent occurrence, but is to be employed only in an unusual case. See U.S.S.G., Ch. 1, Pt. A, p 4(b); United States v. Uca, 867 F.2d 783, 787 (3d Cir.1989).

States Sentencing Commission, Guidelines Manual, § 5K2.0 (Nov. 1992) (U.S.S.G.).

We have ruled that a district court's refusal to depart downwardly is not appealable unless the guidelines were misapplied, the court misapprehended its authority or imposed an illegal sentence. See United States v. Sharpsteen, 913 F.2d 59, 62-63 (2d Cir.1990). Hence, when refusal to depart downwardly rests on a sentencing court's misapprehension of its power to do so, an appeal will lie. United States v. Richardson, 923 F.2d 13, 15 (2d Cir.1991). In such a case we review de novo the legal question of whether a particular factor may be an appropriate ground for departure, see United States v. Alba, 933 F.2d 1117, 1121 (2d Cir.1991), and subject the findings of fact that establish the existence of that factor to the clearly erroneous standard of review.

A. Youthful Lack of Guidance

Haynes and Rose believe that the sentencing court incorrectly assumed that it lacked authority to depart downwardly. They maintain that it had the power to reduce their sentences below the guidelines' range based on their "youthful lack of guidance," which they note was recognized as a grounds for departure by the Ninth Circuit in United States v. Floyd, 945 F.2d 1096 (9th Cir.1991). Floyd affirmed a district court's departure from the guidelines' range of 360 months to...