U.S. v. Hazel

• Decision Date: 15 March 1991
• Docket Number: No. 90-3067,90-3067
• Citation: 928 F.2d 420
• Parties: , 59 USLW 2603 UNITED STATES of America v. Robert D. HAZEL, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 420

928 F.2d 420

289 U.S.App.D.C. 8, 59 USLW 2603

UNITED STATES of America v. Robert D. HAZEL, Appellant.

No. 90-3067.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 18, 1991.

Decided March 15, 1991.

Appeal from the United States District Court for the District of Columbia (Criminal No. CR-89-00281-01).

Michael W. Kirk, (appointed by this Court) for appellant.

Eileen F. Sheehan, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Roy W. McLeese, III, James Cowles, and Elizabeth Danello, Asst. U.S. Attys., were on the brief, for appellee.

Before MIKVA, Chief Judge, and SENTELLE and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Chief Judge MIKVA.

SENTELLE, Circuit Judge:

This appeal concerns two separate questions under the United States Sentencing Guidelines: the interplay between the career offender and criminal history provisions, and the meaning of the acceptance of responsibility guideline. Appellant was labeled a career offender under Sec. 4B1.1, but, because one of the two prior convictions could have been set aside at the time, the district court decided to depart downward on the Criminal History Category under Sec. 4A1.3, without however adjusting Mr. Hazel's career offender status. The trial judge also rejected Hazel's request for a downward departure for acceptance of responsibility under Sec. 3E1.1, pointing out that Hazel had not accepted responsibility for "all" of the criminal conduct for which he was convicted (having admitted to only one of the three charges). We affirm the sentencing order.

I. BACKGROUND

Robert D. Hazel was convicted on three separate counts: (1) possession with intent to distribute cocaine; (2) possession of a firearm in connection with a drug trafficking offense; and (3) possession of a firearm by a felon. After finding that he was a career offender and rejecting an acceptance of responsibility claim, the trial judge sentenced Hazel to 270 months in prison. Since Count 2 carries a mandatory consecutive 60-month sentence, the issue here is the propriety of the 210-month sentence for the first and third counts.

The Presentence Report had calculated Hazel's Criminal History Category as V and Base Offense Level as 30, giving a range of 151-188 months. See Table, U.S.S.G. Chap. 5. After enhancing both of these levels (to Category VI and Offense Level 34) with a career offender classification under Sec. 4B1.1 because of Hazel's two prior felonies, the report recommended a sentence of 262-327 months on the first and third counts. One of the prior felony convictions arose under the Federal Youth Corrections Act ("FYCA"), 18 U.S.C. Sec. 5005, repealed, Pub.L. 98-473 (1984), Title II, Sec. 218(a)(8). Hazel argued that, since he was entitled to have the conviction "set aside" after serving the entire sentence (the conviction was not, in fact, ever formally set aside), it should not have counted as a prior conviction under the career offender guideline. Hazel also sought a downward departure for acceptance of responsibility because he admitted to the gun possession charge.

The trial judge rejected Hazel's claim that he was not a career offender because a set-aside conviction would not qualify as an expunged conviction under Sec. 4A1.2(j), note 10. The court did, however, agree to depart downward on the Criminal History Category (from VI to IV), recognizing that the FYCA conviction overrepresented Hazel's criminal history. The trial judge took as his range 210-262 months (Category IV and Offense Level 34) and chose the lowest sentence (210 months). After sentencing Hazel, the judge remarked, "I think still if I had my discretion in this matter, I would not give you as long a sentence as I have. I find I'm compelled to by the guidelines, even departing downward, that I feel it's fully justified by the guidelines to depart downward, that I have recognized in your case."

Mr. Hazel is satisfied with the two-level reduction in the Criminal History Category, and does not challenge the career offender classification as such, but he wants the Offense Level dropped from 34 to 30 as if it had never been enhanced by the career offender classification.

II. ANALYSIS

A. Career Offender and Criminal History Guidelines

Hazel argues that the trial judge violated Sec. 4A1.3 in the way he fashioned the sentence and failed to explain adequately his reasons for imposing this sentence. According to Hazel, Sec. 4A1.3 sets forth an adjustment methodology for downward departures when a criminal history is overstated, and the District Court should have applied it as well to the career offender provision (Sec. 4B1.1). Moreover, Hazel argues, the trial judge must explain how he is applying this methodology. This second argument is related to the first; a reviewing court can review effectively a departure only if it is made aware of the justifications for that departure. See United States v. Dean, 908 F.2d 1491, 1496 (10th Cir.1990).

However, neither of Hazel's claims is reviewable by this Court. The Sentencing Guidelines allow a defendant to appeal a sentencing decision if the sentence "(1) was imposed in violation of the law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range...." 18 U.S.C. Sec. 3742(a). Thus, under Sec. 3742, a defendant may challenge either the judge's application of the guidelines or the judge's departure from the guidelines if it is an upward departure. Parallel provisions apply to government appeals, enabling the government to challenge sentences imposed in violation of the law, as a result of incorrect application of the guidelines, or departing downward from the guidelines. 18 U.S.C. Sec. 3742(b).

Accordingly, under Sec. 3742, we are able to review a trial judge's decision to depart from the guidelines, as that decision is made within the guidelines themselves. For example, in the present case, the trial judge's decision to depart is governed by Sec. 4A1.3 of the guidelines. Therefore, we may require the trial judge to articulate the reasons for the departure to enable our review of that decision within the guidelines. See United States v. Allen, 898 F.2d 203, 204-05 (D.C.Cir.1990). Moreover, we may review the judge's decision to depart (or not to depart) where it is evident that the judge misunderstood the scope of his sentencing authority under the guidelines because that, too, would be a misapplication of the guidelines. See United States v. Zine, 906 F.2d 776 (D.C.Cir.1990); United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990).

However, beyond this limited area, we are not authorized to review the departure itself. It is true that there is no "rigid or technical" line between the guidelines and policy-based departures. United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989). Nonetheless, we must account for the distinction made in Sec. 3742 between incorrect applications of the guidelines and upward departures. If a departure decision could also be characterized as an incorrect application of the guidelines, there would be no need for Sec. 3742(a)(3). See United States v. Wright, 895 F.2d 718, 721 (11th Cir.1990) ("[t]o permit a defendant to appeal a sentence which falls below the guideline range would make meaningless the specificity of section 3742(a)(3) which permits a defendant to raise on appeal the district court's upward departure from the guideline range") (emphasis in original); Franz, 886 F.2d at 978 ("if we were to interpret section 3742(a)(2) to allow appeals for departure-related decisions as incorrect applications of the guidelines, we would render section 3742(a)(3) redundant").

Therefore, if we are to give an independent effect to Sec. 3742(a)(3), we must interpret the extent of departure to be a question outside the application of the guidelines. For this reason, departure-related decisions are governed exclusively by Sec. 3742(a)(3), authorizing defendants to appeal upward departures, and Sec. 3742(b)(3), authorizing the government to appeal downward departures. ¹ Wright, 895 F.2d at 720 & n. 2; Franz, 886 F.2d at 978. This interpretation is consistent with the Sentencing Commission's vision of judicial review of sentencing decisions.

[T]he sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range. In that case, the court must specify reasons for departure. 18 U.S.C. Sec. 3553(b). If the court sentences within the guideline range, an appellate court may review the sentence to determine whether the guidelines were correctly applied. If the court departs from the guideline range, an appellate court may review the reasonableness of the departure. 18 U.S.C. Sec. 3742....

United States Sentencing Commission, Guidelines Manual, Sec. 1.1 (Nov.1990).

Moreover, this interpretation is consistent with legislative intent to establish only "a limited practice of appellate review of sentences in the Federal criminal justice system." S. Rep. No. 225, 98th Cong., 2d Sess. 149 (1983), reprinted in 1984 U.S.Code Cong. and Admin. News 3182, 3332. Indeed, Congress made this distinction for the purpose of "avoid[ing] unnecessary appeals." S. Rep. No. 225 at 154, 1984 U.S.Code Cong. & Admin. News at 3337. The Senate Report explains:

The limitations on both defendant and government appeal of sentences outside the guidelines based upon the size of the sentence imposed are further restrictions on the use of appellate review of sentences in order to avoid unnecessary appeals. Clearly, sentences at the bottom range are less likely to be abusive to defendants. The same applies to the government when sentences imposed approach the upper range of sentences recommended....