U.S. v. Joan

• Decision Date: 25 August 1989
• Docket Number: No. 88-3857,88-3857
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Franklin Delano JOAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 491

883 F.2d 491

UNITED STATES of America, Plaintiff-Appellee, v. Franklin Delano JOAN, Defendant-Appellant.

No. 88-3857.

United States Court of Appeals, Sixth Circuit.

Submitted June 16, 1989.

Decided Aug. 25, 1989.

Gregory G. Lockhart, Office of the U.S. Atty., Columbus, Ohio, for plaintiff-appellee.

Steven R. Keller, Columbus, Ohio, for defendant-appellant.

Before: KEITH and WELLFORD, Circuit Judges; and GILMORE, District Judge. ^*

GILMORE, District Judge:

The issue in this case is whether the sentencing judge's upward departure from the Sentencing Guidelines was justified. We find that it was, and affirm.

I

On February 18, 1988, a Grand Jury for the Southern District of Ohio at Columbus returned a ten-count indictment against Franklin Delano Joan, Gary Cabble Willis, and Gayle Cordell. Count 1 charged the appellant with conspiracy to possess with intent to distribute marijuana; Count 2 charged possession with intent to distribute marijuana; Counts 3, 4, 5, 6 and 7 charged that, on several dates, Appellant used a telephone to facilitate the unlawful distribution of marijuana, Count 8 charged that Appellant knowingly used a firearm in relation to a drug trafficking crime; and Count 10 charged Appellant with being a felon in possession of a firearm.

On June 8, 1988, Appellant pled guilty to Counts 2, 3 and 10 of the indictment, pursuant to a written plea agreement entered into under Rule 11(e) of the Federal Rules of Criminal Procedure. ¹

A presentence investigation was completed for Appellant, which placed him at an offense level of 18 under the Sentencing Guidelines, with a criminal history category of VI. At these levels, the Sentencing Guidelines provided for a sentence between the range of 57 to 71 months.

On September 8, 1988, Appellant was sentenced to 120 months imprisonment, which was an upward departure from the Sentencing Guidelines, calculated under the Sentencing Reform Act of 1984, 18 U.S.C. Sec. 3551 et seq.

In justifying the departure, the trial court stated:

The Court finds that there exists aggravating circumstances to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. All of the guidelines have a career offender offense level that was applied to the defendant's case herein and does not raise the offense level beyond 18 ... Therefore, the defendant's criminal history is absorbed, in a sense, in the other offense level computation. Therefore, the Court feels that the criminal history category is inadequate when applied to this particular case.

Appellant argues that the sentence imposed by the trial judge was beyond his authority, and that the upward departure was not justified because the Federal Sentencing Guidelines had adequately considered and punished Appellant for aggravating factors. He claims the District Court did not base the departure upon factors present in the instant offense, but on Appellant's prior conduct, which had already resulted in an increase of the potential sentence, in view of the fact he was given a criminal history category of VI.

The Government, on the other hand, argues the departure was justified because the defendant had an ongoing criminal involvement regarding marijuana distribution that he refused to discuss with the Probation Department; that he had been stopped in 1986 travelling through a source state for marijuana distribution that he refused to discuss with the Probation Department; that he had been stopped in 1986 travelling through a source state for marijuana (Mexico) with more than $47,000 in his possession, and a small amount of marijuana; and that, as a result of the plea agreement entered into in this case, defendant avoided a potential sentence of 270 to 322 months of incarceration.

II

Title II of the Comprehensive Crime Control Act of 1984, known as the Sentencing Reform Act of 1984, P.L. No. 98-473, 98 Stat.1987, 18 U.S.C. Sec. 3551, et seq., effected a major revision of sentencing in federal courts. The text of the law and the legislative history make clear that its principal purpose was to eliminate unwarranted disparities in sentencing, both by assuring, insofar as practicable, that similarly situated individuals convicted of the same crime receive approximately the same sentence, and to assure that similar crimes are treated similarly for sentencing purposes even though they arise under different provisions of the U.S.Code.

Title 18 U.S.C. Sec. 3553(a) lists the factors to be considered by the court in imposing a sentence, and 18 U.S.C. Sec. 3553(b) provides for departure from the Guidelines.

Title 18 U.S.C. Sec. 3553(b) states, in part:

The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the 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. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.

The Sentencing Guidelines Manual further expands on when the guidelines are inappropriate:

Where the applicable guidelines, specific offense characteristics, and adjustments do take into consideration a factor listed in this part, departure from the guideline is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction.

United States Sentencing Commission Guidelines Manual, (Manual) Sec. 5K2.0 at 5.36 (rev. ed. 1988).

A guideline sentence on appeal is governed by 18 U.S.C. Sec. 3742(e), which provides:

(e) Consideration. Upon review of the record, the court of appeals shall determine whether the sentence--

3. is outside the applicable guideline range, and is unreasonable, having regard for--

(A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and

(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of Sec. 3553(c).

This Court previously has not decided the specific issue before us--the standards to be applied in making an upward departure from Sentencing Guidelines by the sentencing judge. However, the Court recently held that the Sentencing Guidelines themselves are not a violation of due process. See United States v. Allen, 873 F.2d 963 (6th Cir.1989). In Allen, the court recognized that the Act and the Guidelines "substantially circumscribe the discretion which sentencing courts formerly exercised," but that "[t]he degree to which the Act and the Guidelines fetter sentencing courts' discretion does not violate due process." 873 F.2d at 966. See also Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647; 102 L.Ed.2d 714 (1989). In his concurring opinion in Allen, Judge Merritt stated that one of the main reasons he was concurring was because the current guidelines have departure provisions that allow a broad range of discretion to the sentencing judge. Id. at 967.

In United States v. Diaz-Villafane, 874 F.2d 43 (1st Cir.1989) the court upheld a substantial departure where the defendant was sentenced to ten years imprisonment instead of the 27-33 months indicated by the guidelines. ² In Diaz-Villafane, the First Circuit provided a three-step test for reviewing sentences that depart from the guidelines:

First, we assay the circumstances relied on by the district court in determining that the case is sufficiently "unusual" to warrant departure. That review is essentially plenary: whether or not circumstances are of a kind or degree that they may appropriately be relied upon to justify departure is, we think, a question of law.

Second, we determine whether the circumstances, if conceptually proper, actually exist in the particular case. That assessment involves factfinding and the trier's determinations may be set aside only for clear error. See 18 U.S.C. Sec. 3742(d).

Third, once we have assured ourselves that the sentencing court considered circumstances appropriate to the departure equation and that those factors enjoyed adequate record support, the direction and degree of departure must, on appeal, be measured by a standard of reasonableness. 18 U.S.C. Sec. 3742(e)(2); see also U.S. v. Mejia-Orosco, 867 F.2d 216, 218 (5th Cir.1989) (distinguishing between standard of review for sentences within and without Guidelines); United States v. Sturgis, 869 F.2d 54, 56-57 (2d Cir.1989) ("scope of review on appeal is limited to deciding whether a sentence imposed outside the guideline range is 'unreasonable' "); United States v. Ryan, 866 F.2d 604, 609-10 (3d Cir.1989) (similar). In this context, reasonableness is determined with due regard for "the factors to be considered in imposing a sentence," generally, and "the reasons for the imposition of the particular sentence, as stated by the district court...." 18 U.S.C. Sec. 3742(d)(3).

This third step involves what is quintessentially a judgment call. District courts are in the front lines, sentencing flesh-and-blood defendants. The dynamics of the situation may be difficult to gauge from the antiseptic nature of a sterile paper record. Therefore, appellate review must occur with full awareness of, and respect for, the trier's superior "feel" for the case. We will not lightly disturb decisions to depart, or not, or related decisions implicating degrees of departure.

874 F.2d at 49. ³ (footnote omitted).

This court adopts the First Circuit's three-step analysis. It appears to us that it is a highly intelligent, thoughtful exposition of the basis for departure. Applying this test to the facts here, it is clear that the departure was justified.

The first step is a question of law regarding...