U.S. v. Johns, No. 92-50697

• Decision Date: 24 September 1993
• Docket Number: No. 92-50697
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond Joseph JOHNS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1267

5 F.3d 1267

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Joseph JOHNS, Defendant-Appellant.

No. 92-50697

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 4, 1993.

Decided Sept. 24, 1993.

Guy C. Iversen, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.

Benjamin Jones, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: NOONAN, FERNANDEZ, and KLEINFELD, Circuit Judges.

FERNANDEZ, Circuit Judge:

Raymond Joseph Johns, Jr., was indicted for and pled guilty to armed bank robbery. 18 U.S.C. Sec. 2113(a) & (d). At sentencing the district judge determined that an amendment to the Sentencing Guidelines precluded her from giving Johns a downward departure based upon his asserted youthful lack of guidance. Johns claims that application of the amendment to him violated the Ex Post Facto Clause of the Constitution. See U.S. Const. art. I, Sec. 9, cl. 3. We agree. We vacate the sentence and remand for further proceedings.

BACKGROUND

There is no dispute about the historical facts that led to this prosecution. On July 3, 1992, Johns entered a branch of Security Pacific National Bank and robbed it at gunpoint--a toy gun as it turned out. There is no need to recount the details of his bungled attempt to abscond with the funds. He was soon captured. He was then indicted and pled guilty to the offense.

Johns was sentenced on November 16, 1992. He argued that the district court should give him a discretionary downward departure based upon his youthful lack of guidance. That had been a proper ground for departure at the time Johns committed the offense. See United States v. Floyd, 945 F.2d 1096, 1098-1102 (9th Cir.1991), amended, 956 F.2d 203 (9th Cir.1992), overruled on other grounds, 990 F.2d 501 (9th Cir.1993) (en banc). However, by the date of Johns' sentencing the November 1, 1992 amendments to the Guidelines had gone into effect. One of those amendments added a new section which declared that, "[l]ack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds for imposing a sentence outside the applicable guideline range." U.S.S.G. Sec. 5H1.12 (Nov.1992).

Upon the facts presented to her, the district judge indicated that there was a basis to depart for youthful lack of guidance and that she would do so, if she could. However, she determined that the amended Guidelines precluded a departure on that ground. She also determined that the addition of section 5H1.12 was a clarifying amendment as a result of which its application to Johns would not violate the Ex Post Facto Clause. Johns then appealed.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction pursuant to 18 U.S.C. Sec. 3742. "Although a district court's decision not to depart normally is not reviewable, we will review de novo a district court's legal determination that the Guidelines prevent departure if the court indicates it would otherwise have departed." United States v. Belden, 957 F.2d 671, 676 (9th Cir.) (citations omitted), cert. denied, --- U.S. ----, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992).

We review application of the Guidelines de novo. United States v. Kohl, 972 F.2d 294, 297 (9th Cir.1992). We also review the constitutional question of whether an application of the Guidelines violates the Ex Post Facto Clause de novo. United States v. Carson, 988 F.2d 80, 81 (9th Cir.1993).

DISCUSSION

In general, the district court must apply the version of the Guidelines which is in effect on the date of sentencing. United States v. Warren, 980 F.2d 1300, 1304 (9th Cir.1992). Thus, the district court properly looked to the November 1, 1992 version as an initial matter. However, if use of those Guidelines would violate the Ex Post Facto Clause, the defendant must be sentenced, instead, under the version of the Guidelines that was in effect when he committed his offense. Id. In this case, that would be the version of the Guidelines which was adopted November 1, 1991, a version which did not include section 5H1.12.

We have previously made it clear that there can be no ex post facto problem if an amendment to the Guidelines merely clarifies its existing substance as opposed to changing its substance. See, e.g., United States v. Restrepo, 903 F.2d 648, 656 (9th Cir.1990), modified on other grounds, 946 F.2d 654 (9th Cir.1991) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992). That requires us to characterize the nature of the amendment which added section 5H1.12 before we turn to the closely related but more general ex post facto analysis.

A. Clarification or Change?

It may not always be easy to determine whether an amendment clarifies or changes a guideline. We have, however, stated that an amendment to the introductory commentary which made it clear that the defendant's role in an offense was not limited to the offense of conviction was a clarifying amendment, despite some dicta to the contrary in an earlier case. United States v. Lillard, 929 F.2d 500, 502-03 (9th Cir.1991). We have reached the same conclusion regarding amendments which clarify application notes. See United States v. Lonczak, 993 F.2d 180, 182 n. 4 (9th Cir.1993). We have also given weight to the Sentencing Commission's own declaration that an amendment was intended to clarify the intent of the Guidelines. Restrepo, 903 F.2d at 656. Similarly, in United States v. Webster, 996 F.2d 209, 211 (9th Cir.1993), we pointed out that comments in our prior cases about the lack of availability of role adjustments to sole participants in offenses were no longer valid. That was because the Commission had clarified the Guidelines and the opposite was now true. Id. at 212 n. 4. In fact, we said, that clarifying amendment now made it appear that absent unusual circumstances, merely being a drug courier did not qualify a person for a downward departure, although a downward adjustment for being a minor participant might now be available. Id. at 211-12. We were careful not to decide whether other grounds for departure, expressly approved by us in an earlier case, were also affected by the clarifying amendment. Id. at 211 n. 2. Therefore, we did not consider whether elimination of those grounds could have ex post When the Commission adopted section 5H1.12 it did not say that the amendment was intended to be clarifying in nature. The government argues that the amendment was clarifying because it merely clarified the Commission's intent that youthful lack of guidance never was a proper basis for departure. In pursuit of that conclusion, the government points to a number of preexisting provisions in the section 5H1 series which discouraged the use of certain considerations. Thus, the Guidelines provided that certain considerations are not "ordinarily" relevant. Among those are: age, including youth, section 5H1.1; education and vocational skills, section 5H1.2; mental and emotional conditions, section 5H1.3; physical condition or appearance, section 5H1.4; employment record, section 5H1.5; and family and community ties, section 5H1.6. As the government sees it, section 5H1.12 is just a clarification of the penumbrae emanating from these preexisting elements.

facto effect. However, we did make reference, without approval or disapproval, to United States v. Saucedo, 950 F.2d 1508 (10th Cir.1991). There, the court decided that an amendment--even one declared to be clarifying--was a true change to the substance of the Guidelines because it overruled circuit precedent. Id. at 1514.

We think that argument must fail for two reasons. First, we were well aware of those longstanding provisions when we decided Floyd and we determined that certain of them did not preclude a departure for youthful lack of guidance. 945 F.2d at 1100-01. (Sections 5H1.2 and 5H1.6 were specifically considered.) Second, and more telling, each of those restrictions was limited by the adverb "ordinarily." Thus, in proper circumstances a departure could be founded upon those grounds. We recognized as much in Floyd, 945 F.2d at 1100 n. 3.

In fact, before the adoption of section 5H1.12 only one of the Part H sections declared that certain factors were never relevant, and that was section 5H1.10. It precluded consideration of race, sex, national origin, creed, religion, and socio-economic status. It did so based, in part, on 28 U.S.C. Sec. 994(d) which required that the Guidelines be entirely neutral in those respects. In the departure area, youthful lack of guidance now joins that limited set of prohibited considerations, but does so without a specific statutory direction. Of course, 5H1.12 does not declare youthful lack of guidance to be an improper ground for imposing a sentence within the applicable Guideline range.

We do not see how a new Guidelines section which enacts a prohibition that did not exist before can possibly be called a mere clarification. Whatever the Commission might have thought when it first beheld Floyd, it has now changed the Guidelines to eliminate the effects of that case. No matter how affecting a defendant's story of his upbringing might be, a court may not depart from the applicable Guideline range on that ground. That is a definite change to the preexisting law in this circuit.

B. Ex Post Facto Clause.

The mere fact that the Guidelines have changed will not cause their application to violate the Ex Post Facto Clause. As we recently said in Aponte v. Gomez, 993 F.2d 705, 708 (9th Cir.1993) (citations omitted):

The Ex Post Facto Clause forbids both the punishment for acts not punishable at the time the offense was committed and the imposition of an additional punishment beyond that permitted at the time of the offense. Violation of the Ex Post Facto Clause occurs where there is (1) retroactive...