U.S. v. Johnson
| Decision Date | 14 May 1992 |
| Docket Number | D,No. 914,914 |
| Citation | 964 F.2d 124 |
| Parties | , 5 Fed.Sent.R. 10 UNITED STATES of America, Appellant, v. Cynthia JOHNSON, Defendant-Appellee. ockets 91-1515(L), 91-1541. |
| Court | U.S. Court of Appeals — Second Circuit |
Peter K. Vigeland, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., and Daniel C. Richman, Ass't U.S. Attys. of counsel), for appellant.
Douglas F. Eaton, New York City, for defendant-appellee.
Before: OAKES, Chief Judge, CARDAMONE and PIERCE, Circuit Judges.
The United States Sentencing Guidelines do not require a judge to leave compassion and common sense at the door to the courtroom. The government asks us, on this appeal, to reverse a sentencing judge's exercise of downward flexibility on behalf of an infant and three young children who depend entirely upon the defendant for their upbringing. Cynthia Johnson was convicted of conspiracy, bribery, and theft of public money, in violation of 18 U.S.C. §§ 371, 201(b)(2)(B) and 641 (1988), in a judgment of the United States District Court for the Southern District of New York, Robert P. Patterson, Judge. The United States appeals the sentence, which was imposed pursuant to a thirteen-level downward departure for Johnson's family circumstances and for the nature of her offense. We affirm.
In the spring of 1989, Cheryl Purvis, a payroll clerk at the Bronx V.A. Hospital, told her co-worker Cynthia Johnson and two others about a scheme Purvis had concocted to steal money by inflating paychecks. By writing pay increases for herself and others on a standard pay adjustment form, listing the correct social security number but a fictitious name with the correct first three letters of the last name, Purvis was able to secure inflated paychecks. Johnson and the others accepted Purvis's offer to inflate their paychecks, and shortly thereafter Johnson began offering the same to other hospital employees. In return, Purvis and Johnson received fifty percent kickbacks from the employees whose paychecks they inflated. In all, fifteen employees participated in the scheme, receiving a total of approximately $89,222.
The criminal complaint against Purvis and Johnson charged them with stealing money from the government in violation of 18 U.S.C. § 641 (1988). The indictment added a charge of bribery in violation of 18 U.S.C. § 201 (1988), because the defendants' conduct, while at essence a theft, insofar as it involved the acceptance of kickbacks fitted within the statutory definition of bribery. After a jury trial, the defendants were convicted on all counts except one that had been dismissed upon consent.
Judge Patterson calculated Johnson's sentence as follows. The base offense level for the bribery counts, under U.S.S.G. § 2C1.1(a), was ten. The judge then added two levels because Johnson committed more than one bribe, id. § 2C1.1(b)(1); added five levels because the total amount of the bribes exceeded $40,000, id. §§ 2C1.1(b)(2)(A), 2F1.1(b)(1)(F); added four levels for Johnson's role as an organizer of the criminal activity, id. § 3B1.1(a); and added two levels for obstruction of justice, id. § 3C1.1. These adjustments increased the offense level by thirteen levels, from ten to twenty-three.
The court then proceeded to decrease the offense level. Because Johnson's crime, though technically classifiable as a bribery, "more closely resembl[ed] theft than bribery," the court subtracted two levels. The court deducted one more level because the proceeds of the crime were divided with Purvis. Turning to Johnson's family circumstances, Judge Patterson made the following findings:
The defendant is a single mother.... Her [institutionalized] daughter, age 21 is ... the mother of a six-year-old child who currently resides with the defendant. Also residing with the defendant in Florida is her son, Lamont, and two children aged six and five, as well as her youngest child, who is five months old. The father of this child is unemployed and resides in Queens, New York.... There are no signs of use [of] drugs or alcohol, and she apparently has no mental or emotional health problems.
Concluding that Johnson was solely responsible for the upbringing of four young children, Judge Patterson deducted ten levels. Thus, a total downward departure of thirteen levels yielded a final offense level of ten. The court sentenced Johnson to six months of home detention, followed by three years of supervised release, and restitution of $27,973.
The government would have us hold that family circumstances, taken alone, can never justify a downward departure. This position flows from a misreading of the Sentencing Guidelines, and we reject it. The government's argument relies almost entirely on a policy statement issued by the Sentencing Commission, which provides that "[f]amily ties and responsibilities ... are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." U.S.S.G. § 5H1.6, p.s. Therefore, we first examine the weight courts should give to such policy statements.
The policy statements issued by the Sentencing Commission do not fit neatly into any of the usual categories of legal authority. On the one hand, they warrant greater attention than does ordinary legislative history, because Congress specifically directed sentencing courts to consider the policy statements. By statutory mandate, "[t]he court, in determining the particular sentence to be imposed, shall consider ... any pertinent policy statement issued by the Sentencing Commission." 18 U.S.C. § 3553(a) (1988). Moreover, the policy statements are approved by the Sentencing Commission as a whole, and Congress had the policy statements before it when it approved the Guidelines and amendments thereto. See United States Sentencing Commission, Sentencing Guidelines and Policy Statements (April 13, 1987); United States Sentencing Commission, 1990 Annual Report 1, 23.
On the other hand, as many courts have noted, the policy statements cannot be viewed as equivalent to the Guidelines themselves. See, e.g., United States v. Lee, 957 F.2d 770, 772-73 (10th Cir.1992) (policy statements are "advisory"); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.) ("Whereas guidelines are binding on the courts, policy statements are merely advisory."), cert. denied, --- U.S. ----, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991). Cf. United States v. Anderson, 942 F.2d 606, 609-14 (9th Cir.1991) (en banc) ().
Congress was careful to distinguish Guidelines from policy statements. Compare 28 U.S.C. § 994(a)(1) (1988) () with 28 U.S.C. § 994(a)(2) (1988) (). As one judge explained, "Congress must have envisioned a difference between guidelines and policy statements or it would not have made the distinction." United States v. Gutierrez, 908 F.2d 349, 353 (Heaney, J., dissenting), vacated by an equally divided court, 917 F.2d 379 (8th Cir.1990) (en banc). Only the Guidelines themselves need be submitted to Congress for approval, not the Commission's policy statements. 28 U.S.C. § 994(p) (1988). When the Commission submitted its initial Sentencing Guidelines to Congress in 1987, it submitted policy statements as well, including section 5H1.6, the policy statement at issue in the present case. See United States Sentencing Commission, Sentencing Guidelines and Policy Statements 5.26 (April 13, 1987). Nevertheless, the statute required only the Guidelines to be submitted, and we consider that distinction significant as an indication of the relative weight Congress would have us accord Guidelines and policy statements. Cf. United States v. Stinson, 957 F.2d 813, 815 & n. 2 (11th Cir.1992) (per curiam) (). In sum, while policy statements should aid courts in interpreting the Guidelines, sentencing courts must take care not to give those statements undue weight.
We acknowledge that other circuits have at times relied heavily on the Sentencing Commission's commentary, see, e.g., United States v. DeCicco, 899 F.2d 1531, 1537 (7th Cir.1990); United States v. Rutter, 897 F.2d 1558, 1561 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990); United States v. Ofchinick, 877 F.2d 251, 257 (3d Cir.1989); and that the Supreme Court gave a policy statement substantial weight in Williams v. United States, --- U.S. ----, 112 S.Ct. 1112, 1119-20, 117 L.Ed.2d 341 (1992). We are nonetheless persuaded that courts must carefully distinguish between the Sentencing Guidelines and the policy statements that accompany them, and employ policy statements as interpretive guides to, not substitutes for, the Guidelines themselves.
One area where policy statements, properly used, can aid sentencing courts is in the determination whether to depart from a Guidelines sentencing range. Congress explicitly provided for sentencing departures in the Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551-3586, 28 U.S.C. § 991-998 (1988). A district court, according to the statute, may depart from the applicable guideline range if it finds a circumstance "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b) (1988). See also U.S.S.G. §§ 1A4(b), p.s., 5K2.0, p.s.; Williams, 112 S.Ct....
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