U.S. v. Jones

• Decision Date: 02 March 1994
• Docket Number: 93-5370 and 93-5371,93-5347,Nos. 93-5320,s. 93-5320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darla Denean JONES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dwight Rolland SHELTON, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Melvin PENN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jacqueline Jones PENN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1145

18 F.3d 1145

UNITED STATES of America, Plaintiff-Appellee, v. Darla Denean JONES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Dwight Rolland SHELTON, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles Melvin PENN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jacqueline Jones PENN, Defendant-Appellant.

Nos. 93-5320, 93-5347, 93-5370 and 93-5371.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 10, 1993.

Decided March 2, 1994.

ARGUED: Jane Moran, Williamson, West Virginia, for appellants. Victoria Boros Major, Assistant United States Attorney, Charleston, West Virginia, for appellee. ON BRIEF: Philip M. LaCaria, LaCaria & Hassan, Welch, West Virginia, for appellant Jones; Jane Charnock, Charnock & Charnock, Charleston, West Virginia, for appellant Jacqueline Penn; Kelly K. Kemp, Zeigler, Gunnoe & Kemp, Hinton, West Virginia, for appellant Shelton. Charles T. Miller, United States Attorney, Charleston, West Virginia, for appellee.

Before RUSSELL and HALL, Circuit Judges, and KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

OPINION

DONALD RUSSELL, Circuit Judge:

Appellants Darla Denean Jones ("Jones"), Dwight Rolland Shelton, Jr. ("Shelton"), Jacqueline Jones Penn ("J. Penn") and Charles Melvin Penn ("C. Penn") entered into plea bargains whereunder they agreed to plead guilty to one count of an indictment and to provide aid to the government in apprehending a Maryland drug-kingpin. In return, the government agreed to dismiss the remaining counts against each in the indictment. Appellants appeal the sentences imposed following their guilty pleas. We affirm.

I.

On July 2, 1992, a grand jury indicted numerous defendants, including the appellants, with 57 counts of illegal possession of food stamps, and substantive and conspiratorial violations of the racketeering laws and narcotics laws. Specifically, appellants were charged with involvement in the operation of a crack-cocaine base enterprise which distributed the majority of its crack in West Virginia. The enterprise was led by David Alan Thompson, who, though named in the indictment, remains a fugitive. Thompson would obtain crack outside of West Virginia and would transport it in-state through a network of co-conspirators. Law enforcement agents purchased 81 grams of crack during 29 controlled transactions with the conspirators.

Appellants Shelton, J. Penn, C. Penn and Jones played key roles in the drug conspiracy. The residence of J. Penn and C. Penn, husband and wife, in Minden, West Virginia, was the central distribution point for the enterprise. J. Penn stored money and food coupons, profits from drug sales, at the residence until these proceeds could be transferred to Thompson. The Penns also engaged in direct distribution of crack, often to undercover agents, for money and food stamps.

Jones, J. Penn's daughter by a man other than C. Penn, shared with another conspirator the responsibility for coordinating the transfer of large quantities of crack from the Penn home for further distribution. Shelton was involved with the conspiracy's crack distribution operations in Beckley, West Virginia, and obtained and sold crack for the conspiracy.

Following their arrests, all the appellants were arraigned and released on bond. Subsequently, all appellants agreed to plead guilty to Count 2 of the indictment in return for the government's agreement to dismiss the remainder of the charges against the appellants.

In April of 1993, the district court sentenced Jones to 70 months imprisonment, a $3,000 fine and 3 years supervised release, both C. Penn and J. Penn to 87 months imprisonment and 2 years supervised release, and Shelton to 108 months imprisonment, a $5,000 fine and 3 years supervised release. Appellants appeal their sentences on various grounds.

II.

At his sentencing hearing, C. Penn presented a physician's report stating that C. Penn, 61 years of age, suffers from numerous physical ailments. C. Penn sought a downward departure pursuant to U.S.S.G. Secs. 5H1.1 and 5H1.4 on the ground of age and infirmity. U.S.S.G. Sec. 5H1.1 provides, in pertinent part:

Age (including youth) is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. Age may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration....

U.S.S.G. Sec. 5H1.4 provides, in pertinent part:

Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.

The district court rejected C. Penn's request, stating:

The Court acknowledges that this defendant does have some medical problems and I'm sure that they are medical problems that are significant to the defendant.

I am compelled, as counsel knows, to comply with the guidelines and the guideline definitions. And based on those definitions, I cannot reach the conclusion that Mr. Penn's condition constitutes extraordinary physical impairment as that term is defined by the Guidelines.

Therefore, the Court finds no reason to depart from the sentence called for by the application of the Guidelines inasmuch as the facts are of the kind contemplated by the Sentencing Commission.

J.A. 324. The judge sentenced C. Penn to as minimal a sentence as otherwise allowable under the Guidelines.

C. Penn raises two arguments. First, he argues that the district court erred, on the merits, in determining that his age and health were not so extraordinary as to entitle him to a downward departure. Second, he argues that the Sentencing Guidelines do not adequately allow the district judge to consider age and health.

A.

C. Penn's first argument is not cognizable on appeal. In United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 498 U.S. 819, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990), Bayerle argued that the district court erred in denying him a downward departure based upon a claimed diminished capacity pursuant to U.S.S.G. Sec. 5K2.13. Based upon an analysis of 18 U.S.C. Sec. 3742, which enunciates the specific circumstances under which a criminal defendant may appeal a sentence, we concluded that the section does not allow a defendant to appeal a refusal to depart downward, except where the district court's refusal is based upon the mistaken view that it lacked the authority to depart. Id. at 30-31. Because the district court in Bayerle was aware that it had the authority to depart, but concluded, based upon the evidence presented, that a departure was not warranted, we did not review the district court's decision on its merits. Id. at 31.

Here, it is clear that the district judge was aware that she could grant a departure under appropriate circumstances, but concluded that C. Penn's age and health problems were not extraordinary enough to warrant such action. Consequently, we will not review the district court's decision.

C. Penn relies upon language in United States v. Deigert, 916 F.2d 916, 919 (4th Cir.1990), in urging that we can and should review the district court's decision. In Deigert, we were faced with two appellants' challenges to their sentences. One appellant challenged the district court's refusal to grant a downward departure pursuant to U.S.S.G. Sec. 4A1.3, based upon the argument that the appellant's two prior convictions for alcohol-related traffic offenses caused a significant overstatement of the seriousness of the appellant's criminal history. We followed Bayerle and refused to review the district court's decision.

The other appellant challenged the district court's refusal to grant him a downward departure on the ground that he had a tragic personal background. We remanded the case so that the district court could reconsider if it had mistakenly understood that such a departure was precluded by law. Clearly, on remand, if the district court had been aware that it could have granted such a departure, but felt that a departure was inappropriate, its previous decision would stand. Nevertheless, in the discussion of the second appellant's appeal, we offered the following explanatory language:

Sentencing judges have the power to depart when confronted with circumstances "of a kind or to a degree, not adequately taken into consideration by the Sentencing Commission," 18 U.S.C. Sec. 3553(b). To the extent Secs. 5H1.1-5H1.6 factors might relate to this case, the Guidelines permit departure when the circumstances are extraordinary. United States v. Brand, 907 F.2d 31 (4th Cir.1990). Whether or not factors are extraordinary is a question of fact to which the clearly erroneous standard applies on appeal. United States v. Summers, 893 F.2d 63 (4th Cir.1990), and Brand, supra. Whether or not a factor was adequately taken into consideration by the Sentencing Commission is a finding to which the de novo standard applies on appeal. See Summers, supra, at 66, 67.

916 F.2d at 919 (footnote omitted) (emphasis added).

C. Penn relies upon the emphasized language in the foregoing excerpt. To the extent we made reference to the proper standard for review relating to findings of fact with respect to downward departures, that statement was mere dicta because, as discussed above and as reaffirmed by Deigert itself, a decision by the district court in accordance with the Guidelines is not reviewable under Bayerle. ¹ "[T]he proposition that the factual finding underlying a district court's refusal to depart is subject...