U.S. v. Lara

• Decision Date: 30 May 1990
• Docket Number: No. 185,D,185
• Citation: 905 F.2d 599
• Parties: , 3 Fed.Sent.R. 8 UNITED STATES of America, Appellant, v. Rogelio LARA, Carlos Morales, Francisco Delgado, Defendants, Carlos Morales, Defendant-Appellee. ocket 89-1210.
• Court: U.S. Court of Appeals — Second Circuit

Page 599

905 F.2d 599

58 USLW 2724, 3 Fed.Sent.R. 8

UNITED STATES of America, Appellant, v. Rogelio LARA, Carlos Morales, Francisco Delgado, Defendants Carlos Morales, Defendant-Appellee.

No. 185, Docket 89-1210.

United States Court of Appeals Second Circuit.

Argued Oct. 11, 1989.

Decided May 30, 1990.

David C. James, Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty., Matthew E. Fishbein, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellant.

Bennett M. Epstein (Lawrence M. Herrmann, Epstein & Kirshner, New York City, of counsel), for defendant-appellee.

Before FEINBERG and CARDAMONE, Circuit Judges, and METZNER, District Judge. ^*

CARDAMONE, Circuit Judge:

The government appeals from a judgment of the United States District Court for the Eastern District of New York (Glasser, J.) entered on April 11, 1989, resentencing appellee Carlos Morales to a term which downwardly departed from the Sentencing Guidelines range pursuant to 18 U.S.C. Sec. 3553(b) (1988).

I BACKGROUND

The facts of this case are straightforward. Defendant-appellee Morales was found guilty at a non-jury trial of conspiracy to possess and possession of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841, 846 (1988), based upon evidence that he and two co-defendants supplied approximately seven kilograms of high-purity cocaine to government agents in three separate transactions in the fall of 1987. The district court sentenced Morales, without reference to the Sentencing Guidelines, to the statute's mandatory minimum sentence of five years to be followed by concurrent terms of three years of supervised release, and a one-hundred dollar special assessment. The government appealed this sentence following the Supreme Court's ruling in United States v. Mistretta, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), that the Sentencing Guidelines are constitutional, and we remanded the case for resentencing in accordance with the Guidelines in an unpublished order filed on March 23, 1989. See United States v. Morales, Docket No. 88-1233 (2d Cir. Mar. 23, 1989).

At resentencing defense counsel sought, pursuant to 18 U.S.C. Sec. 3553(b), a downward departure from the Guidelines' range of 121 to 151 months, premised upon a mitigating factor that counsel contended had not adequately been considered by the Sentencing Commission. That factor is the "potential for victimization." Principally, defense counsel argued that the defendant was a "delicate looking young man ... [with] a certain sweetness about him," who had been victimized as a consequence of his diminutive size, immature appearance and bisexual orientation. Defense counsel claimed at the resentencing proceedings that while incarcerated an incident occurred in which "two tough male ... inmates were attempting to coerce defendant by threats into becoming a male prostitute ... for their economic gain and ... enjoyment." The head of the jail unit responded to this event by placing Morales in solitary confinement--also known as "the hole."

The government argued that these circumstances--assuming the alleged incident actually occurred--were not a valid basis for a downward departure under part H of chapter 5 of the Guidelines Manual. In addition, it contended that Morales could find relief from possible prison victimization through administrative remedies or a habeas petition. The sentencing court rejected these arguments and downwardly departed under Sec. 3553(b). In explanation, Judge Glasser stated

Although this defendant is chronologically 22 years old, he looks 16. Not only does he look 16 but he couldn't add to very much what his attorney said. He looks 16. The presentence report reflects an admitted bisexuality.

This defendant is, and I knew it at the time that I sentenced him, peculiarly vulnerable and were it not for the mandatory minimum sentence which Congress required me to impose, I wouldn't have imposed that at the time.

... [The guidelines range would result in] a sentence which is unduly severe relative to most other defendants in this Court who do not have the vulnerability, the appearance, the sexual orientation that this defendant presents.

... [The guidelines sentence] I would regard as being nothing less than draconian, and ... I'm familiar with administrative They would provide this defendant with little solace.

procedures and writs of habeas corpus.

. . . . .

It is from this sentence that the government appeals. We affirm.

II DISCUSSION

Congress promulgated the Sentencing Guidelines to avoid "unwarranted sentencing disparities among defendants." 28 U.S.C. Sec. 991(b)(1)(B) (1982 & Supp. V 1987). In attempting to eliminate disparity Congress enumerated factors the sentencing judge should consider in determining the appropriate sentencing range. See 18 U.S.C. Sec. 3553(a) (1988). It recognized that there would be circumstances in which departure from the Guidelines' range would be necessary, and granted statutory authority to depart from the Guidelines' range when "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...." Id. Sec. 3553(b).

The Commission did not provide a comprehensive list of those factors a sentencing judge should consider in departing from the applicable Guidelines' range, listing instead only a few specific factors, see, e.g., United States Sentencing Commission Guidelines, Secs. 5K2.1-.15, p.s. at 5.43-.47 (1989), (U.S.S.G.), leaving the application of other factors to the discretion of the sentencing judge, id. Sec. 5K2.0, p.s. at 5.42-.43. The Commission also designated several factors that it deemed would not be "ordinarily relevant" in imposing sentence. See, e.g., id. Secs. 5H1.1-.6, p.s. at 5.35-.36.

The government has raised several arguments in urging reversal of the sentence. It contends that extreme vulnerability of criminal defendants is not a factor permitting departure under Sec. 3553(b), that the district court improperly relied upon factors the Commission designated as not "ordinarily" relevant at sentencing, that the court's basis of departure contravenes the sentencing philosophy adopted by Congress in enacting the Guidelines, and that the district court circumvented available administrative remedies in attempting to ameliorate the conditions of incarceration. None of these contentions warrant reversal.

Before discussing these arguments, we address as a preliminary matter the government's assertion that the language "of a kind, or to a degree" in Sec. 3553(b) should not be applied to Morales because this language was added by Congress subsequent to his commission of the present crime. Congress has indicated that we should apply the guidelines and policy statements issued by the Sentencing Commission that are in effect at the time of sentencing, not those extant at the time of the commission of the crime. See 18 U.S.C. Sec. 3553(a)(4), (5) (1988). Thus, the language "of a kind, or to a degree" should be applied to Morales.

A. Appellate Review

In reviewing district court decisions under the Guidelines, we apply de novo review to decisions on issues of law and the clearly erroneous standard to findings of fact. See United States v. Stroud, 893 F.2d 504, 506-07 (2d Cir.1990); cf. United States v. Irabor, 894 F.2d 554, 555 (2d Cir.1990). We review de novo the district court's determination that extreme vulnerability of criminal defendants was not considered by the Sentencing Commission "of a kind, or to a degree" as was found here. See United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990); United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989); United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989). The dissent asserts that the Commission considered the propensity of criminal defendants to physical attack in prison when it formulated the Guidelines. Although we agree with that assertion as a general proposition, it is plain that the Commission did not consider vulnerability to the extent revealed in this record--where the only means for prison officials to protect Morales was to place him in solitary confinement. Hence, the peculiar vulnerability Further, we review the district court's factual determination that such extreme vulnerability was present under the clearly erroneous standard of 18 U.S.C. Sec. 3742(e), deferring to the district court's findings because it is in the best position to observe the defendant's demeanor and characteristics. See Summers, 893 F.2d at 67. We cannot say that the description of Morales' appearance and demeanor as found by the sentencing court was clearly erroneous.

found by the district court was a circumstance not taken into account by the Commission.

Because extreme vulnerability of a criminal defendant is a proper ground for departure under Sec. 3553(b), the district court has "sensible flexibility" to depart under circumstances where such action is not unreasonable. See United States v. Palta, 880 F.2d 636, 639 (2d Cir.1989); accord United States v. Correa-Vargas, 860 F.2d 35, 40 (2d Cir.1988).

B. Sec. 5H1 Factors

The government first asserts that the district court relied upon the factors of age, mental and emotional condition, and physical condition that the Commission explicitly designated as "ordinarily" not relevant in imposing sentence. See U.S.S.G. Secs. 5H1.1, 5H1.3, 5H1.4, p.s. at 5.35-.36. We do not think that the sentencing court relied on the defendant's age; it merely observed that Morales "looks 16." This comment reveals that the trial judge considered the defendant's immature appearance, not his chronological years. The district court did not depart on account of defendant's homosexual orientation--which the government equates with a mental or emotional condition. Instead it considered Morales' sexual orientation, not as a separate characteristic meriting departure, but...