U.S. v. Lopez, 90-3020
| Decision Date | 28 June 1991 |
| Docket Number | No. 90-3020,90-3020 |
| Citation | 938 F.2d 1293 |
| Parties | UNITED STATES of America v. Jose LOPEZ, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Crim. No. 89-00202-03).
Stephen C. Leckar (appointed by this court), with whom G. Allen Dale, was on the brief, Washington, D.C., for appellant.
James A. Meade, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Asst. U.S. Atty., were on the briefs, Washington, D.C., for appellee. Philip S. Kushner, Asst. U.S. Atty., was also on the supplemental brief, Washington, D.C., for appellee.
A.J. Kramer, Federal Public Defender, Washington, D.C., was on the amicus curiae brief on behalf of appellant.
Stuart M. Gerson, Asst. Atty. Gen., Dept. of Justice, and John R. Steer, General Counsel, and Donald A. Purdy, Jr., Chief Deputy General Counsel, U.S. Sentencing Com'n, Washington, D.C., were on the amicus curiae brief for U.S. Sentencing Com'n.
Before BUCKLEY, WILLIAMS and THOMAS, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
Appellant Clarence Morales, who was charged under the name of Jose Lopez, received a sentence of fifty-one months in prison and three years of supervised release after he pled guilty to conspiring to distribute cocaine. Morales challenges the district court's refusal to depart from the sentence prescribed by the Federal Sentencing Guidelines in consideration of his age and personal background. The district court correctly understood the Guidelines to limit departures on the basis of age to extraordinary circumstances, and it acted within its discretion when it determined that Morales's youth did not warrant a departure. In declining to mitigate the sentence on the basis of his background, the court concluded that because the Guidelines foreclosed consideration of a defendant's socio-economic status, it had no discretion to depart on the basis of Morales's particular history. Because the court mischaracterized certain elements of that history as "socio-economic," we set aside the sentence and remand for resentencing.
Congress enacted the Sentencing Reform Act of 1984 ("Act") to assure greater uniformity in sentencing by federal judges. The Act established the United States Sentencing Commission and gave it the mandate, inter alia, to determine whether certain factors, including the age of a defendant, "have any relevance to the nature ... of an appropriate sentence." 28 U.S.C. Sec. 994(d) (1988). The Act also directed the Commission to assure that its "guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders." Id. Pursuant to these instructions, the Commission included the following provisions in part H of its Guidelines Manual that deal with "Specific Offender Characteristics":
Sec. 5H1.1. Age (Policy Statement)
Age is not ordinarily relevant in determining whether a sentence should be outside the guidelines. Neither is it ordinarily relevant in determining the type of sentence to be imposed when the guidelines provide sentencing options. Age may be a reason to go below the guidelines when the offender is elderly and infirm and where a form of punishment (e.g., home confinement) might be equally efficient as and less costly than incarceration.
. . . . .
Sec. 5H1.10. Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status (Policy Statement)
These factors are not relevant in the determination of a sentence.
United States Sentencing Commission, Guidelines Manual, ch. 5, pt. H (1990) ().
The Guidelines permit a sentencing court to depart from the sentence derived from an application of the Guidelines to the facts of a particular case--that is to say, to increase or decrease the indicated sentence--where 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 ... that should result in a sentence different from that described."
Id. Sec. 5K2.0 (policy statement) (quoting 18 U.S.C. Sec. 3553(b)).
On May 25, 1989, Morales and two other men were arrested by the Washington, D.C., police for possession of cocaine and weapons. Morales subsequently pled guilty to conspiracy to distribute cocaine base in violation of 21 U.S.C. Secs. 841(a)(1), (b)(1)(C), and 846.
At his January 1990 sentencing hearing, Morales requested downward departures from the prescribed sentence on three grounds. He argued, first, that application of the Guidelines led to a significant overstatement of his criminal history; second, that his youth warranted a downward departure; and third, that his particular history justified additional consideration. In support of his arguments, Morales submitted a personal statement and letters from family members. These submissions, together with the presentence report, provide the following information about his background and personal experiences.
After his father left the family when Morales was a small child, his grandmother and mother raised him in Brooklyn, New York. When he was thirteen or fourteen, he was sent to Puerto Rico to live with his father. Family tensions and his inability to read and write Spanish caused him to return to his mother the following year. On arriving back in Brooklyn, he learned that she had remarried. At his stepfather's demand, Morales was sent to a home for juveniles. When he was fifteen and still at the home, Morales stole a bicycle to visit his sister. He was arrested and convicted of the offense. His grandmother then arranged for him to live with her in Brooklyn. Soon thereafter, his mother died from injuries sustained in falling from a roof. Morales and his family believe that she had been thrown from the roof by her husband, who was never prosecuted. After his stepfather threatened to kill him, Morales moved to Arlington, Virginia, where he lived with relatives and worked at a service station. He became involved in the drug trade in the spring of 1989. At the time of his arrest, Morales was eighteen years old.
The district judge granted the first request for a departure and reduced the criminal history category from level two to level one. The judge held that the level prescribed by Federal Sentencing Guidelines section 4A1.3 significantly overstated the gravity of his criminal history, which consisted of his conviction for bicycle theft when he was fifteen. The judge, however, denied the request to depart downward on the basis of defendant's youth and family history. The court recognized Morales's youth and the "tragic circumstances" of his life, but stated:
The Court's going to deny the request for this reason: It feels the guidelines do not give it any discretion, even using the term "ordinarily," based upon the guideline comments under that, saying there should be rare departures or departures should be considered very unusual. I recognize other district judges have taken the opportunity to depart on somewhat similar circumstances, but the guidelines were passed to provide uniformity in sentencing as one of their goals.
....
In any event, the Court feels that it [referring to Morales's age] is not such an unusual case as may be provided for by the wor[d] "ordinarily" in the guideline referred to earlier as that would permit the Court to depart. The circuits have pretty well established, I believe, that socioeconomic standing or background of the ... defendant can make no difference to the Court. That was taken into account by the guidelines themselves. That being the case, the Court will deny the request to depart further downward.
Transcript of Sentencing Hearing, Jan. 17, 1990 ("Tr."), at 21-23. Morales appealed from the court's refusal to depart downward on the basis of age and background, and challenged section 5H1.1 of the Guidelines on the basis that the Sentencing Commission had failed to explain why a defendant's youth should not ordinarily be taken into account by the sentencing court.
After oral argument, we directed the parties to file supplemental briefs addressing two questions:
(1) May a court set aside an applicable sentencing guideline because it was promulgated without a sufficient "statement of basis and purpose"? See 5 U.S.C. Sec. 553(c); 28 U.S.C. Sec. 994(x)....
(2) Is an individual's exposure to domestic violence and its attendant dislocations a constituent of "socio-economic status," and thus not relevant in the determination of a sentence under section 5H1.10 of the Sentencing Guidelines?
We also invited the United States Sentencing Commission to address these questions as amicus curiae.
This court may review a refusal to depart downward from a range prescribed by the Guidelines only if the district court imposes a sentence in violation of law or incorrectly applies the Guidelines. See 18 U.S.C. Sec. 3742(a) (1988); United States v. Ortez, 902 F.2d 61, 63 (D.C.Cir.1990). A sentencing court's decision not to depart is reviewable if based on a misconstruction of its authority to depart. See, e.g., United States v. Baskin, 886 F.2d 383, 389-90 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1831, 108 L.Ed.2d 960 (1990).
In the case before us, the court understood the scope of its authority on the question of age. Section 5H1.1 of the Guidelines Manual declares that age is "not ordinarily relevant in determining whether a sentence should be outside the guidelines," and courts have accordingly shown a reluctance to depart on the basis of age, see, e.g., United States v. Carey, 895 F.2d 318, 324 (7th Cir.1990); United States v. Summers, 893 F.2d 63, 68-69 (4th Cir.1990). The qualifier "ordinarily," however, does permit ...
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