U.S. v. Maddalena
| Decision Date | 28 February 1990 |
| Docket Number | No. 89-1533,89-1533 |
| Citation | 893 F.2d 815 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Peter Michael MADDALENA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Donald A. Davis, Asst. U.S. Atty. (argued), Julie Ann Woods, Asst. U.S. Atty., Grand Rapids, Mich., Karen Skrivseth, Dept. of Justice, Crim. Div., Appellate Section, Washington, D.C., for plaintiff-appellee.
Timothy Young (argued), Lansing, Mich., for defendant-appellant.
Before KENNEDY and RYAN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
On February 21, 1989, defendant Peter Michael Maddalena pleaded guilty to one count of armed bank robbery, in violation of 18 U.S.C. Sec. 2113(a) and (d). He appeals his sentence of 22 years' (264 months) imprisonment, to be followed by a five-year term of supervised release, and a $50 special assessment claiming the sentence is not in accordance with the guidelines. We agree that the District Court may have misunderstood its discretion under the guidelines, and REMAND for resentencing.
Defendant robbed the Comerica Bank in Comstock Park, Michigan of $3,622 on July 29, 1988. Defendant entered the bank, placed a knife on the counter, and asked the teller for money. Defendant had previously been convicted of unarmed bank robbery in 1975, in violation of 18 U.S.C. Sec. 2113(a), and of assault with intent to rob while armed, in 1979. Noting these two prior convictions, the presentence report classified defendant as a career offender and identified the applicable guideline range as 262 to 327 months of imprisonment.
During the sentencing hearing, the government provided for the record a copy of the information to which defendant had pleaded guilty in 1975, and the 1975 presentence report. The information included evidence that the defendant said to the teller during the 1975 robbery, "Hurry up now, I don't want anyone to get hurt."
Defendant argues that the District Court incorrectly believed that it could not consider defendant's mitigating circumstances and exercise discretion to deviate from the guidelines. He also argues that the court incorrectly believed that section 5K2.13 of the Sentencing Guidelines precluded the consideration of defendant's diminished capacity. Defendant further argues that the 1975 robbery was not a crime of violence and that therefore, he was incorrectly classified as a "career offender." He also argues that the court improperly considered the 1975 information. Finally, defendant argues that the court incorrectly denied him the opportunity to comment personally to the court prior to sentencing.
We find that the District Court incorrectly believed that it could not consider defendant's mitigating circumstances and exercise discretion to depart from the guidelines based upon such consideration. We further find that the defendant's other arguments are not meritorious and that we need not decide the issue of the District Court's failure to provide defendant with the opportunity to comment personally to the court prior to sentencing. Accordingly, we REMAND this case to the District Court so that it may consider defendant's mitigating circumstances and depart from the guidelines if it so chooses. We also instruct the court to consider a recent amendment clarifying section 4B1.1 of the guidelines in determining whether to reduce defendant's offense level under the career offenders guideline for Acceptance of Responsibility.
Defendant first argues that the District Court incorrectly believed that it could not consider defendant's mitigating circumstances and thus exercise discretion to depart from the guidelines. Defendant argues that his efforts to stay away from drugs comprise mitigating circumstances that the judge had discretion to consider and to use as a basis for departing from the guidelines. 1 Section 5K2.0 of the guidelines is a policy section, which states in part:
Under 18 U.S.C. Sec. 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if 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." Circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing. Nonetheless, the present section seeks to aid the court by identifying some of the factors that the Commission has not been able to fully take into account in formulating precise guidelines. Any case may involve factors in addition to those identified that have not been given adequate consideration by the Commission. Presence of any such factor may warrant departure from the guidelines, under some circumstances, in the discretion of the sentencing judge. Similarly, the court may depart from the guidelines, even though the reason for departure is listed elsewhere in the guidelines (e.g., as an adjustment or specific offense characteristic), if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.
United States Sentencing Commission Guidelines Manual, (Manual) Sec. 5K2.0 at 5.42 (rev. ed. 1989). This section and the relevant case law make it clear that the sentencing judge had discretion to deviate from the guidelines. See, e.g., United States v. Allen, 873 F.2d 963, 966 (6th Cir.1989) ().
In sentencing the defendant, the judge made several comments indicating that he did not believe he had the authority to consider defendant's mitigating circumstances and the discretion to deviate from the guidelines. For example, he stated:
The other issue, of course, under 5K and 5K2 concerning departures raises a serious question that is yet being hammered out in the appellate courts, federal courts today, and that is to what extent are departures encouraged in the sentence so-called guideline structure.
Later, he stated:
[D]o you understand that I am giving you the bare minimum I can give you in consideration for all these things? ... [D]o you understand that I am giving you the very minimum I can give you under the sentence guidelines, that your quarrel may be with the sentence guidelines people--...."
These statements indicate that the judge incorrectly believed that he lacked any authority to consider defendant's mitigating circumstances as well as the discretion to deviate from the guidelines. Therefore, we remand this case to the District Court, instructing the judge that he may, but need not, consider the defendant's efforts to stay away from drugs as a basis for departing from the guidelines.
Another matter warrants consideration on remand as well. The presentence report reveals that the probation officer did not believe that under section 4B1.1 there could be an adjustment downward for Acceptance of Responsibility in determining defendant's offense level. The presentence report stated, "Since the defendant is a career offender, the offense level cannot be less than 34." Elsewhere, the presentence report concluded that defendant's conduct in turning himself in to the FBI even before an arrest warrant issued, and pleading guilty, would otherwise allow a two-level reduction. A recent amendment clarifying section 4B1.1 of the guidelines states, "If an adjustment from Sec. 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by 2 levels." Manual, Sec. 4B1.1 at 4.11. The judge, when reviewing this case on remand, should consider this recent clarification of section 4B1.1 together with the findings in the presentence report in determining whether to reduce defendant's offense level two levels for Acceptance of Responsibility.
Defendant next argues that the District Court incorrectly interpreted section 5K2.13 2 so as to preclude consideration of defendant's mental capacity as a basis for departing from the guidelines. The record reveals that the judge believed that section 5K2.13 precluded consideration of defendant's mental capacity as a basis for departure. The judge stated:
One must remember that when we're talking about departures under these so-called guidelines, the Guideline Commission and the statute have just a little different variance in this, and somebody's going to iron it out someday, certainly not me. That is that a departure may only be had if it involves a topic that has not otherwise been addressed in the guidelines....
As noted above, section 5K2.0 states that "the court may depart from the guidelines, even though the reason for departure is listed elsewhere in the guidelines (e.g., as an adjustment or specific offense characteristic), if the court determines that, in light of unusual circumstances, the guidelines level attached to that factor is inadequate." Manual, Sec. 5K2.0 at 5.42. The circumstances in the present case do not appear to be unusual. We find that the court's failure to consider defendant's mental capacity for departure purposes was not improper.
Defendant also argues that even if the court did not have the discretion to consider his mental condition as a mitigating factor, defendant's diminished capacity may be considered under section 5K2.13. Specifically, he argues that the robbery he committed was a non-violent offense and that the court improperly considered his mental condition as being caused by his voluntary use of drugs, for he was also suffering from severe depression and hypoglycemia.
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