U.S. v. Martin

• Decision Date: 01 August 2000
• Docket Number: No. 99-2380,99-2380
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, APPELLANT, V. EUGENE EDWARD MARTIN, DEFENDANT, APPELLEE. . Heard:
• Court: U.S. Court of Appeals — First Circuit

Page 52

221 F.3d 52 (1st Cir. 2000)

UNITED STATES OF AMERICA, APPELLANT,

V.

EUGENE EDWARD MARTIN, DEFENDANT, APPELLEE.

No. 99-2380.

United States Court of Appeals, For the First Circuit.

Heard: Aug. 1, 2000.

Decided: August 15, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.

Hon. William G. Young, U.S. District Judge.

[Copyrighted Material Omitted] Dina Michael Chaitowitz, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellant.

Thomas H. Souza, with whom Jeremy M. Carter and Carter & Associates were on brief, for appellee.

Before Selya and Lipez, Circuit Judges, and Casellas,^* District Judge.

SELYA, Circuit Judge.

This appeal tests the boundaries of the district court's authority to depart from the prescribed guideline sentencing range (GSR). Concluding, as we do, that the court roamed too far afield, we vacate the imposed sentence and remand for resentencing.

I. Background

The relevant facts are simple and straightforward. On May 11, 1999, defendant-appellee Eugene Edward Martin pleaded guilty to a charge of distributing 119.6 grams of cocaine base. See 21 U.S.C. § 841. The district court convened the disposition hearing on September 8, 1999. It applied the 1998 edition of the United States Sentencing Guidelines -a determination with which no one quarrels, see United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990) - and arrived at a base offense level of thirty-two. See USSG §2D1.1(c)(4). The court proceeded to adjust downward by three levels for acceptance of responsibility. See id. §3E1.1. It then found the "safety valve" to be applicable, see 18 U.S.C. § 3553(f); USSG §§2D1.1(b)(6), 5C1.2, and effected a further two-level reduction, see generally United States v. Ortiz-Santiago, 211 F.3d 146, 150-51 (1st Cir. 2000) (explaining operation of the safety valve). These calculations yielded an adjusted offense level of twenty-seven, which, when combined with Martin's lack of a prior criminal record, corresponded to a GSR of 70-87 months. See USSG Ch.5, Pt.A (sentencing table).

To this point, the district court's judgments were impeccable. The court, however, did not stop there; it snubbed the GSR and departed downward sua sponte to impose a 64-month incarcerative term. The judge premised this departure on a combination of two factors. First, he remarked "the absence of [an active] Sentencing Commission."¹ This circumstance, he reasoned, was one that "no one had contemplated" and that permitted him to depart "if I think it reasonable that had there been a Commission the guidelines would in fact apply differently." Judge Young then referred to a statistical compilation that he had directed the chief probation officer to prepare. These statistics purported to reflect all federal sentences imposed in fiscal year 1997 on persons whose primary offense was drug trafficking, regardless of the nature or amount of the substances involved. In Judge Young's view, the data "show[ed] that nationally the median months in prison out of 17,137 offenders sentenced was 57 months, and in the First Circuit the mean was 67.8 months, with a median of 50 months out of 543 offenders." Accordingly, sentencing Martin within the GSR would promote this disparity, whereas imposing a shorter term of immurement would partially offset it (and was, in the judge's opinion, "just and fair").

The government appeals this downward departure.

II. Analysis

We review departure decisions for abuse of discretion. See Koon v. United States, 518 U.S. 81, 96-100 (1996); United States v. Brewster, 127 F.3d 22, 25 (1st Cir. 1997). Our precedents contemplate a trifurcated approach. "First, we determine as a theoretical matter whether the stated ground for departure is permissible under the guidelines. If the ground is theoretically appropriate, we next examine whether it finds adequate factual support in the record. If so, we must probe the degree of the departure in order to verify its reasonableness." United States v. Dethlefs, 123 F.3d 39, 43-44 (1st Cir. 1997) (footnote and citations omitted). In this instance, we need not go beyond the first facet of the Dethlefs inquiry.

A.

Before proceeding to that point, however, we pause to consider the defendant's contention that the government forfeited the argument that it advances on appeal by failing to raise it below. On the surface, this contention seems potent - but the surrounding circumstances dissipate its force.

A sentencing court has an obligation to give reasonable notice that it is contemplating a departure. See Burns v. United States, 501 U.S. 129, 138-39 (1991). This obligation applies not only to upward departures, as was the case in Burns, but also to downward departures. See United States v. Pankhurst, 118 F.3d 345, 357 (5th Cir. 1997). Here, the record reveals that the sentencing court neglected to provide the government with adequate notice of its contemplated downward departure.

The defendant questions whether this is so, adverting to a pretrial conference held on December 21, 1998, in which Judge Young mentioned the dormancy of the Sentencing Commission, expressed concern about the status of the guidelines, and told the parties that he intended to obtain some sentencing data from the chief probation officer. We reject the suggestion that these comments constituted adequate notice of a contemplated departure.

In the first place, the judge's remarks were made almost five months before the defendant changed his plea and some nine months before the disposition hearing. The record reveals no continuing dialogue during the interim. Moreover, the presentence investigation report made no mention of this (or any other) possible basis for departure. On these facts, we do not think that the prosecutor reasonably could have been expected to divine an intention to depart despite the court's evident discomfiture with the Sentencing Commission's status. The judge's ruminations at the pretrial conference - ruminations that he himself described as "only academic" - may have adumbrated, but certainly did not articulate, a coherent rationale for departure.

If more were needed - and we doubt that it is - the statistics upon which the judge rested the departure were not furnished to the prosecution at any time prior to the disposition hearing. This was too late: a sentencing court must give fair warning not only of the rationale for a possible departure but also of the facts that undergird it in the particular instance. See United States v. Morris, 204 F.3d 776, 778 (7th Cir. 2000). Here, the court's introduction of a substantial body of new data at the disposition hearing contravened its obligation to afford the parties reasonable notice of what it envisioned as departure-justifying facts. See id. Given this chronology of events, we are constrained to conclude that the district court failed to comply with Burns.

Next, we turn to the question of remedy. In some circumstances, the omission of a departure warning might engender a remand for further proceedings. Here, however, such a course would unduly prolong matters without any corresponding gain. The government's objection to the departure is purely legal in nature, the parties have fully briefed the merits, and supplementary factfinding is not indicated. As long as fairness concerns are not compromised, courts should try to be practical. In the circumstances of this case, it makes sense to treat the lower court's failure to give notice as excusing the government's procedural default and rendering the departure decision ripe for appellate review.² Accord United States v. Bartsma, 198 F.3d 1191, 1197-99 (10th Cir. 1999).

B.

Having vaulted this procedural hurdle, we repair to the first prong of the Dethlefs inquiry. A court may impose a sentence outside the GSR 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 that should result in a sentence different from that described." 18 U.S.C. § 3553(b). To determine whether a circumstance was adequately considered by the Commission, the court must examine "the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." Id. These precepts are embedded, virtually word for word, in the guidelines themselves. See USSG §5K2.0.

The departure power is intended to ameliorate the mechanistic rigidity of the guidelines and to import a modicum of flexibility into the sentencing calculus. Thus, the Commission, generally speaking, did "not intend to limit the kinds of factors, whether or not mentioned anywhere in the guidelines, that could constitute grounds for departure in an unusual case." USSG Ch.1, Pt.A, intro. comment. (n.4(b)). Given this overall philosophy, courts categorically reject potential grounds for departure at their peril.

Most general rules admit of exceptions, however, and there are several exceptions to the rule that a departure theoretically can be grounded on any differentiating factor. Under these exceptions, sentencing courts are barred from basing departures on forbidden factors, factors adequately considered by the Commission, factors that lack relevance, and factors that offend the framework and purpose of the guidelines.

The first of these exceptions refers to certain enumerated factors that the Commission has placed beyond the pale, e.g., race, sex, national origin, creed, religion, and socioeconomic status. See USSG §5H1.10. Forbidden factors can never serve as the basis for a departure. See Koon, 518 U.S. at 95-96; United States v. Perez, 160 F.3d 87, 89 (1st Cir. 1998). The second exception flows directly from the statutory requirement that only an "aggravating or mitigating circumstance... not adequately considered by the [Commission]" can ground a departure. 18 U.S.C. § 3553...