U.S. v. Miller

• Decision Date: 02 February 1993
• Docket Number: No. 92-30083,92-30083
• Citation: 991 F.2d 552
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Rachelle L. MILLER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 552

991 F.2d 552

UNITED STATES of America, Plaintiff-Appellant, v. Rachelle L. MILLER, Defendant-Appellee.

No. 92-30083.

United States Court of Appeals, Ninth Circuit Submitted Feb. 2, 1993 ^*.

Decided April 15, 1993.

John C. Carver, Asst. U.S. Atty., Seattle, WA, for plaintiff-appellant.

Murray B. Guterson, Culp, Guterson & Grader, Seattle, WA, for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: TANG, KOZINSKI and FERNANDEZ, Circuit Judges.

KOZINSKI, Circuit Judge:

A. Rachelle Miller pled guilty to embezzling money from the bank for which she worked. Her Guidelines sentence range was 12 to 18 months, but the district judge departed downward and sentenced her to three years probation plus six months home detention. The government appealed, claiming the district court gave an insufficient explanation of its reasons for departing, and we remanded for resentencing. The district court reimposed the same sentence, this time with a full explanation, and the government appeals again.

B. The first reason the district court gave for departing--that Miller has two small children who "would be placed at potential risk," ER G at 14, if Miller is sent to jail--is improper. The Commission considered whether family responsibilities should affect the sentence, and concluded they "are not ordinarily relevant in determining" whether to depart. U.S.S.G. § 5H1.6. And there's nothing extraordinary about this case. Miller "has shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts ... parental relationships." United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir.1991). ¹

C. Likewise, the court's second reason for departing--that Miller has a clean record and poses no threat to the public--is also improper. The Commission considered the fact that people with no criminal history pose relatively little threat; that's what criminal history category I is all about, and Miller got the benefit of it. See id. at 1095.

D. Another reason the court gave for departing was the magnitude of Miller's restitution. Miller and two other people embezzled $45,000, but though the plea agreement required her to pay only $18,000 restitution, she paid $58,000--substantially more, in the court's view, than she was responsible for. ER G at 15.

The Sentencing Commission considered the possibility that a defendant's payment of restitution might be a mitigating factor: U.S.S.G. § 3E1.1 app. note 1(b) permits a 2-level decrease for acceptance of responsibility if the defendant pays restitution. A court's discretion in departing because of restitution is therefore constrained in three ways. First, the departure must be consistent with the attitude the Commission took toward restitution, which is that restitution is relevant to the extent it shows acceptance of responsibility. In this case, this means the payment had to have been genuinely voluntary, rather than motivated primarily by a collateral consideration such as a desire to settle the civil lawsuit against her by the bank. Second, the court may depart only if the acceptance of responsibility was substantially greater than that contemplated by the Commission when drafting section 3E1.1. See U.S.S.G. § 5K2.0 (p.s.); 18 U.S.C. § 3553(b); Berlier, 948 F.2d at 1096; see also United States v. Brown, 985 F.2d 478, 482-83 (9th Cir.1993) (allowing departure for extraordinary acceptance of responsibility). And third, the magnitude of the departure must be commensurate with the level of the defendant's acceptance of responsibility. See United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991) (en banc). Because we're not sure the court applied this standard, we instruct it to reconsider its decision to depart because of payment of restitution.

E. The district court gave one more ground for departing: By the second sentencing hearing, Miller had almost finished serving her six months of home detention. Making her also serve the Guidelines prison sentence would be, the judge said, "a great travesty of justice." ER G at 16.

We agree it may have been proper to depart because of the six months of home detention Miller had already served. The fact that she'd already been punished to some extent is certainly relevant to what further sentence is needed to punish her and deter others. See 18 U.S.C. § 3553(a)(2) (sentence should reflect these and other considerations). And because the Commission seems not to have considered the issue of compensating for time erroneously served, the district court was free to depart. See 18 U.S.C. § 3553(b).

But its freedom wasn't unlimited. Home detention is a lighter punishment than prison, so it would have been wrong for the district court to reduce Miller's prison term by more than the six months she served under home detention. Even reducing the prison term by exactly six months would leave her with a lighter punishment than Congress authorized, though not unacceptably lighter. When home detention is an appropriate punishment (which it would have been had Miller's offense level been 12 rather than 13), the Guidelines approve of crediting home detention time for prison time on a one-for-one basis. U.S.S.G. § 5C1.1(e)(3).

We therefore conclude that, if the district court finds the appropriate sentence for Miller would otherwise include some prison time, it may depart downward by up to six months to take into account her home detention. The exact amount of the departure should be dictated by the district court's balancing of the factors given in 18 U.S.C. § 3553(a)(2). ²

SENTENCE VACATED and REMANDED FOR RESENTENCING

TANG, Circuit Judge: Concurring in part and dissenting in part:

I concur in various aspects of the majority's opinion, but must respectfully dissent because the majority does not give due deference to the district court's discretion in sentencing. The unique combination of factors in this case constitutes a sufficient mitigating circumstance justifying a downward departure from the Sentencing Guidelines range. See United States v. Cook, 938 F.2d 149, 153 (9th Cir.1991).

I.

Rachelle Miller and two other employees embezzled a total of $45,623 from the City Bank of Lynnwood, Washington. The other employees were not prosecuted, and the loss has never been apportioned among the three people, although Miller admitted that she was involved to some extent in all of the transactions. Prior to engaging in plea negotiations with the government, Miller attempted to arrange restitution with the bank; she offered to pay the bank $40,000 to settle a civil lawsuit if the bank would release a lien it had placed on the family's home so that Miller and her husband could refinance the home to pay the bank. The bank refused to release the lien. Had the bank done so, Miller contends that she would have paid restitution to the bank before criminal action was commenced.

After the plea agreement was signed in November, in which the government agreed to a restitution payment of $18,164, Miller paid the bank that amount on December 2, 1991. Miller and her husband later obtained a loan from her husband's employer, and in May, 1992, Miller made a further $40,000 payment to the bank, for a total restitution of $58,164.

At the first sentencing proceeding on January 31, 1992, the district court stated its intention of departing downward. The judge felt that no purpose would be served by incarcerating Miller, because there was no question that she would not again be involved in criminal activity, she had already suffered greatly from the proceedings, and the result would be a deterrence to others. [ER B at 13-14]. Because the court had not given the government notice of its intent to depart, the court asked the government attorney whether he wanted a hearing regarding this determination; the government voiced no objections regarding the departure and submitted a form of judgment which was signed by the court on February 4, 1992. Miller was sentenced to six months of home detention which she immediately began serving, three years of probation, and 300 hours of community service. The government voiced no objections to the sentence until its notice of appeal filed on February 28, 1992.

On April 27, 1992, the parties stipulated to remand the case to the district court for the limited purpose of explaining further the reasons for departure. At the second sentencing hearing held on July 20, 1992, the district court imposed the same sentence, but articulated more specific reasons for its downward departure: Miller's family circumstances, the extraordinary degree to which restitution had been made, and Miller's completion of the six month home detention. The majority opinion sends the case back to the district court for yet another round of sentencing proceedings.

II.

In United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en banc), this court set out a three step analysis to determine whether a sentence was appropriately imposed outside the Sentencing Guideline range. First, a court must sentence a defendant within the Sentencing Guidelines unless "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." If the circumstance is not adequately considered by the Guidelines, the court may depart "so long as the circumstance is consistent with the sentencing factors prescribed by Congress in 18 U.S.C. § 3553(a), with the Guidelines, and, of course, with the Constitution." Lira-Barraza, 941 F.2d at 746. Whether a factor is adequately considered by the Guidelines and is consistent with 18 U.S.C. § 3553 is reviewed de novo. Id.

Second, the factual findings supporting the existence of the circumstance are...