U.S. v. Nelson, 89-5270

• Citation: 918 F.2d 1268
• Decision Date: 20 November 1990
• Docket Number: No. 89-5270,89-5270
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Lloyd NELSON, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1268

918 F.2d 1268

3 Fed.Sent.R. 250

UNITED STATES of America, Plaintiff-Appellant, v. Lloyd NELSON, Defendant-Appellee.

No. 89-5270.

United States Court of Appeals Sixth Circuit.

Argued March 16, 1990.

Decided Nov. 20, 1990.

Steven H. Cook, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Chattanooga, Tenn., for plaintiff-appellant.

Richard K. Mabee (argued), Chattanooga, Tenn., for defendant-appellee.

Before WELLFORD and RYAN, Circuit Judges, and EDWARDS, Senior Circuit Judge.

RYAN, Circuit Judge.

The government appeals from defendant's sentence imposed pursuant to the United States Sentencing Commission's Sentencing Guidelines ("the guidelines"). We are asked to review the district court's downward departure from the guidelines for the stated purpose of imposing upon defendant a sentence "in line" with sentences imposed upon his co-conspirators. We conclude that, while such a departure may be permitted under the guidelines in some circumstances, it was not proper in this case. We shall, therefore, vacate the sentence imposed and remand for resentencing.

I.

On November 3, 1988, a jury convicted Lloyd Nelson on one count of conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. Sec. 846. Nelson had participated in a Tennessee-based methamphetamine manufacturing operation by transporting cash from Montana to Tennessee for the chief conspirator. Nelson also worked as an armed guard/receptionist at the laboratory where the illicit drug was manufactured. In March 1988, officials of the Drug Enforcement Administration ("DEA") broke up the operation and arrested Nelson along with co-conspirators Ray and Lisa Loudermilk and Loretta Grape.

Following his indictment, trial, and conviction, Nelson was sentenced to forty-two months in prison, to be followed by three years of supervised release, during which he must perform 100 hours of community service and participate in a drug rehabilitation program. He was also assessed a $50 special fee. Ray and Lisa Loudermilk and Ms. Grape, who had pled guilty to the offense, received sentences of sixty, forty-eight, and thirty months, respectively. These sentences were downward departures from guidelines prescribed sentencing ranges of 188 to 235, 121 to 151, and 97 to 121 months, respectively, and were based upon the Loudermilks' and Grape's extensive cooperation with authorities and acceptance of responsibility for their crimes. See United States Sentencing Commission's Sentencing Guidelines Manual, Secs. 5K1.1 at 5.41 and 3E1.1 at 3.23 (rev. ed. 1989) [hereinafter Guidelines Manual ].

The district court determined that the guidelines provided for a sentence for Nelson of incarceration for a period between 151 to 188 months, and a fine from $17,500 to $175,000. The guidelines range was determined by the quantity of methamphetamine involved in the operation, which was 18.75 pounds, by the finding that Nelson had obstructed justice in lying to DEA agents and lying at his trial, and by the determination that Nelson was a minor participant in the conspiracy. But, at Nelson's sentencing hearing, the court, citing section 5K2.0 of the Guidelines Manual, explained that "a departure is warranted to bring this defendant's sentence in line with the sentences that the Court has already imposed on other Defendants in connection with this same methamphetamine conspiracy." It then imposed a sentence of forty-two months confinement.

The government appeals the sentence. ¹ It argues that the district court's reason for departing downward from the guidelines is prohibited as a matter of law and, even if it is not, the court clearly erred in finding Nelson entitled to lenity, given the facts of the case. The government also claims that the forty-two month sentence, almost one-fifth of the 151 to 188 month sentence the court deemed was proper for Nelson under the guidelines, and the lack of any fine, was unreasonable.

II.

In reviewing appeals from sentences which are the result of departures from the guidelines, a number of panels of this court have relied on the three-pronged analysis originally set forth in United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). The Diaz-Villafane approach has been used in upward departure situations, see, e.g., United States v. Joan, 883 F.2d 491, 494 (6th Cir.1989); United States v. Rodriguez, 882 F.2d 1059, 1067 (6th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1144, 107 L.Ed.2d 1048 (1990); and in downward departure cases. See, e.g., United States v. Brewer, 899 F.2d 503, 506 (6th Cir.1990); United States v. Hays, 899 F.2d 515, 519 (6th Cir.1990).

The Diaz-Villafane approach calls for an appellate court to test a district court's sentence under three separate standards of review:

First, we assay the circumstances relied on by the district court in determining that the case is sufficiently "unusual" to warrant departure. That review is essentially plenary: whether or not circumstances are of a kind or degree that they may appropriately be relied upon to justify departure is, we think, a question of law.

Second, we determine whether the circumstances, if conceptually proper, actually exist in the particular case. That assessment involves fact finding and the trier's determinations may be set aside only for clear error.

....

Third, once we have assured ourselves that the sentencing court considered circumstances appropriate to the departure equation and that those factors enjoyed adequate record support, the direction and degree of departure must, on appeal, be measured by a standard of reasonableness. 18 U.S.C. Sec. 3742(e)(2).... In this context, reasonableness is determined with due regard for "the factors to be considered in imposing sentence," generally, and "the reasons for the imposition of the particular sentence, as stated by the district court...." 18 U.S.C. Sec. 3742(d)(3).

Diaz-Villafane, 874 F.2d at 49.

The author's misgivings about the Diaz-Villafane review methodology notwithstanding, ² ] it is now the settled standard of review for guidelines departure cases in this circuit.

A.

Our first duty in applying the first prong of Diaz-Villafane is to identify the "circumstances" relied upon by the trial court in departing from the guidelines and then to decide, de novo, whether those circumstances are sufficiently "unusual" to justify the departure. Diaz-Villafane, 874 F.2d at 49; Rodriguez, 882 F.2d at 1067.

The district court described the circumstance justifying departure as follows:

The Court, however, has decided in this case that some departure is warranted under Section 5K2 of the guidelines. The Court finds that a departure is warranted to bring this Defendant's sentence in line with the sentences that the Court has already imposed on other defendants in connection with this same methamphetamine conspiracy, and the Court will set that sentence at 42 months, which is a downward departure from the minimum 151 months called for by the guidelines.

The first question, then, is whether, as a matter of law, the district court's desire to bring the sentence of one of several co-conspirators into general conformity with the range of sentences imposed upon his confederates is a "circumstance" sufficiently "unusual" to justify departure. ³

Of all the purposes that induced Congress to enact the Sentencing Reform Act, 18 U.S.C. Sec. 3551 et seq., which authorized the Sentencing Commission to issue guidelines, none was more compelling than Congress' desire to achieve greater uniformity in sentencing or, stated otherwise, to eliminate unreasonable disparity in sentencing. 18 U.S.C. Sec. 3553(a)(6) states that one of the factors to be considered before imposing a sentence is "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." The Sentencing Commission has declared that Congress' purpose was, in part, to achieve greater uniformity in sentencing "by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders" and to create greater proportionality "through a system that imposes appropriately different sentences for criminal conduct of different severity." Guidelines Manual Policy Statement at 1.2.

The Sentencing Commission attempted to achieve these goals by assembling a vast array of characteristics organized in a way that purportedly categorizes similar defendants similarly. For example, the elaborate drug quantity table appended to Guidelines Manual Sec. 2D1.1 at 2.40-2.45 is one means of categorizing drug offenders who are convicted of manufacturing or dealing approximately the same amount of controlled substances. Offenders having comparable criminal histories fit within any one of six classes. See Guidelines Manual Secs. 4A1.1 to 4B1.3 at 4.1-4.13. Offenders may also be grouped according to whether they did or did not obstruct justice, see Guidelines Manual Sec. 3C1.1 at 3.9, whether they were major or minor participants in the underlying crime, see Guidelines Manual Secs. 3B1.1 and 3B1.2 at 3.5-3.6, and whether or not they accepted responsibility for their transgressions, see Guidelines Manual Sec. 3E1.1 at 3.23; these latter considerations being an attempt to tailor personal characteristics to individual defendants.

The result of these and the many other classifications established in the guidelines is a sentencing scheme designed to eliminate unreasoned disparity among similarly situated offenders. However, the key word here is "unreasoned." Disparity in sentencing among criminal co-actors is not, per se, unlawful, or even necessarily undesirable. It is illogical, unjust, and unwarranted disparity that Congress' policy of sentence uniformity is intended to displace. We cannot say, as a matter of law (prong I of Diaz-Villafane ), that there could never be a situation in...