U.S. v. Okane
| Decision Date | 03 April 1995 |
| Docket Number | No. 93-3277,93-3277 |
| Citation | 52 F.3d 828 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Dee OKANE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Randall K. Rathbun, U.S. Atty., and Richard L. Hathaway, Asst. U.S. Atty., Topeka, KS, for plaintiff-appellee.
J. Richard Lake, Holton, KS, for defendant-appellant.
Before BALDOCK and BRORBY, Circuit Judges, and McWILLIAMS, Senior Circuit Judge.
Defendant Robert Dee Okane appeals the district court's interpretation and application of various provisions of the Sentencing Guidelines that were relied upon in upwardly departing from the otherwise applicable guideline range. Our jurisdiction arises under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a)(2), and we vacate the sentence imposed and remand for re-sentencing.
Robert Okane, his brother Walter Okane, Thomas J. Gieseke and William L. Blacketer, were involved in a series of armed bank robberies of federally insured financial institutions in and around the Kansas City, Missouri area. 1 Robert Okane admitted his participation in a total of twenty three robberies. The defendants were subsequently charged by informations, and later superseding informations, in federal district court in Kansas. Each defendant thereafter entered into a plea agreement where they agreed to waive indictment and venue and plead guilty to certain counts of the superseding informations in exchange for dismissal of the remaining counts.
Under the terms of Mr. Okane's plea agreement, he would plead guilty to all twelve counts of the superseding information. Counts one, three and five through twelve charged Mr. Okane with the armed bank robbery of ten federally insured banks in Kansas and Missouri, in violation of 18 U.S.C. Secs. 2, 2113(a) and 2113(d). In counts two and four, Mr. Okane was charged with using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. Secs. 2 and 924(c). In exchange for his pleas of guilty, the government agreed not to pursue prosecution on the remaining thirteen bank robberies in which he admitted his involvement, as well as agreeing not to advocate a particular sentence and not to oppose a three-level reduction for acceptance of responsibility.
The district court sentenced Mr. Okane to 262 months imprisonment on each of the ten armed bank robbery counts with those sentences to be served concurrently. The district court also sentenced Mr. Okane to five years imprisonment on each of the two firearms charges, to be served consecutively to each other and consecutively to the sentences imposed on the robbery counts. On appeal, Mr. Okane only challenges the sentences imposed on the ten robbery counts, asserting those sentences resulted from an erroneous application of the sentencing guidelines. In order to address Mr. Okane's claims, we must first understand the methodology used by the district court in calculating Mr. Okane's sentence.
The presentence report set Mr. Okane's combined adjusted offense level at 37 under the multiple count adjustment of U.S.S.G. Sec. 3D1.4. After a three-level downward adjustment for Mr. Okane's acceptance of responsibility, his adjusted offense level was set at 34. The presentence report then determined Mr. Okane's criminal history category should be level I. The sentencing guideline range for an individual with a total offense level of 34 and a criminal history category of I is 151 to 188 months of imprisonment. At sentencing, however, the district court, in accordance with the recommendation in the presentence report, departed upward from this guideline range by making two alternative departure calculations.
As we understand the district court's first ruling, the court upwardly departed by increasing Mr. Okane's offense level by three levels, from 34 to 37. The district court made three separate increases to Mr. Okane's offense level. The first increase was attributed to the fact that Mr. Okane's offense level was increased only five levels under U.S.S.G. Sec. 3D1.4, even though he pled guilty to ten separate bank robberies. The second increase was based on prior uncharged similar adult criminal conduct under U.S.S.G. Sec. 4A1.3(e). This departure was warranted by Mr. Okane's admitted participation in the thirteen additional bank robberies.
The third and final increase was based on extreme psychological injury to certain victims in the various bank robberies, pursuant to U.S.S.G. Sec. 5K2.3 of the Guidelines. After this three level departure, Mr. Okane's sentencing range became 210 to 262 months imprisonment.
In the alternative, the district court indicated it would depart by raising Mr. Okane's offense level only one level (from 34 to 35) under Sec. 5K2.3 based on extreme psychological injury to certain victims of these robberies. At the same time, the sentencing court indicated it would depart by increasing Mr. Okane's criminal history category from level I to level III, based on a determination that category I underrepresented his criminal history because of his admitted involvement in thirteen additional uncharged robberies. The district court observed the guideline range for a defendant with an offense level of 35 and a criminal history category of III is 210 to 262 months, the same range applicable to a defendant with an offense level of 37 and a criminal history category of I. Over Mr. Okane's objections, the district court then sentenced him to 262 months imprisonment on each of the ten robbery counts, to be served concurrently. On appeal, Mr. Okane challenges each aspect of the district court's decision to depart upward.
In analyzing the propriety of a district court's decision to depart upward, we apply a three-tiered review process, which we first enunciated in United States v. White, 893 F.2d 276, 277 (10th Cir.1990). 2 Under White, step one requires us to examine the record de novo to determine whether the district court properly identified the existence of appropriate circumstances warranting a departure. See United States v. Tisdale, 7 F.3d 957, 962 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1201, 127 L.Ed.2d 549 (1994); White, 893 F.2d at 277-78.
A sentencing court may depart from the guideline sentence only if it " '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.' " White, 893 F.2d at 277-78 (quoting 18 U.S.C. Sec. 3553(b)). Where departure is based on factors that are considered by the guidelines, the sentencing court cannot depart unless it finds that consideration to be inadequate in light of unusual circumstances.
Tisdale, 7 F.3d at 962 (citations omitted).
If we find the existence of circumstances warranting a departure, the second step of the analysis involves a factual review of the record to "ascertain whether the circumstances cited by the district court to justify departure actually exist in the instant case." White, 893 F.2d at 278 (emphasis added). We will not disturb a district court's factual findings that circumstances warranting a departure exist in a particular case absent a showing of clear error. See id. (citing 18 U.S.C. Sec. 3742(e)); accord United States v. Keys, 899 F.2d 983, 990 (10th Cir.), cert. denied, 498 U.S. 858, 111 S.Ct. 160, 112 L.Ed.2d 125 (1990). "A finding of fact is clearly erroneous only if it is 'without factual support in the record, or if after reviewing all the evidence we are left with the definite and firm conviction that a mistake has been made.' " United States v. Chavez-Palacios, 30 F.3d 1290, 1295 (10th Cir.1994) (citation omitted).
Finally, having determined that some departure is legally appropriate, and that the facts of a particular case support such a departure, the third step in the analysis requires us to determine whether the degree of departure actually imposed by the district court was reasonable. See White, 893 F.2d at 278 (citing 18 U.S.C. Sec. 3742(e)(3)); see
also Tisdale, 7 F.3d at 963 (collecting Tenth Circuit cases).
In reviewing a district court's decision to depart from the otherwise applicable guideline range, we must be careful not to blur the distinction between offense level departures and criminal history departures, a distinction well recognized by our prior cases. See, e.g., United States v. Flinn, 987 F.2d 1497, 1500, 1504 (10th Cir.1993); United States v. Fortenbury, 917 F.2d 477, 479-80 (10th Cir.1990). We reiterate the principle, basic to the Guidelines, that "[f]actors considered in departing from applicable criminal history categories are distinct from those used in departing from appropriate offense levels." United States v. Thornton, 922 F.2d 1490, 1494 (10th Cir.1991) (); United States v. Jackson, 921 F.2d 985, 990-92 & n. 4 (10th Cir.1990) (en banc) (). 3
Because an offense level departure "must be based on a circumstance that is 'substantially in excess of that which is ordinarily involved in the offense of conviction,' " Thornton, 922 F.2d at 1494 (quoting U.S.S.G. Sec. 5K2.0) (emphasis in original), such a departure must be supported by some aggravating circumstance or otherwise extraordinary aspect "of the offense for which the defendant was convicted." Id. (emphasis omitted). For example, in United States v. Baker, 914 F.2d 208 (10th Cir.1990), cert. denied, 498 U.S. 1099, 111 S.Ct. 993, 112 L.Ed.2d 1077 (1991), we affirmed an upward departure to the defendant's base offense level attributable to his use of dynamite and his abduction of an...
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