U.S. v. Pressley

• Decision Date: 16 September 2003
• Docket Number: No. 02-10674.,02-10674.
• Citation: 345 F.3d 1205
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Thomas PRESSLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

345 F.3d 1205

UNITED STATES of America, Plaintiff-Appellee v. Thomas PRESSLEY, Defendant-Appellant.

No. 02-10674.

United States Court of Appeals, Eleventh Circuit.

September 16, 2003.

COPYRIGHT MATERIAL OMITTED

Sandra Michaels (Court-Appointed), Atlanta, GA, for Defendant-Appellant.

James T. Martin, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, KRAVITCH and GIBSON^*, Circuit Judges.

JOHN R. GIBSON, Circuit Judge:

Thomas Pressley appeals from the sentence of 360 months' imprisonment that the district court imposed upon him on remand from this court for resentencing. Pressley argues that on remand the district court erred in imposing consecutive sentences under United States Sentencing Guidelines § 5G1.2 and in declining to depart downward from the guidelines sentence on the ground that his offense level overstated the seriousness of his offense or that the conditions of his presentence confinement were extraordinarily harsh. We remand for the district court to exercise its discretion as to whether to depart on the basis of conditions of presentence confinement.

Pressley was indicted on May 3, 1995 and convicted by a jury on November 1, 1996 on nine counts, including one count of continuing criminal enterprise, two counts of conspiracy to possess cocaine with intent to distribute it, one count of distribution of cocaine, one count of possession of cocaine with intent to distribute it, one count of attempt to possess cocaine with intent to distribute it, and three counts of money laundering in connection with the purchase of three automobiles. The district court subsequently acquitted Pressley on the continuing criminal enterprise count and sentenced him on the remaining counts. The court found Pressley was responsible for between 50 and 150 kilograms of cocaine and gave a two-point upward adjustment for role in the offense. The court adjusted upward by two points for use of a weapon and two points for restraint of the victim, but because those two adjustments arose out of the same conduct, the court concluded that the two adjustments were double-counting and departed downward by two points, to arrive at a sentencing range of 292 to 365 months. The court sentenced Pressley to 292 months.

Pressley appealed, arguing that the district court erred in finding him responsible for 50 kilograms or more of cocaine. We held the finding was not clearly erroneous. United States v. Pressley, 228 F.3d 414, slip op. at 3 (11th Cir. July 24, 2000) (per curiam) (unpublished). The government cross-appealed the departure, and we reversed and remanded for resentencing without the departure. Id., slip op. at 6.

The guidelines range without the downward departure was 360 months to life. Because no count on which Pressley was convicted carried a 360-month sentence, in order to achieve the guidelines target sentence, U.S.S.G. § 5G1.2 required the court to run two of the sentences consecutively.

On remand, Pressley moved for a downward departure on the grounds that the guidelines sentence overstated the seriousness of Pressley's offense, that the conditions of his presentence confinement were harsh, and that consecutive sentences resulting in more jail time than the statutory maximum of any of his crimes violated the spirit of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The district court rejected Pressley's three arguments for departure and sentenced him to 360 months' imprisonment, which was the bottom of the guidelines range based on the court's findings from the first sentencing, without the downward departure that we had reversed. The court imposed 240 months, the statutory maximum, on Counts 2, 3, and 4, to run concurrently with each other, and 120 months on Counts 5, 6, 13, 14, and 15, to run concurrently with each other and consecutively to the sentences on Counts 2, 3, and 4.

I.

All three points on appeal involve the district court's refusal to depart downwardly from the guidelines sentence. The first point also involves interpretation of the guidelines and a legal argument that a provision of the guidelines violates the Constitution.

Generally, we review the district court's application of the guidelines to the facts for clear error. United States v. White, 335 F.3d 1314, 1317 (11th Cir.2003). We review de novo its determination that the provision in question does not violate the Constitution. See United States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir.2002) (review of constitutionality of statute), cert. denied, ___ U.S. ___, 123 S.Ct. 1484, 155 L.Ed.2d 231 (2003); United States v. Leasure, 319 F.3d 1092, 1096 (9th Cir.2003) (review of constitutionality of sentencing guidelines).

Review of guidelines departure decisions is governed by different rules depending on whether the district court has chosen to depart or not to depart. We may not review at all the district court's discretionary decision not to depart from the guidelines' sentencing range, but we review de novo the question of whether the district court erroneously believed it lacked authority to depart. United States v. Mignott, 184 F.3d 1288, 1290 (11th Cir. 1999) (per curiam). Not only do we examine whether the district court in fact believed it lacked authority to depart, but we also review whether, if the district court held such a belief, it was based on legal error. See United States v. Alfaro-Zayas, 196 F.3d 1338, 1342, 1344 (11th Cir.1999) (per curiam) (district court correctly concluded it had no authority to depart in particular case); United States v. Webb, 139 F.3d 1390, 1395 (11th Cir.1998) (district court concluded it had no authority to depart, but erred because guideline authorized departure). Deciding whether the district court was correct in a belief that it did not have authority to depart requires us to locate the boundaries of the district court's departure authority.

Once a proposed ground for section 5K2.0 departure has been put forth by the parties, the district court's departure decision entails three reviewable steps, see United States v. Miller, 146 F.3d 1281, 1284 (11th Cir.1998) (citing United States v. Hoffer, 129 F.3d 1196, 1201 (11th Cir. 1997)), at each of which the district court's authority to depart has an outer limit.¹

First, the sentencing court must decide whether the facts of the case take the case outside the heartland of the applicable guideline. Miller, 146 F.3d at 1285-86. In making the heartland determination, the district court must ascertain whether the presence of the proposed ground makes the case unusual, see United States v. Steele, 178 F.3d 1230, 1239-40 (11th Cir.1999) (lack of profit from crime is not sufficiently atypical to support downward departure because there are many drug cases where the defendant realizes little or no profit), and whether it is unusual in a way that ought to lead to a different sentence, see United States v. Pickering, 178 F.3d 1168, 1173 (11th Cir.1999) (district court erred in failing to "undertake a refined assessment of the facts of Pickering's case in order to demonstrate that it fell outside of the heartland in a way important to the statutory purposes of sentencing"); see also United States v. Hirsch, 280 F.3d 811, 814 (7th Cir.2002) ("Just because a case has features that are unusual does not mean that a departure is warranted. Rather the unusual features must suggest a rationale for a difference in the sentence prescribed by the Guidelines."). Both aspects of this determination are reviewable, see Steele, 178 F.3d at 1239-40 (reversing departures because proposed ground not atypical); United States v. Maung, 320 F.3d 1305, 1309-10 (11th Cir.2003) (reversing departure because avoiding collateral effect of conviction on alien's immigration status not ground for departure). Consequently, a district court would be correct to believe that it had no authority to depart in a case which was not atypical or not atypical in any way that ought to lead to a departure.

Second, the district court must determine whether the proposed ground for departure was adequately taken into account by the Sentencing Commission in formulating the guidelines. Hoffer, 129 F.3d at 1201; United States v. Melvin, 187 F.3d 1316, 1320 (11th Cir.1999). Only circumstances not adequately taken into account by the Commission justify a section 5K2.0 departure. 18 U.S.C. § 3553(b). The court should ask whether departures on the proposed ground are forbidden, encouraged, or discouraged. Koon v. United States, 518 U.S. 81, 95-96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). If forbidden, of course, the proposed ground cannot support a departure. Id. If encouraged and not taken into account, the proposed ground will support a departure in an appropriate case. Hoffer, 129 F.3d at 1200. If discouraged or if encouraged but already taken into account by the guidelines (as, for example, a specific offense characteristic), the proposed ground may serve as a basis for departure only if it exists to a degree or in a form that makes the case different from the ordinary case in which the proposed ground is present. Koon, 518 U.S. at 96, 116 S.Ct. 2035. If the ground is not mentioned as a basis for departure, the court must decide whether the factor was adequately taken into consideration in formulating the guidelines, looking at the "structure and theory of both the relevant individual guidelines and the Guidelines taken as a whole." United States v. Schlaen, 300 F.3d 1313, 1319 (11th Cir.2002) (quoting Koon, 518 U.S. at 96, 116 S.Ct. 2035), pet'n for cert. filed, No. 02-11073 (June 2, 2003). A district court lacks authority to depart in a case in which the proposed ground for departure was adequately taken into account by the Sentencing Commission. See Steele, 178 F.3d at 1239 (abuse of discretion to depart on ground that would negate enhancement provided by guidelines).

...