U.S. v. Rhodes

• Decision Date: 19 June 1998
• Docket Number: No. 97-3131,97-3131
• Citation: 145 F.3d 1375
• Parties: UNITED STATES of America, Appellee, v. Robert RHODES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1375

145 F.3d 1375

330 U.S.App.D.C. 305

UNITED STATES of America, Appellee, v. Robert RHODES, Appellant.

No. 97-3131.

United States Court of Appeals District of Columbia Circuit.

Argued March 13, 1998.

Decided June 19, 1998

Appeal from the United States District Court for the District of Columbia (No. 91cr00329-01).

Lois Godfrey Wye, appointed by the court, argued the cause for appellant. With her on the briefs was John P. Dean, appointed by the court.

Lisa C. Baskerville, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher and Thomas C. Black, Assistant U.S. Attorneys.

Before: WALD, SILBERMAN, and TATEL, Circuit Judges.

Opinion for the Court by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge SILBERMAN.

TATEL, Circuit Judge:

At resentencing following remand required by Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), appellant sought downward departure based on his rehabilitative efforts undertaken while serving his original sentence. Finding departure foreclosed under the Sentencing Guidelines, the district court denied appellant's request. Because we find nothing in the Guidelines prohibiting departures based on post-conviction rehabilitation, we reverse and remand for the district court to determine whether appellant's rehabilitative efforts, when compared to the rehabilitative efforts of all defendants, were so exceptional as to warrant departure.

I

A jury convicted appellant Robert Rhodes of two counts of possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a) (1994), and one count of using or carrying a firearm in connection with a drug trafficking crime, 18 U.S.C. § 924(c) (1994). The district court sentenced Rhodes to concurrent 121-month terms of imprisonment for his drug possession convictions. For the firearm conviction, the district court sentenced him to a consecutive sixty-month term. Because of the section 924(c) conviction, the district court declined to apply section 2D1.1(b)(1)'s two-level enhancement for possession of a dangerous weapon, U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 2D1.1(b)(1) (1997). See id. § 2K2.4 backg'd (section 924(c) conviction precludes the application of "any specific offense characteristic for ... firearm ... use ... or possession").

After this court affirmed Rhodes' conviction, United States v. Rhodes ("Rhodes I"), 62 F.3d 1449, 1450-51 (D.C.Cir.1995), the Supreme Court issued Bailey v. United States, 516 U.S. at 143, 116 S.Ct. 501 (section 924(c) requires "active employment" of a firearm for conviction), granted Rhodes' subsequently filed petition for certiorari, vacated Rhodes I, and remanded for reconsideration in light of Bailey. Rhodes v. United States, 517 U.S. 1164-65, 116 S.Ct. 1562, 134 L.Ed.2d 662 (1996). We in turn reversed Rhodes' section 924(c) conviction and remanded his remaining convictions to the district court "for possible resentencing taking into account the provisions of § 2D1.1(b)(1)." United States v. Rhodes ("Rhodes II"), 106 F.3d 429, 433 (D.C.Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 248, 139 L.Ed.2d 177 (1997).

At resentencing, Rhodes sought downward departure, arguing that during his six and a half years in prison, he had taken "every opportunity" to improve his circumstances, entering drug rehabilitation, taking vocational and college-level courses, consistently getting above-average or far-above-average work reports, and repaying his assessment early. Finding no authority to depart based on post-conviction rehabilitation, the district court rejected Rhodes' request.

Again appealing, Rhodes now contends that the district court misperceived its departure authority. Although we review district court departure decisions for abuse of discretion, Koon v. United States, 518 U.S. 81, 96-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), "whether a given factor could ever be a permissible basis for departure is a question of law which we address de novo." United States v. Sun-Diamond Growers, 138 F.3d 961, 975 (D.C.Cir.1998) (citing Koon, 518 U.S. at 100, 116 S.Ct. 2035).

II

We begin with the government's contention that Rhodes II limited the district court to applying section 2D1.1(b)(1)'s weapon-possession enhancement, thus precluding Rhodes from seeking departure. Had Rhodes II remanded "solely to apply" or even "to apply" section 2D1.1(b)(1), we would agree. But Rhodes II contains no such prescriptive language. It merely remanded for "possible resentencing taking into account the provisions of § 2D1.1(b)(1)." Rhodes II, 106 F.3d at 433 (emphasis added). Nothing in this open-ended language limits the district court to the mechanical application of the Guidelines' weapon enhancement.

The government argues that our rejection of de novo resentencing in United States v. Whren, 111 F.3d 956, 959-60 (D.C.Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1059, 140 L.Ed.2d 120 (1998), barred Rhodes' departure argument in the district court. In Whren we held that unless we "expressly direct[ ] otherwise," at resentencing occasioned by remand, sentencing courts may consider "only such new arguments or new facts as are made newly relevant by the court of appeals' decision--whether by the reasoning or by the result." Id at 960. Relying on this language, the government argues that Whren limits resentencing to facts existing at the time of original sentencing. We disagree. Whren considered only whether a defendant could seek departure based on facts available at the time of initial sentencing (defendant's presence within 1,000 feet of a school), not whether, as here, he could do so based on facts not even existing at the time of initial sentencing (postconviction rehabilitation). Indeed, Whren itself said that a "defendant should not be held to have waived an issue if he did not have a reason to raise it at his original sentencing." Id. As the government acknowledges, Rhodes "could not have argued [at initial sentencing] for a departure based upon his post-sentence rehabilitative efforts since these efforts had not yet taken place." Appellee's Br. at 9. Moreover, consideration of post-initial sentencing events, in those rare circumstances in which such events may become relevant, neither contravenes Whren's concern with ensuring that parties receive fair notice of their opponent's arguments at initial sentencing nor undermines its goal that district courts "resolve all material issues ... when the record is fresh in mind." Whren, 111 F.3d at 960. Rhodes thus never waived his argument that the Sentencing Guidelines allow such departures, an issue to which we now turn.

III

Recognizing a sentencing court's "obligation to consider all the relevant factors in a case and to impose a sentence outside the guidelines in an appropriate case," S.REP. NO. 98-225, at 52 (1983), the Sentencing Reform Act of 1984 gave district courts authority to depart from an applicable Guidelines range if they find "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission," 18 U.S.C. § 3553(b). The Sentencing Commission, acknowledging that in drafting the Guidelines it had not adequately taken into consideration "unusual" cases, U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b); see Koon, 518 U.S. at 93, 116 S.Ct. 2035, allowed district courts to depart in "atypical case[s], [where] a particular guideline linguistically applies but where conduct significantly differs from the norm." U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b). See generally id. § 5K2.0 (discussing departures under the Guidelines).

In approaching departure requests, sentencing courts operate under a set of clearly defined principles. As Koon directs, if the district court identifies features of a case that " 'potentially ... take it outside the Guidelines' "heartland" and make of it a special, or unusual, case,' " Koon, 518 U.S. at 95, 116 S.Ct. 2035 (quoting United States v. Rivera, 994 F.2d 942, 949 (1st Cir.1993) (Breyer, C.J.)), it must determine whether " 'the Commission [has] forbidden departures based on those features[.]' " Id. (quoting Rivera, 994 F.2d at 949). Koon requires district courts to ask this question because Congress gave the Sentencing Commission, not courts, authority categorically to prohibit consideration of sentencing factors.

[F]or the courts to conclude a factor must not be considered under any circumstances would be to transgress the policymaking authority vested in the Commission.

....

...Congress created the Commission to "establish sentencing policies and practices for the Federal criminal justice system," and Congress instructed the Commission, not the courts, to "review and revise" the Guidelines periodically. As a result, the Commission has assumed that its role is "over time [to] ... refine the guidelines to specify more precisely when departures should and should not be permitted." Had Congress intended the courts to supervise the Commission's treatment of departure factors, we expect it would have said so in a clear way. It did not, and we will not assume this role.

Id. at 106-09, 116 S.Ct. 2035 (internal citations omitted). If, considering "only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission," 18 U.S.C. § 3553(b), the district court determines that the Commission prohibited consideration of a given factor, that ends the matter--the court may not depart. But if nothing in the Guidelines prohibits consideration of the factor, then Koon directs further analysis to determine the appropriate departure standard, an issue we return to in section IV. Applying Koon to this case, we begin by asking whether the Commission prohibited consideration of post-conviction rehabilitation. Koon itself largely answers this question. Pointing out that the Commission "chose to prohibit consideration...