U.S. v. Richison
| Decision Date | 11 April 1990 |
| Docket Number | No. 89-10080,89-10080 |
| Citation | 901 F.2d 778 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Allen J. RICHISON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Deana S. Spencer, Sp. Asst. Federal Public Defender, Michael R. Levine, Federal Public Defender, Honolulu, Hawaii, for defendant-appellant.
Mark J. Bennett, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.
Appeal from the United States District Court for the District of Hawaii.
Before FARRIS, PREGERSON and RYMER, Circuit Judges.
Richison appeals from the sentence imposed under the Sentencing Guidelines after entry of a guilty plea to one count of unarmed bank robbery. The district court adopted the offense level twenty-two set forth in the presentence report, without an adjustment for acceptance of responsibility and without objection by the defendant, and departed upward to seventy-two months from the applicable Guideline range of forty-one to fifty-one months, finding that criminal history Category I underrepresented the seriousness of the defendant's past criminal behavior, and that his use of alcohol to excess and continued cocaine abuse were aggravating factors. Richison contends that the court should have taken an independent look at whether he was entitled to a two point reduction for acceptance of responsibility, and that the departure was unlawful and unreasonable because the court relied on circumstances that the Sentencing Commission had considered.
We find no error in the district court's adopting the same offense level calculation offered in the presentence report or in departing based on convictions which were not included in the criminal history category. However, we vacate and remand to afford the district court an opportunity to explain why Category IV rather than some other category most adequately reflects the defendant's criminal history, and to state reasons why this defendant's physical condition, which ordinarily is not relevant, should be a ground for departure in this particular case.
The presentence report put defendant's offense level at twenty-two. The initial report recommended a two-point reduction for acceptance of responsibility, but the final report deleted this recommendation. Richison made no objection to the calculation and did not argue for a reduction at the time of sentencing. After noticing this appeal, defendant realized that the issue had not been addressed and moved for reconsideration. The district court denied the motion, noting that counsel had been given an opportunity to object but had not done so and that, in any event, defendant had not made a showing that he was entitled to such a reduction.
Richison claims that the district court's failure to use its "unique position" to make an independent finding as to whether he was entitled to the two-point reduction for acceptance of responsibility was an incorrect application of the Sentencing Guidelines.
United States Sentencing Commission, Guidelines Manual, Sec. 3E1.1, comment. (n. 5) (Nov.1989), states that "[t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility" and that "the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation." Because application of U.S.S.G. Sec. 3E1.1 is a factual issue, we accept the district court's findings unless they are clearly erroneous. See United States v. Spraggins, 868 F.2d 1541, 1543 (11th Cir.1989) (per curiam); 18 U.S.C.A. Sec. 3742(e) (West Supp.1989).
Pursuant to the Guidelines the offense level is to be reduced two levels "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. Sec. 3E1.1(a). This court has held that the defendant should bear the burden of proof if he is attempting to lower the offense level. United States v. Howard, 894 F.2d 1085, 1089-90 (9th Cir.1990). Richison had an opportunity to make objections to the presentence report and to raise a challenge to its presentation of facts. Viewing the record as a whole we cannot say that the district court erred in establishing the offense level at twenty-two.
The presentence report placed defendant in criminal history Category I. Richison's criminal conduct included three prior convictions, only one of which was counted in his criminal history because the others were too old 1; thirteen arrests not resulting in conviction; four criminal cases pending at the time of the instant offense; and long-standing cocaine, alcohol, and heroin addictions.
The presentence report noted, and the district court found, that Category I did not adequately reflect the seriousness of Richison's past criminal conduct. The judge also stated that Richison's three prior convictions, and his excessive use of alcohol and continued drug abuse, were aggravating factors that warranted an upward departure. 2 At offense level twenty-two and criminal history Category I, the Guideline range would have been forty-one to fifty-one months. The court found that a Category IV, and a term of seventy-two months in the middle of that category, more adequately reflected the defendant's past criminal history.
United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir.1990), establishes a five step process for appellate review of departures from the Sentencing Guidelines:
(1) whether the district judge adequately identified the "aggravating or mitigating circumstance" ...;
(2) whether the identified circumstance actually existed;
(3) whether the circumstance was adequately taken into consideration by the Sentencing Commission;
(4) if not, whether the circumstance should result in departure; and,
(5) whether the extent or degree of departure was unreasonable.
Step One. The district judge adequately identified the aggravating circumstances, relying specifically on Richison's three prior convictions, excessive use of alcohol, and cocaine abuse.
Step Two. Richison acknowledges his prior convictions, his alcohol and cocaine abuse, and the fact that he faces trial on three state of Hawaii charges. Richison also admits that his prior criminal history is directly related to his drug and alcohol dependency. Thus, there was no error in finding that these circumstances existed in this case.
Step Three. Our next step is to determine whether the grounds identified by the district court as justification for departure were adequately taken into consideration by the Sentencing Commission. Questions of law, such as a trial court's...
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