U.S. v. Rivera, Docket No. 97-1223

• Decision Date: 01 August 1998
• Docket Number: Docket No. 97-1223,No. 320,320
• Citation: 192 F.3d 81
• Court: U.S. Court of Appeals — Second Circuit
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee-Cross-Appellant, v. JORGE RIVERA, aka "G" or "Pekino," RALPH MORENO, aka "Ralphie," NELSON ESTREMERA, aka "Danger" and AMADOR RIVERA, aka "Beast," Defendants-Appellants, WILLIAM MENDEZ, aka "Pep," or "Pepperoni," Defendant-Appellant-Cross-Appellee. --

Page 81

192 F.3d 81 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee-Cross-Appellant, v. JORGE RIVERA, aka "G" or "Pekino," RALPH MORENO, aka "Ralphie," NELSON ESTREMERA, aka "Danger" and AMADOR RIVERA, aka "Beast," Defendants-Appellants, WILLIAM MENDEZ, aka "Pep," or "Pepperoni," Defendant-Appellant-Cross-Appellee.

Docket No. 97-1223

No. 320 -- August Term, 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: April 12, 1999

Decided: September 14, 1999

Defendant-appellant Nelson Estremera appeals from a judgment entered following a guilty plea in the United States District Court for the District of Connecticut (Dorsey, J.).

Affirmed.

[Copyrighted Material Omitted]

LEWIS H. CHIMES, New Haven, CT (Garrison, Phelan, Levin-Epstein Chimes & Richardson, P.C., on the brief), for Appellant Nelson Estremera.

JOHN H. DURHAM, Deputy United States Attorney, New Haven, CT (Stephen C. Robinson, United States Attorney for the District of Connecticut, Peter D. Markle and Anthony E. Kaplan, Assistant United States Attorneys, Joel B. Casey, Paralegal Specialist, on the brief), for Appellee-Cross-Appellant.

Before: VAN GRAAFEILAND, JACOBS and STRAUB, Circuit Judges.

JACOBS, Circuit Judge:

Defendant-appellant Nelson Estremera appeals from the judgment of the United States District Court for the District of Connecticut (Dorsey, J.), convicting him, following a plea of guilty, of one count of conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 841(a)(1) and 846. Estremera argues that when calculating his sentence, the district court erred by (i) failing to depart downward from the Sentencing Guidelines range by reason of Estremera's "violent and tumultuous childhood"; and (ii) departing upward as to the term of supervised release as a hedge against downward departures affecting the term of imprisonment.¹

DISCUSSION

A. Childhood Abuse

Section 5K2.0 of the Sentencing Guidelines provides the sentencing court with discretion to depart from the applicable Guidelines range if "'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.'" U.S.S.G.§ 5K2.0, p.s. (quoting 18 U.S.C. § 3553(b)). Section 5H1.3 cautions that "[m]ental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range, except as provided in Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)." U.S.S.G. § 5H1.3. Estremera contends that § 5H1.3 leaves open the possibility of a downward departure by reason of abuse he suffered as a child, and he seeks a remand for resentencing on the ground that the district court misunderstood its power to grant such a departure. See United States v. Haynes, 985 F.2d 65, 68 (2d Cir. 1993) (holding that district court's refusal to downwardly depart is appealable only when the court (i) misapplied the Guidelines; (ii) misapprehended its authority to depart; or (iii) imposed an illegal sentence).

We first consider the government's claim that Estremera forfeited his right to such a departure by failing to seek it at sentencing. Federal Rule of Criminal Procedure 51 provides that, in order to preserve an objection for appeal, a party must "make[] known to the court the action which that party desires the court to take . . . and the grounds therefor." Fed. R. Crim. P. 51.² We have held objections to be adequate under Rule 51 where they "fairly alert[] the court and opposing counsel to the nature of the claim." United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180 (2d Cir. 1990). "[T]o communicate the nature of a claim, a party does not have to present precise or detailed legal arguments." United States v. Sprei, 145 F.3d 528, 533 (2d Cir. 1998) (internal quotation marks omitted).

Estremera's argument at sentencing did not employ the term "mental or emotional conditions," or cite § 5H1.3 for the proposition that a departure for such a condition may be available. However, he did detail the circumstances of his "violent and tumultuous" upbringing, which (he claimed) "led to his extensive criminal history and involvement in gangs," and he sought a downward departure on that basis under § 5K2.0 of the Guidelines.

We think that Estremera's assertions fairly alerted the district court and the government to the nature of his claim, i.e., that he was a candidate for leniency because he was warped by episodes of childhood abuse. See, e.g., Rodriguez-Gonzalez, 899 F.2d at 180 ("Although appellant failed to couch his objection in the specific terms 'double jeopardy,' the nature of his argument fairly alerted both the court and the prosecutor to his constitutional claim. . . ."). We are reluctant to treat as forfeiture Estremera's invocation of § 5K2.0 (under which he sought relief), rather than § 5H1.3 (which, citing (inter alia) § 5K2.0, limits such relief to circumstances other than the ordinary). Moreover, "the responses of the court and the government indicate that they were cognizant of the nature of [the] claim." Rodriguez-Gonzalez, 899 F.2d at 180. We therefore conclude that Estremera preserved this argument for appellate review.

As noted, the Guidelines foreclose any downward departure for lack of youthful guidance. See U.S.S.G.§ 5H1.12 ("Lack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds for imposing a sentence outside the applicable guideline range."). Several of our sister circuits have nevertheless held that a downward departure may be appropriate in cases of extreme childhood abuse. See United States v. Pullen, 89 F.3d 368, 372 (7th Cir. 1996), cert. denied, 519 U.S. 1066 (1997); United States v. Clark, 8 F.3d 839, 845-46 (D.C. Cir. 1993); United States v. Roe, 976 F.2d 1216, 1218 (9th Cir. 1992); United States v. Vela, 927 F.2d 197, 199 (5th Cir. 1991); see also United States v. Deigert, 916 F.2d 916, 919 (4th Cir. 1990). Explicitly or implicitly, these opinions have relied on an inference drawn by negative pregnant from § 5H1.3, which states that "[m]ental and emotional conditions are not ordinarily relevant" in considering departures. U.S.S.G. § 5H1.3, p.s. (emphasis added).

It seems beyond question that abuse suffered during childhood--at some level of severity--can impair a person's mental and emotional conditions. See Roe, 976 F.2d at 1218 (stating that "victims of [child] abuse frequently experience profound feelings of inadequacy, isolation, confusion, low self-esteem, and guilt" and that "[e]ach of these effects constitutes either a mental or emotional condition"); Vela, 927 F.2d at 199 (recognizing that "[a] defendant's family history of incest or related treatment" can "cause[] [the] defendant to incur a mental or emotional condition that affects criminal conduct"). Moreover, although under § 5H1.3 a defendant's mental and emotional condition is "ordinarily irrelevant," we have held that it can be taken into account at sentencing in situations that are "extraordinary." See United States v. Lara, 905 F.2d 599, 603 (2d Cir. 1990); see also United States v. Barton, 76 F.3d 499, 501-02 (2d Cir. 1996) (recognizing authority to depart for "extraordinary mental or emotional condition" but remanding because "the record thus far developed d[id] not support the Court's grounds for a departure"). We conclude that in extraordinary circumstances (the parameters of which we leave to future development), district courts may properly grant a downward departure on the ground that extreme childhood abuse caused mental and emotional conditions that contributed to the defendant's commission of the offense.

Seeking to avoid a remand, the government maintains that we should presume that the district court was aware of its ability to depart under § 5H1.3, and should therefore conclude that the court's failure to so depart resulted from its finding that the circumstances of Estremera's upbringing do not warrant such a departure.

We generally "apply a presumption that district judges understand the much-discussed processes by which they may, in circumstances permitted by law, exercise discretion to depart from the sentence range prescribed by the Guidelines calculus." United States v. Brown, 98 F.3d 690, 694 (2d Cir. 1996) (per curiam). However, that presumption can be overcome. "Caution is warranted, for example, in cases where the judge's option turns on an obscure point of law," United States v. Rivers, 50 F.3d 1126, 1132 (2d Cir. 1995), or where there is "clear evidence of a substantial risk that the judge misapprehended the scope of his departure authority," Brown, 98 F.3d at 694. That risk may arise where the ground for departure was recently adopted in this Circuit. See United States v. Ekhator, 17 F.3d 53, 55-56 (2d Cir. 1994) (remanding for resentencing where, inter alia, at the time of sentencing, the ground of departure--although approved in other circuits--had been recognized by this Circuit only recently); Brown, 98 F.3d at 694 n.6 (construing Ekhator to stand for the proposition that remand may be warranted where "the sentencing judge's comments . . . were 'at best ambiguous,' and the basis of th[e] departure . . . had only just been approved by this Court at the time of sentencing" (emphasis added)).

A fortiori, we cannot assume that a district court appreciated a principle that (as here) is announced on appeal. At the time of sentencing, this Circuit had not said whether, under § 5K2.0 and subject to § 5H1.3, a court may downwardly depart in cases of extreme childhood abuse. That result is not compelled by the text of § 5H1.3, which implies the availability of a downward departure by reason of "mental and emotional conditions" in extraordinary circumstances but does not specify childhood abuse (or any other potential cause) as such a circumstance. There...