U.S. v. Rivera

• Decision Date: 08 January 1993
• Docket Number: Nos. 92-1749,92-2167,s. 92-1749
• Citation: 994 F.2d 942
• Parties: , 6 Fed.Sent.R. 45 UNITED STATES, Appellee, v. Mirna RIVERA, Defendant, Appellant. UNITED STATES, Appellant, v. Robert ADAMO, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 942

994 F.2d 942

62 USLW 2015, 6 Fed.Sent.R. 45

UNITED STATES, Appellee, v. Mirna RIVERA, Defendant, Appellant.

UNITED STATES, Appellant, v. Robert ADAMO, Defendant, Appellee.

Nos. 92-1749, 92-2167.

United States Court of Appeals First Circuit.

Heard Jan. 8, 1993.

Decided June 4, 1993.

John M. Cicilline, Providence, RI, for appellant, Mirna Rivera.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and Zechariah Chafee, Asst. U.S. Atty., Providence, RI, were on brief, for appellee, U.S. in No. 92-1749.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and Seymour Posner, Asst. U.S. Atty., Providence, RI, were on brief, for appellant, U.S. in No. 92-2167.

Eugene V. Mollicone with whom William A. Dimitri, Jr. and Dimitri & Dimitri, Providence, RI, were on brief, for appellee, Robert Adamo.

Before BREYER, Chief Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

BREYER, Chief Judge.

Each of these two appeals concerns the district court's power to impose a sentence that departs from the Sentencing Guidelines. The first case involves Mirna Rivera, a single mother of three small children. Ms. Rivera was convicted of carrying about a pound of cocaine from New York to Providence. She appeals her thirty-three month sentence of imprisonment. She argues that the district court would have departed downward from the minimum thirty-three month Guidelines prison term but for the court's view that it lacked the legal "authority" to depart. She says that this view is legally "incorrect," 18 U.S.C. § 3742(f)(1), and she asks us to set aside her sentence.

The second case involves a union official, Robert Adamo, who embezzled about $100,000 from his union's Health and Welfare Fund. The district court departed downward from the fifteen to twenty-one month prison term that the Guidelines themselves would have required. Instead, the court imposed a term of probation without confinement. The court said that it was departing downward so that Mr. Adamo could continue to work and to make restitution to the Fund. The Government appeals. It argues that Adamo's circumstances are insufficiently unusual to warrant the departure.

We agree with the appellants in both cases. In our view, the district court sentencing Ms. Rivera held an unduly narrow view of its departure powers. The district court sentencing Mr. Adamo failed to analyze the need for departure in the way that the law requires. We consider both cases in this single opinion because doing so may help to illustrate an appropriate legal analysis for "departures." We shall first set forth our view of the portion of the law here applicable; and we shall then apply that law to the two appeals.

I Departures

The basic theory of the Sentencing Guidelines is a simple one. In order to lessen the degree to which different judges imposed different sentences in comparable cases, an expert Sentencing Commission would write Guidelines, applicable to most ordinary sentencing situations. See S.Rep. No. 225, 98th Cong., 2d Sess. 38, 51, 161 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3221, 3234, 3344. In an ordinary situation, the statutes, and the Guidelines themselves, would require the judge to apply the appropriate guideline--a guideline that would normally cabin, within fairly narrow limits, the judge's power to choose the length of a prison term. 18 U.S.C. § 3553(a), (b). Should the judge face a situation that was not ordinary, the judge could depart from the Guidelines sentence, provided that the judge then sets forth the reasons for departure. 18 U.S.C. § 3553(b), (c). A court of appeals would review the departure for "reasonableness." 18 U.S.C. § 3742. And, the Commission itself would collect and study both the district courts' departure determinations and the courts of appeals' decisions, thereby learning about the Guidelines' actual workings and using that knowledge to help revise or clarify the Guidelines for the future. See S.Rep. No. 225, 98th Cong., 2d Sess. 80, 151, reprinted in 1984 U.S.C.C.A.N. at 3263, 3334; U.S.S.G. Ch. I, Pt. A, intro. comment. 4(b).

This basic theory is embodied in statutory provisions and in the Guidelines themselves. We believe it important to refer to this theory in explaining our own view of the legal provisions concerning departures, and of how both district courts and courts of appeals are to apply them.

A The Statute

The Sentencing Statute itself sets forth the basic law governing departures. It tells the sentencing court that it

shall impose a sentence of the kind, and within the range ... established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines....

18 U.S.C. § 3553(b) (incorporating 18 U.S.C. § 3553(a)(4)) (emphasis added). The statute goes on immediately to create an exception for departures by adding that the sentencing court shall "impose" this Guidelines sentence

unless the court 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.

18 U.S.C. § 3553(b) (emphasis added). If the sentencing court makes this finding and sentences "outside the [Guidelines] range," it must

state in open court ... the specific reason for the imposition of a sentence different from that described [in the guidelines].

18 U.S.C. § 3553(c). The defendant may then appeal an upward departure, and the Government may appeal a downward departure. 18 U.S.C. § 3742(a), (b); United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990) (beneficiary of departure decision lacks standing "to complain that the deviation should have been greater"). On appeal, if

the court of appeals determines that the sentence ... is unreasonable, ... it shall state specific reasons for its conclusions and ... set aside the sentence and remand the case for further sentencing proceedings with such instructions as the court considers appropriate.

18 U.S.C. § 3742(f) (emphasis added).

The upshot, as we have said, is that in ordinary cases the district court must apply the Guidelines. In other cases, the court may depart provided that it gives reasons for the departure and that the resulting sentence is "reasonable." The statute refers to those "other cases," as those where "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." But, as we shall see in a moment, in many cases this statutory limitation, as a practical matter, will have limited impact, because the Commission itself admits that it has not adequately considered "unusual" cases.

B

The Guidelines

The Guidelines deal with departures in four basic ways.

1. Cases Outside the "Heartland." The Introduction to the Guidelines (which the Commission calls a "Policy Statement") makes an important distinction between a "heartland case" and an "unusual case." The Introduction says that the

Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes.

U.S.S.G. Ch. I, Pt. A, intro. comment. (4)(b). The Introduction goes on to say that when

a court finds an atypical case, one to which a particular guideline linguistically applies, but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

Id. The Introduction further adds that, with a few stated exceptions,

the Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.

Id.

The Introduction thus makes clear that (with a few exceptions) a case that falls outside the linguistically applicable guideline's "heartland" is a candidate for departure. It is, by definition, an "unusual case." And, the sentencing court may then go on to consider, in light of the sentencing system's purposes, see 18 U.S.C. § 3553(a), (and the Guidelines themselves) whether or not the "unusual" features of the case justify departure.

It should now be apparent why we believe the statutory language "adequately taken into consideration" sometimes has little practical importance. The statute says that the sentencing court considering a departure must ask whether the Sentencing Commission has "adequately taken into consideration" the aggravating or mitigating circumstance that seems to make a case unusual. But, the Commission itself has explicitly said that (with a few exceptions) it did not "adequately" take unusual cases "into consideration." Of course, deciding whether a case is "unusual" will sometimes prove a difficult matter (in respect to which particular facts, general experience, the Guidelines themselves, related statutes, and the general objectives of sentencing all may be relevant). But, once the court, see pp. 949-50, infra, has properly determined that a case is, indeed, "unusual," the case becomes a candidate for departure, for the Commission itself has answered the statutory "adequate consideration" question.

The initial version of the Guidelines, at the risk of redundancy, made this fact absolutely clear. It stated:

The new sentencing statute permits a court to depart from a guideline-specified sentence only when it finds "an aggravating or mitigating circumstance ... that was not adequately taken into consideration by the Sentencing Commission...." Thus, in principle, the Commission, by specifying that it had adequately considered a particular factor, could prevent a court from using it as grounds for departure. In this initial set of guidelines, however, the Commission does not so limit the courts' departure powers.

U.S.S.G. Ch. I, Pt. A, intro. comment. (4)(b) (Oct.1987) (emphasis added) (...