U.S. v. Rivers, 820

• Decision Date: 20 March 1995
• Docket Number: D,No. 820,820
• Citation: 50 F.3d 1126
• Parties: UNITED STATES of America, Appellee, v. Virgil P. RIVERS, Defendant-Appellant. ocket 94-1344.
• Court: U.S. Court of Appeals — Second Circuit

Page 1126

50 F.3d 1126

UNITED STATES of America, Appellee, v. Virgil P. RIVERS, Defendant-Appellant.

No. 820, Docket 94-1344.

United States Court of Appeals Second Circuit.

Argued Jan. 19, 1995.

Decided March 20, 1995.

Georgia J. Hinde, New York City, for defendant-appellant.

Julie E. Katzman, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., Elizabeth A. Lesser, Asst. U.S. Atty., on the brief), for appellee.

Before NEWMAN, Chief Judge, MINER and CABRANES, Circuit Judges.

JON O. NEWMAN, Chief Judge:

This appeal presents Sentencing Guidelines issues concerning the selection of a criminal history category and the extent of a permissible departure for a defendant classified as a career offender. The issues arise on an appeal by Virgil Rivers from the June 17, 1994, judgment of the District Court for the Eastern District of New York (Raymond J. Dearie, Judge) convicting him, on his guilty plea, of bank robbery and firearm offenses. Rivers contends that the District Judge incorrectly counted his prior offenses when calculating his criminal history category and determining his career offender status. He also contends that the District Judge adopted an erroneous view of the scope of his discretion to depart downward from the sentence applicable under the career offender guideline. Because the record is ambiguous with respect to both contentions, we remand to the District Court for clarification.

Background

In September 1991, Rivers participated in an armed robbery of a Bowery Savings Bank branch in Brooklyn, from which $11,250 was stolen. After his arrest, Rivers pleaded guilty to participating in the bank robbery, in violation of 18 U.S.C. Sec. 2113(d) (1988), and to possessing and displaying a firearm during the course of the robbery, in violation of 18 U.S.C. Sec. 924(c) (1988).

In determining the sentence, the District Judge recognized that a key determinant of the applicable sentence range was the proper treatment of the defendant's prior criminal record. That record consisted of four prior convictions for robberies committed over a span of several months in 1974, 17 years before the Bowery Savings Bank robbery. The presentence report summarized the conduct underlying his prior offenses as follows:

(1) On July 15, 1974, Rivers acted as a lookout while a confederate robbed a bank. After this robbery, Rivers was arrested but released on bail.

(2) On September 1, 1974, Rivers and three others robbed a victim at gunpoint.

(3) On September 9, 1974, Rivers and two others robbed a store at gunpoint. Again, Rivers was arrested but released on bail.

(4) On December 23, 1974, Rivers participated in an armed robbery in which petty cash and a car were stolen.

After his arrest for the December 23 robbery, Rivers was tried on federal charges for the July 15, 1974, bank robbery, for which he was sentenced to 18 years' imprisonment. Thereafter, he pled guilty to state charges for the three other 1974 robberies, for which he was sentenced to three concurrent 5-year terms of imprisonment, to be served in federal custody concurrent to the federal term imposed for the bank robbery. Rivers was subsequently paroled from federal custody in June 1982, and discharged from parole in June 1987.

Judge Dearie concluded that Rivers's four prior sentences were imposed in "unrelated cases," U.S.S.G. Sec. 4A1.2(a)(2), and that they should therefore be counted separately in determining his criminal history category, id., resulting in 12 criminal history points, id. Sec. 4A1.1(a), and a criminal history category of V. In addition, Rivers's four prior offenses, if considered "unrelated," classified him as a career offender, id., Sec. 4B1.1. This classification automatically increased his criminal history category from V to VI, and raised his offense level from 23 to 34. A three-level downward adjustment for acceptance of responsibility produced an adjusted offense level of 31. In criminal history category VI, offense level 31 yielded a sentencing range, for the robbery, of 188 to 235 months. After adding the mandatory five-year consecutive sentence under 18 U.S.C. Sec. 924(c), Rivers's Guidelines sentencing range was 20 years and 8 months to 24 years and 7 months.

After a hearing, Judge Dearie determined that Rivers's criminal history category overrepresented his likelihood of recidivism, and he therefore made a downward departure by reducing the criminal history category from VI to IV. With an adjusted offense level of 31 and the statutory five-year consecutive term, the sentencing range after the departure was 17 years and 7 months to 20 years and 8 months. Judge Dearie sentenced Rivers to the lowest point in this range, 17 years and 7 months.

Discussion

Rivers contends that the District Court applied the wrong legal standard in finding that the sentences for his 1974 offenses were (a) imposed in "unrelated cases" and (b) should therefore be counted separately, and that, as a result, he was improperly placed in criminal history category VI and classified as a career offender. Rivers also contends that, even if the prior offenses were unrelated and he was properly classified as a career offender, the District Judge mistakenly believed that, with respect to the sentencing table, his departure authority was limited to a "horizontal" reduction in the criminal history category and that he did not have discretion to make a "vertical" reduction below the offense level specified by the career offender guideline. We examine each of these arguments in turn, and then briefly discuss procedures on remand.

I. Counting Prior Offenses

A defendant's criminal history category and his career offender status both depend on the number of offenses the defendant has committed and been convicted of within a specified period prior to the commission of the offense for which he is currently being sentenced. See U.S.S.G. Secs. 4A1.1, 4A1.2, 4B1.1, 4B1.2. For these purposes, prior sentences are counted separately if they were imposed in "unrelated cases," but are generally treated as one sentence if they were imposed in "related cases." See id. Secs. 4A1.2(a)(2), 4B1.2(3). The sentence in a current case therefore depends significantly on whether sentences in prior cases are found to be "related" or "unrelated." In Rivers's case, if his four 1974 offenses were all "related," his criminal history category would be III (three points for one of the convictions, id. Sec. 4A1.1(a), plus one point for each of the other three, id. Sec. 4A1.1(f)), and he would not be classified as a career offender. His Guidelines range would then be 41 to 51 months. If, on the other hand, all of his prior offenses were "unrelated," as the District Court found, then his criminal history category would initially be V (three points for each of the four convictions, id. Sec. 4A1.1(a)). ¹ More significantly, because he would have committed at least two prior "unrelated" violent (or drug-based) felonies, he would also be classified as a career offender, which would increase his criminal history category to VI and his adjusted offense level to 31. See id. Sec. 4B1.1. His Guidelines sentencing range would then be 188 to 235 months (15 years, eight months, to 19 years, seven months)--more than four times longer than if the prior offenses were "related." ²

Application note 3 to section 4A1.2 ("Note 3") provides guidance for determining whether prior sentences were imposed in "related cases." In its current form--which was in effect when Rivers was sentenced--Note 3 reads: "Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense)." Id. Sec. 4A1.2, comment. (n.3) (1994). In view of this clear language, we have held that "whether an intervening arrest was present constitutes a threshold question that, if answered in the affirmative, precludes any further inquiry to determine whether the prior sentences were imposed in related cases," United States v. Boonphakdee, 40 F.3d 538, 544 (2d Cir.1994). Three of Rivers's prior offenses were separated by intervening arrests.

However, the current version of Note 3 did not become effective until November 1, 1991, several months after the Bowery Savings Bank robbery for which Rivers is being sentenced. See U.S.S.G.App. C, amend. 382. At the time Rivers committed his offense, Note 3 read:

Related Cases. Cases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing. The court should be aware that there may be instances in which this definition is overly broad and will result in a criminal history score that underrepresents the seriousness of the defendant's criminal history and the danger that he presents to the public. For example, if the defendant commits a number of offenses on independent occasions separated by arrests, and the resulting criminal cases are consolidated and result in a combined sentence of eight years, counting merely three points for this factor will not adequately reflect either the seriousness of the defendant's criminal history or the frequency with which he commits crimes. In such circumstances, the court should consider whether departure is warranted.

Id. Sec. 4A1.2, comment. (n. 3) (1990) (amended Nov. 1, 1991). In this pre-amendment form, Note 3 did not automatically treat offenses separated by arrests as "unrelated." Indeed, the unamended Note expressly envisioned the possibility that offenses separated by intervening arrests might be "related" under the standard articulated in its first sentence, though it suggested that an upward departure might be warranted if deeming such offenses "related," at least because of consolidation, underrepresented the seriousness of a defendant's criminal history. Thus, the 1991 amendment to Note 3 substantially...