U.S. v. Russell

• Decision Date: 20 November 1990
• Docket Number: No. 89-8920,89-8920
• Citation: 917 F.2d 512
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Paul Richard RUSSELL, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 512

917 F.2d 512

UNITED STATES of America, Plaintiff-Appellant, v. Paul Richard RUSSELL, Defendant-Appellee.

No. 89-8920.

United States Court of Appeals Eleventh Circuit.

Nov. 20, 1990.

Julie E. Carnes, Appellate Chief, Gerrilyn G. Brill, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellant.

Michael A. Kessler, Atlanta, Ga., (court-appointed), for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON and COX, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

The government appeals from a sentence imposed under the Sentencing Guidelines. Defendant Paul Richard Russell pled guilty to two counts: (1) armed bank robbery, in violation of 18 U.S.C. Sec. 2113(a) & (d); and (2) using or carrying a deadly weapon during the commission of a crime of violence, in violation of 18 U.S.C. Sec. 924(c). In the original sentencing hearing, the district judge ruled unconstitutional the Sentencing Reform Act of 1984, Pub.L. 98-473, 98 Stat. 1837, 1987 (1984), and imposed sentence under pre-existing law. After the Supreme Court upheld the constitutionality of the guidelines in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), we vacated the original sentence and remanded for sentencing under the guidelines. See United States v. Russell, 880 F.2d 419 (11th Cir.1989).

Upon remand, the district court reimposed virtually the same aggregate sentence: (1) for armed bank robbery, one year of probation; (2) for using or carrying a deadly weapon during commission of a crime of violence, five years of imprisonment as mandated by 18 U.S.C. Sec. 924(c), and an additional five years of supervised release, to run consecutively to the probation imposed under the armed robbery count. The sentence under Sec. 924(c) is unchallenged. The sentence of one-year probation for the count of armed robbery represented an 11-level departure from the applicable guideline range of 24-30 months. The government appeals the sentence of one-year probation for armed robbery as an unwarranted departure from the applicable guideline range. 18 U.S.C. Sec. 3553(b). We agree and accordingly VACATE the sentence and REMAND for resentencing within the applicable guideline range.

I.

Defendant Russell and his co-defendant, Leslie R. Ramey, drove in Russell's car to a bank in Marietta, Georgia. Though he had resisted earlier suggestions by Ramey that the two commit armed robbery, Russell agreed on this occasion, at least partially influenced by a smaller-than-expected paycheck and the need for additional money during the Christmas season. Upon urging by Ramey, Russell agreed to carry Ramey's gun into the bank and commit the robbery, while Ramey waited in the getaway car. Russell has said that he had not expected to carry a gun into the bank and that he insisted that the bullets be removed before he committed the robbery. Russell walked into the bank and pulled out the revolver, demanding that the tellers fill a bag with money. After receiving the cash, Russell left the bank. Dye bombs that the tellers had placed in the bag were activated outside the bank. The smoke and fumes from the dye bombs alerted a citizen who wrote down the tag number of the getaway vehicle, leading to the capture of both Russell and Ramey.

At the first sentencing hearing, Russell introduced the testimony of Dr. Randi Most, a clinical psychologist, who had evaluated Russell while Russell was incarcerated. Dr. Most diagnosed defendant as having a "dependent personality disorder," characterized by dependent and submissive behavior. Dr. Most further testified that persons afflicted with this disorder often volunteer to do unpleasant things to win approval, but the doctor noted that Russell was not retarded and could distinguish between right and wrong. The district court concluded that Russell's offense of armed robbery "would not have come about except for his dependent relationship with the co-defendant," though the court did accept Russell's concession that he also was influenced by his desire for additional money during the Christmas season.

After we vacated the first sentence--imposed under pre-existing law because the district judge had found the Sentencing Guidelines to be unconstitutional--the district judge reimposed virtually the same sentence, ¹ though the judge asserted that he was acting pursuant to the guidelines. Applying the Sentencing Guidelines then in effect to the armed robbery count, the district court properly calculated an adjusted offense level of 17, a criminal history category of I, and an appropriate guideline range of 24-30 months. ² Nevertheless, the district judge departed downward 11 levels in imposing only one year of probation, accepting the defendant's argument that his offensive conduct was causally related to his dependent personality disorder.

II.

On appeal the government challenges the district court's authority to depart from the guidelines in this case and, alternatively, the degree to which the court departed from the applicable guideline range of 24-30 months. Because we conclude that the district court was unauthorized to depart from the applicable guideline range, we need not address the degree of the departure.

One of the main goals of the Sentencing Reform Act of 1984 was the achievement of a high degree of uniformity in federal sentencing, to "narrow[ ] the wide disparity in sentences imposed by different federal courts for similar conduct by similar offenders." U.S.S.G. Ch. 1, Pt. A, Introduction 3; see 28 U.S.C.A. Sec. 991(b)(1)(B) (West 1985). The guidelines represent the Sentencing Commission's attempt to carry out Congress's aims; and "[i]t follows inexorably that, to implement the guidelines properly, courts must bear these goals in mind. Among other things, courts must remember the importance which Congress, and the Commission, attached to ensuring that like situations are treated alike." United States v. Williams, 891 F.2d 962, 963 (1st Cir.1989). Along these lines, we recently have stressed the Commission's intention that "sentencing courts [ ] 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. 1, Pt. A, Introduction 4(b) (quoted in United States v. Gonzalez-Lopez, 911 F.2d 542, 549 (11th Cir.1990) (Cox, J.)).

Congress has authorized sentencing outside the applicable guideline only if "the court finds 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." 18 U.S.C.A. Sec. 3553(b) (West Supp.1990). As a result, "[t]he appropriateness of departure ... hinges upon a determination of what circumstances the Commission considered in formulating the guideline[s] in question." Gonzalez-Lopez, 911 F.2d at 549 (citing United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989)); see also United States v. Williams, 891 F.2d at 964; United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989). Whether this case presents circumstances inadequately considered by the Commission in formulating the pertinent guidelines is "a question of law, hence, we exercise our plenary powers of review." Gonzalez-Lopez, 911 F.2d at 549 (citing United States v. Ryan, 866 F.2d 604, 610 (3d Cir.1989)).

The district judge pointed to no specific justifications within the guidelines for his decision to depart; but, some potential sources of authorization are discernible from the sentencing transcript, as well as from arguments by defendant and the government. We will discuss these in turn.

A. Defendant's Dependent Personality Disorder

The district judge indicated that he imposed only one year of probation for the armed robbery count because, at least in part, "the offense would not have come about except for [Russell's] dependent relationship with the co-defendant." Defendant contends that departure from the guidelines was authorized because of his dependent personality disorder, either as duress or coercion under section 5K2.12, or as a factor unconsidered by the Commission. The government argues that personality disorders like that afflicting the defendant were adequately considered by the Commission in sections 5H1.3 and 5K2.13.

1. Coercion or Duress

Though departure is justified only by the existence of mitigating circumstances inadequately considered by the Commission in formulating the guidelines, the Commission has provided sentencing courts with assistance in determining what types of factors it was unable to consider adequately in setting offense levels for substantive offenses. See U.S.S.G. Sec. 5K2.0, p.s. Among those factors are coercion and duress, addressed in Sec. 5K2.12, which holds in relevant part as follows:

If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may decrease the sentence below the applicable guideline range.... Ordinarily coercion will be sufficiently serious to warrant departure only when it involves threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency. The Commission considered the relevance of economic hardship and determined that personal financial difficulties and economic pressures upon a trade or business do not warrant a decrease in sentence.

U.S.S.G. Sec. 5K2.12, p.s. Defendant contends that departure was authorized "under Sec. 5K2.12 based upon psychological coercion or duress."

Section 5K2.12 makes clear, however, the Commission's intention that a sentencing court ordinarily may depart on the basis of coercion and duress only "when it involves a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful conduct of a third part...