U.S. v. Russell, 88-1824
| Decision Date | 02 March 1989 |
| Docket Number | No. 88-1824,88-1824 |
| Citation | 870 F.2d 18 |
| Parties | UNITED STATES of America, Appellee, v. Robert Donald RUSSELL, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Owen S. Walker, Boston, Mass., for defendant, appellant.
Victor A. Wild, Asst. U.S. Atty., Boston, Mass., for appellee.
Before CAMPBELL, Chief Judge, COFFIN, Senior Circuit Judge, and BOWNES, Circuit Judge.
Defendant-appellant Robert D. Russell pleaded guilty to one count of bank larceny. The district court sentenced him to the minimum possible sentence within the guidelines issued pursuant to the Sentencing Reform Act--four months in a community treatment facility. Russell appeals on the ground that the district court may not have recognized that it had the power to impose a sentence below the guidelines.
Both appellant and the government agree that the district court may depart from the guidelines--whether upward or downward--in appropriate cases. In the Sentencing Reform Act, Congress made this power of the district court explicit:
The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) [the sentencing guidelines] 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. Sec. 3553(b) (1988). See also United States v. Correa-Vargas, 860 F.2d 35, 40 (2d Cir.1988) ().
Appellant Russell argues to us, as he did to the district court, that his case was a proper one for consideration of a sentence below the guideline minimum. Russell, the driver of a Wells Fargo armored truck, had no criminal record. A bank had mistakenly handed Russell's partner, the truck's messenger, an extra money bag containing $80,000. The men initially yielded to temptation and decided to keep the money. A week later, however, they admitted what they had done. Russell returned all the money that he had kept, and cooperated fully in the investigation of the crime. Russell argued that the district court should impose a sentence below the guideline minimum because Russell's conduct was a single episode of "aberrant behavior," it involved no planning, and Russell cooperated fully with the government and returned all the money.
In imposing sentence, the district court expressed sympathy for the predicament that faced Russell and his compatriot when an extra $80,000 was literally placed in their hands. The court stated:
I recognize the limitations on the financial resources of these two gentlemen.
I recognized that, when I first took into consideration what happens when $80,000 suddenly falls in your lap, and you're not a rich person. That certainly didn't fail to dawn upon me.
Sentencing Hearing Transcript at 38. The court took these circumstances into account in imposing sentence, noting "that's one reason why I'm at the bottom of the guideline possibility of four to ten months." Id.
The district court did not make explicit, however, whether it considered the possibility of imposing a sentence below the guideline range by virtue of the arguably atypical nature of Russell's conduct. * The Sentencing Commission made clear that departures are permitted in atypical cases, at the sentencing judge's discretion:
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. 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.
United States Sentencing Commission Guidelines Manual Introduction 4(b) Ch. 1, Part A, (rev. ed. 1988). Such "aberrant behavior" may involve, almost by definition, factors "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines," 18 U.S.C. Sec. 3553(b), and thus may justify departures in appropriate cases. See Guidelines Manual Ch. 1, Part A, Introduction 4(d) ("The Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures").
Appellant contends that two statements by the district court betray the misconception that the court lacked the power to make such a departure. At one point during the sentencing hearing, the court stated:
It's my opinion that I should not go downward from the lowest level of the guideline here, that I am required, in my reading of the Act--and as I say, I'm not of opinion, but I am required--and I think Mr. Wild [the Assistant United States Attorney] feels the same way--to impose the four months at a minimum.
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