U.S. v. Sablan

• Decision Date: 23 January 1997
• Docket Number: No. 94-10534,94-10534
• Citation: 114 F.3d 913
• Parties: , 97 Cal. Daily Op. Serv. 4247, 97 Daily Journal D.A.R. 7118 UNITED STATES of America, Plaintiff-Appellee, v. David Tenorio SABLAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 913

114 F.3d 913

9 Fed.Sent.R. 330, 97 Cal. Daily Op. Serv. 4247,

97 Daily Journal D.A.R. 7118

UNITED STATES of America, Plaintiff-Appellee, v. David Tenorio SABLAN, Defendant-Appellant.

No. 94-10534.

United States Court of Appeals,

Ninth Circuit.

Submitted Jan. 23, 1997. ^*

Decided June 5, 1997.

William C. Bischoff, Agana, Guam, for defendant-appellant.

Mark E. Kondas, Assistant United States Attorney, Agana, Guam; Vicki S. Marani, United States Department of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Guam; John S. Unpingco, District Judge, Presiding. D.C. No. CR-94-00063-JSU.

Before: HUG, Chief Judge, BROWNING, SCHROEDER, REINHARDT, WIGGINS, BRUNETTI, KOZINSKI, LEAVY, FERNANDEZ, KLEINFELD and TASHIMA, Circuit Judges.

OPINION

LEAVY, Circuit Judge:

This appeal arises out of a district court's exercise of its discretion to depart upward from the applicable Guideline range in imposing sentence. The court found aggravating circumstances for its upward departure, as required by 18 U.S.C. § 3553(b) and (c). ¹ Pursuant to 18 U.S.C. § 3742(e), ² we must now determine whether the extent of that departure was unreasonable. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.

FACTS AND PRIOR PROCEEDINGS

On November 12, 1993, David Tenorio Sablan, a twenty-nine year old native and resident of Guam, was given a live hand grenade by his friend, Jon Russell "Chas" Simpson, and told to throw it inside the headquarters of the local police department in order to create a diversion for Simpson's robbery of a nearby store. Sablan did not quite follow Simpson's instructions; instead, he threw the grenade into the police parking lot adjacent to the local Post Office. The grenade bounced off of a car and rolled towards the Post Office where several individuals, including a woman who was nine months pregnant, were standing. Five people were injured in the blast, three of them severely. In addition, several automobiles and the exterior wall of the Post Office were damaged by flying shrapnel.

Sablan pleaded guilty to territorial charges in Guam Superior Court. Pursuant to the terms of his plea agreement, Sablan was to serve ten years in prison, the sentence to run concurrently with any federal sentence which might be imposed. Federal prosecution was then sought in order for Sablan to be able to serve his sentence in a mainland federal penitentiary, where he hoped to receive psychiatric treatment that apparently was unavailable in the island facility. On June 1, 1994, Sablan waived federal indictment and, pursuant to a written agreement, entered a guilty plea to a single-count information charging him with injuring persons by maliciously damaging a Post Office with an explosive in violation of 18 U.S.C. § 844(f). ³

The government agreed to recommend a sentence of ten years, and both parties to the plea bargain anticipated that the sentence imposed would be based on an adjusted offense level of 21 with a possible upward departure (pursuant to a subsequent motion filed by the government) to no more than level 32. The district court, however, departed upward to an offense level of 37 and imposed the (then) statutory maximum of twenty years' imprisonment, ⁴ to be followed by five years of supervised release. In addition, the court ordered Sablan to pay restitution in the amount of $19,928.72, and imposed a $50 special assessment fee. Sablan timely appealed from his sentence.

A panel of this court vacated the sentence, holding that the district court had abused its discretion by failing to gauge the extent of the departure by analogy to other Guideline provisions. See United States v. Sablan, 90 F.3d 362, 365-66 (9th Cir.1996). We granted rehearing en banc. United States v. Sablan, 101 F.3d 618 (9th Cir.1996).

ANALYSIS

I

It is common to say that the Sentencing Reform Act of 1984 (the "Act"), as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. §§ 991-98, curtailed the broad discretion formerly afforded district judges at sentencing. What is less often noted is that the Act also provided the courts of appeals with limited jurisdiction to review federal sentences where practically no such review had existed before (i.e., with respect to those sentences which fell within the limitations set forth in the governing statutes). See Dorszynski v. United States, 418 U.S. 424, 431, 94 S.Ct. 3042, 3046-47, 41 L.Ed.2d 855 (1974) ("once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end").

In the several years since the adoption of the Guidelines, most, if not all, of the Circuits developed multi-step approaches to reviewing sentences that involved departures from the Guidelines. See, e.g., United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.1989) (3-step analysis); United States v. Palinkas, 938 F.2d 456, 461 (4th Cir.1991) (4-step analysis), judgment vacated on other grounds, 503 U.S. 931, 112 S.Ct. 1464, 117 L.Ed.2d 610 (1992); United States v. Rodriguez, 882 F.2d 1059, 1067 (6th Cir.1989) (3-step analysis); United States v. Gaddy, 909 F.2d 196, 199 (7th Cir.1990) (similar test); United States v. Lang, 898 F.2d 1378, 1379-80 (8th Cir.1990) (similar test); United States v. White, 893 F.2d 276, 277 (10th Cir.1990) (similar test); United States v. Valle, 929 F.2d 629, 631 (11th Cir.1991) (per curiam) (similar test).

Our Circuit was no exception. In United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc), we rejected a five-step approach to reviewing departures in favor of a more streamlined three-part test, similar to that which had been announced earlier by the First Circuit in Diaz-Villafane. Under Lira-Barraza,

we would first review de novo whether the trial court had legal authority to depart under 18 U.S.C. § 3553(b), which requires the presence of an aggravating circumstance of kind or degree not adequately considered by the Commission in formulating the Guidelines. Id. at 746. Next, we would review for clear error the factual findings upon which the existence of the identified circumstance was based. Id. Finally we would review the extent of the departure from the applicable Guideline range for reasonableness under 18 U.S.C. § 3742(e)(3). Id. at 747.

United States v. Beasley, 90 F.3d 400, 402 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 533, 136 L.Ed.2d 418 (1996).

The Supreme Court has now changed all of this. In Koon v. United States, --- U.S. ----, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Court noted as a general proposition that "[a] district court's decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court." Id. at ----, 116 S.Ct. at 2046.

Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.

Id. at ----, 116 S.Ct. at 2047. In light of these considerations, the Court declared that a unitary abuse of discretion standard was to be used when reviewing departure decisions. Id. at ----, 116 S.Ct. at 2047-48.

By ruling as it did, the Court effectively rejected each of the multi-step approaches to reviewing sentencing departures that had been adopted by the various Circuits and "collapsed" the steps into a single inquiry. See United States v. Cali, 87 F.3d 571, 579-80 (1st Cir.1996) (acknowledging that Koon established a unitary abuse of discretion standard for reviewing departure decisions). Accord United States v. Rioux, 97 F.3d 648, 662-63 (2d Cir.1996); United States v. Romualdi, 101 F.3d 971, 973 (3d Cir.1996); United States v. Hairston, 96 F.3d 102, 106 (4th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 956, 136 L.Ed.2d 843 (1997); United States v. Wells, 101 F.3d 370, 372 (5th Cir.1996); United States v. Jones, 107 F.3d 1147, 1154 n. 6 (6th Cir.1997); United States v. Besler, 86 F.3d 745, 747 (7th Cir.1996); United States v. Field, 110 F.3d 587, 591-92 (8th Cir. Apr.7, 1997); United States v. Beasley, 90 F.3d at 402-403; United States v. Lowe, 106 F.3d 1498, 1501 (10th Cir.1997); United States v. Bernal, 90 F.3d 465, 467 (11th Cir.1996) (per curiam); United States v. Dyce, 91 F.3d 1462, 1472 (D.C.Cir.) (Tatel, J., concurring in denial of rehearing and rehearing en banc), cert. denied, --- U.S. ----, 117 S.Ct. 533, 136 L.Ed.2d 418 (1996). The Court noted, however, that even under this deferential abuse of discretion standard, a "district court by definition abuses its discretion when it makes an error of law." Koon, --- U.S. at ----, 116 S.Ct. at 2047.

In light of Koon 's mandate that a unitary abuse of discretion standard governs our review of departure decisions, we conclude that Lira-Barraza has been overruled. See Beasley, 90 F.3d at 403. See also United States v. Ripinsky, 109 F.3d 1436, 1445-46 (9th Cir. Mar.28, 1997) (citing Beasley ).

II

To say that departure decisions must be reviewed for an abuse of discretion, however, says nothing about what factors a district court should take into consideration when confronted with the question of whether or not to depart in a particular case. Fortunately, the Supreme Court spelled out just what those factors should be:

[A] sentencing court considering a departure should ask the following questions:

"1) What features of this case, potentially, take it outside the Guidelines' 'heartland' and make of it a special, or unusual, case?

"2) Has the Commission forbidden departures based on those features?

"3)...