U.S. v. Shoupe

• Decision Date: 12 March 1993
• Docket Number: No. 92-7204,92-7204
• Citation: 988 F.2d 440
• Parties: UNITED STATES of America, Appellee, v. Kenneth SHOUPE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 440

988 F.2d 440

61 USLW 2611

UNITED STATES of America, Appellee, v. Kenneth SHOUPE, Appellant.

No. 92-7204.

United States Court of Appeals, Third Circuit.

Argued Nov. 5, 1992.

Decided March 12, 1993.

James J. West, U.S. Atty., Barbara Kosik Whitaker (Argued), Asst. U.S. Atty., Scranton, PA, for appellee.

Melinda C. Ghilardi (Argued), First Asst., Federal Public Defender, Scranton, PA, James V. Wade, Federal Public Defender, M.D. Pa., Harrisburg, PA, for appellant.

Before: BECKER, STAPLETON and LAY, ^* Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This is the second time we review defendant Kenneth Shoupe's sentence under the Sentencing Guidelines. See United States v. Shoupe, 929 F.2d 116, 118-19 (3d Cir.) (Shoupe I ) (vacating and remanding for resentencing), cert. denied, --- U.S. ----, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991). Here we are asked to decide whether a departure under Guideline § 4A1.3 ¹ for cases in which the criminal history category "significantly over-represents the seriousness of a defendant's criminal history" is subject to the limitation of 18 U.S.C. § 3553(b) and Guideline § 5K2.0. Section § 3553(b) and Guideline § 5K2.0 provide that departures from the Guidelines sentencing range may be founded only on factors "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b).

We disagree with the district court's conclusion that § 4A1.3 is limited by 18 U.S.C. § 3553(b) and § 5K2.0. The criminal history category departure under § 4A1.3 is specifically provided for in the Guidelines and is, in our view, conceptually distinct from the provision in § 5K2.0 for departures based on factors not accounted for in the Guidelines. We therefore conclude that 18 U.S.C. § 3553(b) and § 5K2.0 have no bearing on § 4A1.3. Since the district court's legal error on this issue tainted the sentencing proceedings, we will vacate and remand for resentencing.

I.

Shoupe pled guilty to one count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). Based on the probation officer's determination that Shoupe was a career offender, the presentence report (PSI) recommended that he be assigned a base offense level of 32 and a criminal history category of VI. See U.S.S.G. § 4B1.1; Shoupe I, 929 F.2d at 118-19. ² With a two-level downward adjustment for acceptance of responsibility, see U.S.S.G. § 3E1.1, the PSI gave Shoupe a final offense level of 30. The Guidelines sentencing range for a defendant in criminal history category VI with an offense level of 30 is 168 to 210 months. ³

The district court agreed with the criminal history category and offense level calculations in the PSI but determined that "strict application of the Guidelines would be irrational" in light of several mitigating factors, including Shoupe's age and immaturity at the time of two of his prior offenses, the short time span between those prior offenses, his cooperation with authorities in the present case, and his family responsibilities. See Shoupe I, 929 F.2d at 119. For these reasons, the court departed downwards under § 5K2.0, which allows departure for factors not adequately accounted for in the Guidelines. The court reduced Shoupe's offense level from 30 to 22 and imposed an 84 month sentence, the minimum sentence within the Guidelines range for offense level 22 and criminal history category VI. See id.

On appeal by the government, this court vacated Shoupe's sentence and remanded, holding that the mitigating factors relied on by the district court were not proper grounds for a general departure under § 5K2.0 since each of those factors had been adequately taken into account by the Commission in formulating the Guidelines. Shoupe I, 929 F.2d 116. ⁴ In dissent, Judge Rosenn argued that, although the various factors relied on by the district court may not have been proper grounds for a § 5K2.0 departure, the departure granted by the court should have been understood as a specific Guidelines-authorized departure under § 4A1.3 for cases where the defendant's criminal history category significantly over-represents the seriousness of his criminal history. See id. at 121-25 (Rosenn, J., dissenting).

Understandably, the majority in Shoupe I did not interpret the district court's 84 month downward departure as having been derived from § 4A1.3: neither the parties nor the district court had mentioned § 4A1.3 at or before sentencing, and the procedure followed by the court to arrive at the 84 month sentence (keeping Shoupe in criminal history category VI but lowering his offense level from 30 to 20) was nothing like the procedure outlined in § 4A1.3. See U.S.S.G. § 4A1.3 ("In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable."). ⁵

On remand, Shoupe argued that his career offender status, which put him in criminal history category VI, significantly over-represented the seriousness of his criminal history, and that he therefore should be granted a criminal history departure pursuant to § 4A1.3. Some of the factors Shoupe cited in support of a § 4A1.3 departure were the same as the mitigating factors that this court in Shoupe I found to be improper grounds for a general departure under § 5K2.0, namely that Shoupe was only eighteen years old when two of the three prior offenses were committed, that those two offenses were committed in quick succession, and that they were committed approximately fourteen years before the sentencing offense. See supra n. 4. However, believing that our decision in Shoupe I precluded it from considering those factors as a basis for any type of departure, the district court concluded that it lacked authority to grant a § 4A1.3 departure. ⁶

Accordingly, the court imposed a sentence of 168 months, the minimum sentence within Shoupe's original Guidelines range. Shoupe then brought this appeal pursuant to 18 U.S.C. § 3742(a)(2), which provides for appellate review of a final sentence which was imposed under an allegedly incorrect application of the Sentencing Guidelines.

II.

Section 5K2.0 of the Guidelines and 18 U.S.C. § 3553(b) provide that the district court may depart from the sentencing range arrived at under the Guidelines if 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). Section 4A1.3 of the Guidelines provides, in part, that if "reliable information indicates" that "a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes," the district court may grant a "departure" by adjusting the criminal history category down to a more appropriate level. See U.S.S.G. § 4A1.3.

Shoupe argues that the district court erroneously superimposed the requirements of 18 U.S.C. § 3553(b) and § 5K2.0--that a departure from the Guidelines range may be based only on factors not accounted for in the Guidelines--onto § 4A1.3. Shoupe contends that because the departure under § 4A1.3 for significant over-representation of the defendant's criminal history is specifically provided for in the Guidelines, it is analytically distinct from general, extra-Guidelines departures under § 5K2.0 and 18 U.S.C. § 3553(b). The government responds that because § 4A1.3 provides for a "departure," the statutory authority for its promulgation must be 18 U.S.C. § 3553(b) and that the district court was therefore correct in concluding that it could not consider a § 4A1.3 departure based on the very factors that were found in Shoupe I to have been adequately accounted for within the Guidelines. We disagree with the government.

The position and role of § 4A1.3 within the Guidelines sentencing scheme differentiates that provision from extra-Guidelines departure pursuant to § 5K2.0 and 18 U.S.C. § 3553(b). Section 4A1.3 is an integral part of Chapter Four of the Guidelines, which is entitled "Criminal History and Criminal Livelihood" and governs the role of criminal history in the calculation of the Guidelines sentencing range. Chapter Four establishes a system for classifying the severity of a defendant's prior criminal conduct so that recidivism will be fairly and accurately taken into account in calculating the sentence. See U.S.S.G. Chapter Four, Part A, Introductory Commentary ("To protect the public from further crimes, the likelihood of recidivism and future criminal behavior must be considered."). Under § 4A1.1, "points" for various types of prior criminal conduct are added to determine the defendant's criminal history category (increasing in seriousness from I to VI). Under § 4B1.1, defendants (such as Shoupe) who meet the three-part definition of "career offender" are automatically given the highest criminal history category of VI, even if the cumulation of points under § 4A1.1 would designate a lower criminal history category. See supra nn. 2-3.

At the same time, the Commission recognized that, because of the infinite variations of criminal backgrounds, precise calibration of criminal history is impossible. Section 4A1.3 was incorporated into Chapter 4 to accommodate this reality. As the Fourth Circuit explained:

"Criminal history" is, relatively, one of the most flexible concepts in the guidelines. While it is possible to classify the severity of current federal offenses with a reasonable degree of precision, mathematically accurate evaluation of the countless permutations of criminal history, involving offenses high and petty committed in numerous jurisdictions, would be at best unwieldy. The Sentencing Commission recognized this...