U.S. v. Simmons, 03-13199.

• Decision Date: 07 May 2004
• Docket Number: No. 03-13199.,03-13199.
• Citation: 368 F.3d 1335
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony SIMMONS, a.k.a. Michael Arthur Green, a.k.a. Antonio White, a.k.a. Antonio Green, Defendant-Appellant,
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1335

368 F.3d 1335

UNITED STATES of America, Plaintiff-Appellee, v. Anthony SIMMONS, a.k.a. Michael Arthur Green, a.k.a. Antonio White, a.k.a. Antonio Green, Defendant-Appellant,

No. 03-13199.

United States Court of Appeals, Eleventh Circuit.

May 7, 2004.

C. Dorian Britt (Court-Appointed), Savage & Turner, Savannah, GA, for Defendant-Appellant.

Amy Lee Copeland, Savannah, GA, for Plaintiff-Appellee.

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

Before TJOFLAT and HILL, Circuit Judges, and MILLS^*, District Judge.

TJOFLAT, Circuit Judge:

I.

On October 25, 2002, Anthony Simmons was arrested for violating probation. At the time, he was carrying a loaded 9mm semiautomatic handgun and over two dozen small bags of cocaine. Simmons pled guilty to carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i)¹ in exchange for having several other charges against him dropped. This statute carries a mandatory minimum sentence of five years (60 months). See also U.S.S.G. § 2K2.4(a)(2) (2001) ("[I]f the defendant ... was convicted of violating... Section 924(c) ... of title 18, United States Code, the guideline sentence is the minimum term of imprisonment required by statute.").

The district court chose to make an upward departure beyond this 60 month period and sentenced Simmons to 160 months in prison. The court explained that Simmons "has at least two prior felony convictions for a crime of violence or a controlled substance offense that would have resulted in a career offender designation." The court noted that, had the defendant been eligible to be sentenced as a career offender, "his guideline range of imprisonment would have been 262 to 327 months." Consequently, "[b]ased upon [the] defendant's prior convictions, two of which would have resulted in a career offender designation," the judge concluded that an upward departure of an additional 100 months was warranted.

On appeal, Simmons makes three arguments. First, he claims that the district court erred in considering the 2002 Guidelines, rather than basing his sentence entirely on the 2001 Guidelines. Second, he contends that the district court should not have made an upward departure. Finally, he argues that even if an upward departure was warranted, the extent of this particular upward departure was clearly unreasonable. We reject these claims and affirm his sentence.

II.

We begin by determining whether the sentencing court should have applied the 2001 Guidelines, which were in effect at the time Simmons committed his offense, or the 2002 Guidelines, which were in effect on the date of his sentencing. Federal law requires judges presumptively to apply the sentencing Guidelines as they exist at the time of sentencing. 18 U.S.C. § 3553(a) ("The court, in determining the particular sentence to be imposed, shall consider ... the kinds of sentence and the sentencing range ... set forth in the guidelines ... that ... are in effect on the date the defendant is sentenced...."). The Constitution's Ex Post Facto Clause, however, prevents the Government from imposing additional penalties for crimes that have already been committed. See U.S. Const. art. I. § 9, cl. 3 ("No ... ex post facto Law shall be passed."); Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (holding that "[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed" is an "ex post facto law[], within the words and the intent of the prohibition"). Consequently, although courts must presumptively apply the Guidelines as they exist at the time of sentencing, they may not do so where those Guidelines would lead to imposition of a harsher penalty than that to which the defendant was subject at the time of the offense. In such cases, the Guidelines applicable at the time of the offense must be applied. United States v. Simon, 168 F.3d 1271, 1272 n. 1 (11th Cir.1999) ("We apply the version of the Sentencing Guidelines and commentary in effect on the date of sentencing, unless a more lenient punishment would result under the Guidelines version in effect on the date the offense was committed." (citation omitted)); see also U.S.S.G. § 1B1.11(b)(1) (2001) ("If the court determines that use of the Guidelines Manual in effect [when] the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.").

In this case, both parties agree that the 2001 Guidelines would result in a more lenient sentence for Simmons than the 2002 Guidelines. Consequently, the 2001 Guidelines are applicable. Because the presentence investigation report was based on, and the judge applied, the 2001 Guidelines, no error was committed in this regard.

III.

Having identified the correct edition of the Guidelines to apply, we now turn to whether an upward departure was warranted in this case. When a defendant claims that an upward departure "is not authorized under [the Sentencing Reform Act of 1984]; or is not justified by the facts of the case," 18 U.S.C. § 3742(e)(3)(B)(ii)-(iii), we review the district court's factual findings for clear error, id. § 3742(e)(4), and its legal conclusions de novo, United States v. Williams, 340 F.3d 1231, 1234 n. 8 (11th Cir.2003) ("Because the statute is silent as to the standard of review for `pure' questions of law, we review them under our customary de novo standard."). We begin in Section A by examining general principles applicable to upward departures; Section B applies these principles to the instant case.

A.

To determine the propriety of the district court's upward departure, it is necessary to identify the type of departure it was and examine the restrictions our precedents place on such departures. Departures are classified as guided or unguided. A guided departure is one based on a factor about an offense or a defendant that the Guidelines expressly discuss. United States v. Smith, 289 F.3d 696, 710 (11th Cir.2002) ("Guided departures are those departures specifically provided for in the Guidelines."). There are four ways in which the Guidelines might discuss a particular factor. First, the factor might be one that a guideline, or a policy statement or application note in the Guidelines, encourages courts to consider that has not already been taken into account by the specific guideline under which the defendant is being sentenced. Encouraged factors may always be used as the basis for upward departures under such circumstances. See, e.g., United States v. Kimball, 291 F.3d 726, 734 (11th Cir.2002); United States v. Lewis, 115 F.3d 1531 (11th Cir.1997). For example, U.S.S.G. § 5K2.3 (2001) encourages courts to make upward departures if the victims of a crime suffer unusually serious psychological injuries. The guideline establishing the offense levels for eavesdropping and other invasion-of-privacy offenses, U.S.S.G. § 2H3.1 (2001), does not provide for enhancements based on such considerations or otherwise take this factor into account. Consequently, if the victim of such an offense suffers unusually severe psychological injury, a district court is fully justified in imposing an upward departure.

Second, the Guidelines may expressly encourage courts to base upward departures on a particular factor, but that factor may already have been taken into account by the guideline under which the defendant is being sentenced. For example, U.S.S.G. § 2A2.2 (2001) sets base the offense level for aggravated assault at 15, and directs courts to add an additional 5 offense levels if a firearm is discharged during the crime.² Section 5K2.6 encourages courts to grant an upward departure where the defendant uses a weapon in the commission of a crime. Although this section makes the use of a firearm an encouraged basis for an upward departure, it is a factor that the underlying aggravated assault guideline, § 2A2.2, already takes into consideration. Similarly, another guideline encourages courts to depart upwards if "significant physical injury resulted" from a crime. U.S.S.G. § 5K2.2 (2001). Because the crime of aggravated assault is itself based on the infliction of serious physical injury, this encouraged factor is already taken into account by the underlying guideline. A district court may grant an upward departure in cases such as these, based on an encouraged factor that is already contemplated by the Guidelines under which the defendant is being sentenced, only where the factor is "present to an exceptional degree" not contemplated by the Guidelines. Lewis, 115 F.3d at 1538.

Third, a factor might be a discouraged basis for departure. For example, U.S.S.G. § 5H1.4 (2001) states, "Physical condition or appearance, including physique, is not ordinarily relevant in determining whether" a departure may be warranted. As with encouraged factors that have already been taken into account by an underlying guideline, a discouraged factor may be used as the basis for an upward departure only if "it is present to an exceptional degree." Lewis, 115 F.3d at 1538; see also United States v. Kim, 364 F.3d 1235, 1239 n. 5, 2004 WL 615743, at *7 (11th Cir.2004) ("The difference between discouraged factors and encouraged factors already taken into account by the applicable guideline is purely semantic, not legal.").

Finally, there are some factors that district courts are simply prohibited from using as the basis for an upward departure. For example, U.S.S.G. § 5K2.19 (2001) states, "Post-sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant ... are not an appropriate basis for a downward departure when resentencing the defendant for that offense." Departures based on such factors are automatically invalid. United States v. Hoffer, 129 F.3d 1196, 1201 (11th Cir.1997) ("If the...