U.S. v. Snyder, 97-1233

• Citation: 136 F.3d 65
• Decision Date: 08 January 1998
• Docket Number: No. 97-1233,97-1233
• Parties: UNITED STATES of America, Appellant, v. Eric Gray SNYDER, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 65

136 F.3d 65

UNITED STATES of America, Appellant, v. Eric Gray SNYDER, Defendant, Appellee.

No. 97-1233.

United States Court of Appeals First Circuit.

Heard Jan. 8, 1998.

Decided Feb. 12, 1998.

James F. Lang, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for the United States.

Victoria L. Nadel, Boston, MA, for defendant, appellee.

Murray Kohn, Brighton, MA, on brief for Massachusetts Association of Criminal Defense Lawyers, amicus curiae.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

SELYA, Circuit Judge.

In this single-issue sentencing appeal, the government implores us to set aside defendant-appellee Eric Gray Snyder's sentence. The district court predicated that sentence on a disparity between the sentence mandated for the offense of conviction by the federal sentencing guidelines and the sentence Snyder likely would have received had state authorities prosecuted him. See United States v. Snyder, 954 F.Supp. 19, 22 (D.Mass.1997) (memorandum explicating reasons for sentence). We thus confront a question of novel impression in this circuit: Is federal/state sentencing disparity a permissible basis for a downward departure? We answer that question in the negative. Consequently, Snyder must be resentenced.

I. BACKGROUND

We touch lightly upon the facts of the case as they are only obliquely relevant to the legal problem that this appeal presents. On January 10, 1995, a known drug user, John Hawk, told a Boston police officer, William Doogan, that Snyder had robbed him and his paramour at gunpoint and stolen a number of Valium tablets. Hawk further stated that Snyder, driving a black Honda and accompanied by Frank Diaferio (a reputed drug dealer known to Doogan), was headed toward Roslindale. Doogan knew that Diaferio resided at 17 Murray Hill Road in Roslindale and he immediately arranged for police surveillance of that locus. When Snyder and Diaferio arrived in the black Honda, the officers found a loaded .32 caliber pistol in a locked briefcase in the car's trunk. Doogan placed Snyder under arrest. During a search at the station house, police officers recovered 26 Valium tablets from Snyder's pants pocket.

Initially, Massachusetts authorities charged Snyder under Mass. Gen. L. ch. 269, § 10(a) (1990) with unlawfully carrying a firearm, an offense punishable by a 2 1/2-to-5-year prison term. When a federal grand jury later returned an indictment that charged Snyder with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (1994), Massachusetts dropped the state charge.

In due course, a federal trial jury found Snyder guilty. The probation office thereafter prepared a presentence investigation report (the PSI Report). The PSI Report indicated that Snyder's extensive criminal history rendered him subject to the sentencing enhancement provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1994) (ACCA). Employing the corresponding sentencing guideline, USSG § 4B1.4 (Nov.1995), the PSI Report projected the guideline sentencing range (GSR) to be 262 to 327 months.

Judge Harrington conducted a three-day sentencing proceeding. On October 9, 1996, Snyder's counsel and the prosecutor sparred over Snyder's insistence that he was not subject to the ACCA because certain of his prior convictions did not qualify as predicate offenses thereunder. See 18 U.S.C. § 921(a)(20) (1994) (delineating various exclusions from the taxonomy of eligible predicate offenses). In the course of that hearing, Judge Harrington expressed reservations about the steepness of the projected sentencing range. Afterwards, he issued a memorandum that noted his "grave concern" with the "gross disparity" between the GSR and the punishment that Snyder would have received had state authorities pursued and obtained a conviction on the originally charged state offense. In that memorandum, the judge made no bones about his disdain for "the unfettered and unreviewable discretion of the United States Attorney" to prosecute in federal court the " 'local' offense of carrying a firearm." He concluded by scheduling a further hearing to address the issues "whether this disparity in sentences and the de facto selective prosecution of the defendant raise any constitutional concerns and whether the combination of the above two issues justify [sic] a downward departure under USSG § 5K2.0."

At the resumed hearing, held on December 12, 1996, Judge Harrington reiterated his belief that sentencing Snyder to a 21-year prison term would constitute a "gross violation of the principles of justice." Engaging in what some might consider wishful thinking, the judge then predicted the demise of the sentencing guidelines I said yesterday to the U.S. Attorney's Office, this type of de facto, selective prosecution continues. And when there is a disparity of over 20 years for the same offense, ... the guidelines are going to be dismantled because the federal judiciary will no longer, no longer put up with it. It's going to be dismantled.

Judge Harrington convened the third, and final, sentencing session on January 14, 1997. He ruled that Snyder fell within the ambit of the ACCA and that USSG § 4B1.4 therefore applied. He computed the GSR to be 235 to 293 months. ¹ Judge Harrington then departed downward pursuant to USSG § 5K2.0 and sentenced Snyder to an incarcerative term of 180 months (the mandatory minimum under the ACCA). He premised the departure squarely on the ground that the federal/state sentencing disparity created by interleaved federal and state criminal jurisdiction over Snyder's conduct "is contrary to the very objective of and theory upon which the Guidelines are grounded and therefore takes this case out of the heartland and makes it atypical." Snyder, 954 F.Supp. at 22. ² The sentencing court's rescript repeatedly condemns a system that cedes broad discretion to prosecutors to determine who will be charged federally--and, thus, exposed to potentially harsher sentences--when an offender's conduct violates both federal and state criminal codes. See, e.g., id. at 21 (disparaging "disparate sentencing treatment" brought about "by the exercise of absolute prosecutorial discretion"); id. at 22 ("For where unbridled power, unchecked by judicial scrutiny, can by fiat determine that a certain person from among many similarly situated shall serve such a disparate sentence for the same offense, then the balance of governmental powers has become distorted and the liberty of every individual is held hostage to the potential tyranny of the Executive Branch.").

II. STANDARD OF REVIEW

We deal here only with the government's sentencing appeal. ³ We review a district court's decision to depart from the guideline sentencing range for abuse of discretion. See Koon v. United States, 518 U.S. 81, 96-100, 116 S.Ct. 2035, 2046-47, 135 L.Ed.2d 392 (1996). Our examination proceeds stepwise. First, we ascertain whether the guidelines permit the sentencing court's stated ground for departure. If so, we examine the record to discern the adequacy of the factual support that undergirds the departure. Finally, if the departure rests on satisfactory record support, we assess the reasonableness of its magnitude in light of the factual predicate. See United States v. Dethlefs, 123 F.3d 39, 43-44 (1st Cir.1997). Here, the government concedes that the departure decision stands or falls on the first prong of the test.

Whether the guidelines countenance a particular ground for departure is a question of law. See Koon, 518 U.S. at 98-100, 116 S.Ct. at 2047. While this legal question technically falls within Koon 's unitary abuse-of-discretion rubric, "[a] district court by definition abuses its discretion when it makes an error of law." Id. We determine the existence vel non of legal error without special deference to the sentencing court's views. See United States v. Brennick, 134 F.3d 10, 13 (1st Cir.1998).

III. ANALYSIS

We turn now to the validity of the district court's stated ground for departure. The twin stanchions on which our analytic framework rests are the generic departure guideline, USSG § 5K2.0 (a guideline that flows directly from the congressional command embodied in 18 U.S.C. § 3553(b) (1994)) and the Court's opinion in Koon.

Section 5K2.0 permits a sentencing court to deviate from the range indicated by an otherwise applicable guideline computation if it 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 considering whether an appropriate "aggravating or mitigating circumstance" exists, the court first must ask "[w]hat features of th[e] case, potentially, take it outside the Guidelines' 'heartland' and make of it a special, or unusual, case[.]" Koon, 518 U.S. at 95, 116 S.Ct. at 2045 (quoting United States v. Rivera, 994 F.2d 942, 949 (1st Cir.1993)). Judge Harrington believed that he had identified such a feature. In his view, the disparity between the sentence that Snyder would have received if convicted under Massachusetts law and the sentence mandated by USSG § 4B1.4 was a mitigating circumstance that brought Snyder's case outside the heartland of armed career criminal cases and justified a downward departure. See Snyder, 954 F.Supp. at 22. It falls to us to test this conclusion.

In mounting this inquiry, we do not write on a pristine page. Although the Sentencing Commission does not expressly proscribe federal/state sentencing disparity departures, five federal appellate courts have taken the measure of such departures. All have held that federal/state sentencing disparity is never a valid basis for a downward departure. See United States v. Searcy, 132 F.3d 1421, 1422 (11th Cir.1998); United States v. Deitz, 991 F.2d 443, 447-48 (8th Cir.1993); United States v. Haynes, 985 F.2d 65, 69-70 (2d Cir.1993); ...