U.S. v. Sturgis, 1367

• Decision Date: 15 February 1989
• Docket Number: No. 1367,D,1367
• Citation: 869 F.2d 54
• Parties: UNITED STATES of America, Appellee, v. Tyrone STURGIS, Defendant-Appellant. ocket 88-1131.
• Court: U.S. Court of Appeals — Second Circuit

Page 54

869 F.2d 54

UNITED STATES of America, Appellee, v. Tyrone STURGIS, Defendant-Appellant.

No. 1367, Docket 88-1131.

United States Court of Appeals Second Circuit.

Argued July 22, 1988.

Decided Feb. 15, 1989.

Jonathan W. Feldman, Rochester, N.Y. (Geraci & Feldman, Rochester, N.Y., of counsel), for defendant-appellant.

Bradley Tyler, Asst. U.S. Atty., Rochester, N.Y. (Dennis C. Vacco, U.S. Atty. W.D.N.Y., Rosemary G. Roberts, Asst. U.S. Atty., of counsel), for appellee.

Before ALTIMARI and MAHONEY, Circuit Judges, and KORMAN, District Judge. ^*

ALTIMARI, Circuit Judge:

This appeal involves defendant-appellant's post-guilty plea motion challenging the constitutionality of the Sentencing Reform Act of 1984, as amended, 18 U.S.C. Sec. 3551 et seq. and 28 U.S.C. Secs. 991-98 (the "Act"), as well as the sentence imposed under the Act by Judge Larimer of United States District Court for the Western District of New York which constituted an upward departure from the applicable "Criminal History Category" of the new Sentencing Guidelines. Although we agree with appellant that the district court erred in declining to consider his motion, given the Supreme Court's recent decision in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), appellant's claim has now been resolved in favor of the Act's constitutionality. As for the propriety of the sentence imposed under the Act, we conclude that upward departure was a reasonable exercise of the district court's discretion and, therefore, affirm the judgment of conviction and sentence in all respects.

BACKGROUND

Defendant-appellant Tyrone Sturgis pleaded guilty to bank robbery in violation of 18 U.S.C. Sec. 2113(a). The bank robbery took place on November 13, 1987 at the Columbia Banking Federal Savings and Loan Association in Rochester, New York. Following his arrest, defendant entered into plea negotiations with the government. A plea agreement was reached in which defendant agreed to waive indictment and plead guilty to one count of a five-count felony information, and the government in turn agreed, inter alia, to recommend to the district court that certain upward adjustments not be made to the sentencing guideline applicable in defendant's case. However, as part of the plea agreement, defendant also stipulated to the facts of a second bank robbery for which he had been arrested and charged in order to allow that crime to be computed in defendant's offense level score under the Act. Under the government's recommendation, the sentencing range as per the guidelines would have been 37-46 months. See United States Sentencing Commission, Sentencing Guidelines and Policy Statements, at p. 5.2 (1987) (hereinafter "Sentencing Guidelines") (offense level 19, Criminal History Category III); id. Sec. 2B3.1 (base offense level for robbery is 18, "add 1" for loss to financial institution of "$2,501-$10,000"); see also United States v. Bermingham, 855 F.2d 925, 927 (2d Cir.1988). The plea agreement expressly stated that the court was not bound to accept the government's recommendation and that in the event the court decided to impose a sentence which would constitute an upward departure from the guidelines, "then the defendant may withdraw his plea of guilty." App. at 18; cf. Fed.R.Crim.P. 11(e).

On January 29, 1988, defendant pleaded guilty. The presentence report indicated that upward departure would be appropriate since defendant's Criminal History Category "underrepresent[ed]" the seriousness of his criminal record. Specifically, the presentence report noted that defendant had pleaded guilty to two state felonies but that these convictions were not figured into the criminal history calculation because defendant had not yet been sentenced. The guidelines also did not take into account the fact that the two bank robberies were committed by the defendant after he had been released and while awaiting On March 22, 1988, defendant appeared in federal court for sentencing. At that time, the court advised defendant that it would not accept the plea agreement and that it intended to impose a sentence above the 37-46 month range. The court then adjourned the sentencing until March 29, 1988 to allow the defendant time to decide whether to withdraw his guilty plea.

sentence on the two prior felony convictions.

On March 28, 1988, defendant filed a motion challenging the constitutionality of the Act. The next day, defendant again appeared for sentencing and asked that the court accept his plea and impose sentence. Judge Larimer first declined to consider defendant's motion, indicating that defendant's constitutional challenge to the Act was foreclosed by his guilty plea. The court then accepted the plea, departed from Criminal History Category III to Category V and imposed a sentence of 60 months imprisonment (within the 57-71 month range) followed by a three-year term of supervised release and the mandatory $50 special assessment.

DISCUSSION

Preliminarily, we note that the government conceded in its brief and at oral argument that the district court erred in not ruling on defendant's motion challenging the Act's constitutionality. Entry of a plea of guilty does not constitute a waiver of defendant's right to contest the validity of the sentencing statute. See United States v. Estrada, 680 F.Supp. 1312, 1315 (D.Minn.1988) (defendant has standing to challenge constitutionality of guidelines after he pleads guilty or is found guilty). Nevertheless, on the merits of defendant's constitutional claim, we are of course bound by the Supreme Court's recent holding in favor of the Act's constitutionality. See Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 661, 102 L.Ed.2d 714 (1989).

Regarding the sentence imposed by the district court, the Act provides that the sentencing judge "shall impose a sentence ... within the range [as set forth in the Sentencing Guidelines] unless the court finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described." 18 U.S.C. Sec. 3553(b) (Supp. III 1985), amended by 18 U.S.C. Sec. 3553(b) (Supp. IV 1986) (effective for offenses committed after December 7, 1987) (amended to read "... 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.") (emphasis added). Section...