U.S. v. Summers

• Decision Date: 02 January 1990
• Docket Number: No. 89-5116,89-5116
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Roy David SUMMERS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 63

893 F.2d 63

UNITED STATES of America, Plaintiff-Appellant, v. Roy David SUMMERS, Defendant-Appellee.

No. 89-5116.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 3, 1989.

Decided Jan. 2, 1990.

William Graham Otis, Senior Litigation Counsel (Henry E. Hudson, U.S. Atty., on brief) for plaintiff-appellant.

James Clyde Clark (Land, Clark, Carroll & Mendelson, on brief) for defendant-appellee.

Before HALL and WILKINS, Circuit Judges, and WINTER, Senior Circuit Judge.

WILKINS, Circuit Judge:

The United States appeals the sentence imposed on Roy David Summers, contending that the district court erred in granting a downward departure from the appropriate sentencing guidelines range. We vacate the sentence imposed and remand with instructions to impose a sentence consistent with this opinion.

I.

On September 27, 1988, an arrest warrant was served on Roy David Summers after he entered a vehicle parked outside an apartment complex in Fairfax, Virginia. A search of the vehicle resulted in the seizure of three kilograms of cocaine base (crack) and one-half kilogram of cocaine. A search of the apartment from which Summers exited revealed three mixing bowls containing cocaine residue. A search of Summers' residence in Forrestville, Maryland led to the seizure of $62,686 in cash found under and in a mattress and the seizure of approximately seven kilograms of cocaine from a vehicle parked on his premises. Also recovered from the vehicle were a loaded semi-automatic .45 caliber pistol and 46 rounds of ammunition. ¹

A few months prior to his arrest Summers had purchased three handguns utilizing a Maryland driver's license bearing the name of "Richard Roy Ray." To accomplish the purchase Summers signed the name "Richard Ray" to the required form and falsely stated that he had not been convicted of a crime punishable by imprisonment for more than one year. In fact, Summers had a substantial criminal record including violations of law carrying a maximum punishment of more than one year in prison. ² In addition to several arrests as a juvenile, Summers' adult criminal record for which there are dispositions included convictions for grand larcenies, possession of narcotics, a weapons violation, driving with a suspended license violations, and probation revocation.

Summers was indicted in federal court in Virginia and Maryland on various drug charges and in federal court in Maryland for the use of a firearm during a drug trafficking crime, for furnishing false identification in acquiring a firearm, and for possession of a firearm by a convicted felon. 18 U.S.C.A. Sec. 924(c)(1) (West Supp.1989); 18 U.S.C.A. Sec. 922(a)(6) (West Supp.1989); 18 U.S.C.A. Sec. 922(g)(1) (West Supp.1989). Pursuant to Rule 20 of the Federal Rules of Criminal Procedure, Summers pled guilty in the Eastern District of Virginia to these various offenses.

Since the offenses were committed after November 1, 1987, Summers' sentence was governed by the Sentencing Reform Act of 1984, 18 U.S.C.A. Secs. 3551 et seq. (West 1985 & Supp.1989), and the sentencing guidelines promulgated by the United States Sentencing Commission. The probation officer preparing the presentence report correctly calculated the guidelines offense level for the narcotics violations to be level 36. She recommended that this be increased by two levels to reflect Summers' role in the offense, U.S.S.G. Sec. 3B1.1(a), and decreased by two levels for acceptance of responsibility, U.S.S.G. Sec. 3E1.1, for a net total of offense level 36. Subsequently, the court and the parties agreed that the correct guidelines offense level was 36 and the criminal history category was V, producing a sentencing guidelines range of 292 to 365 months. In addition, because Summers was convicted of use of a firearm during a drug trafficking crime, 18 U.S.C.A. Sec. 924(c)(1) mandated the imposition of a 60-month sentence to be served consecutively to the sentence for the narcotics violation.

The probation officer also correctly calculated Summers' criminal history category to be V. ³ While Summers did not contest the accuracy of this determination, he urged the district court to depart below the appropriate sentencing guidelines range based on what he styled an "exaggeration" of his criminal history category. At the sentencing hearing, the district court stated that "because of [Summers'] age and because of some of the aggravation, or the increase that has been caused by these driving without a license charges as they relate to [the defendant's] criminal history" a sentence below the appropriate sentencing guidelines range would be imposed. The court then departed and imposed a sentence of 180 months for the narcotics violations and a consecutive 60-month sentence for the section 924(c)(1) weapons violation.

II.

18 U.S.C.A. Sec. 3553(b) (West Supp.1989) requires a court to impose a sentence within the guidelines range "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." ⁴ Whether a sentence should be based on a departure envisions a two-prong test. See Wilkins, Sentencing Reform and Appellate Review, 46 Wash. & Lee L.Rev. 429, 438 (1989). The first prong of the test initially requires a determination that a particular aggravating or mitigating circumstance was "not adequately taken into consideration by the Sentencing Commission." If the court determines that a circumstance was "not adequately taken into consideration," it must next engage in a fact-finding mission to determine if the circumstance is supported by facts in the particular case under consideration. Then, if the district court identifies one or more aggravating or mitigating circumstances "not adequately taken into consideration," it may depart from the sentencing guidelines range only if it further determines that because of the circumstance a sentence different from the guidelines sentence "should result." This second prong of the departure test requires the district court to determine whether the circumstance now identified and found to exist in the particular case is of sufficient importance and magnitude to justify a departure. In many cases a departure will not be warranted even though a circumstance was not "adequately taken into consideration." This is because a circumstance may be irrelevant for sentencing purposes or, while it may be of sufficient significance for some consideration, it may warrant consideration only when determining the point within the guidelines range where the ultimate sentence is to be fixed. And, in some cases, a circumstance may be determined to exist which standing alone would provide a justifiable basis for departure but may be offset by a competing circumstance so that when considered within the context of a particular case, a departure would not be warranted.

III.

18 U.S.C.A. Sec. 3742(f)(2) (West Supp.1989) ⁵ states in pertinent part that "[i]f the court of appeals determines that the sentence ... is outside the applicable guideline range and is unreasonable ... [the court shall] remand the case for further sentencing proceedings with such instructions as the court considers appropriate...." Appellate review of the "reasonableness" of the decision to depart ⁶ encompasses both the reasonableness of whether a departure is warranted, as well as the reasonableness of the amount or extent of departure. Because the statutory standard of "unreasonableness," standing alone, gives insufficient guidance to promote consistency of appellate decisions, appellate courts must give it a more specific and workable meaning by analogizing it with standards of review traditionally applied.

A standard akin to that used in addressing questions of law should be used when reviewing the initial determination that a mitigating or aggravating circumstance was not "adequately taken into consideration." United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.1989). This is because 18 U.S.C.A. Sec. 3553(b) specifically confines the district court examination of this issue to the guidelines, policy statements, and official commentary of the Commission. ⁷ Thus, the district court may not concern itself with background documents considered by the Commission, the extent or adequacy of Commission debate about a particular circumstance, or subjective Commission intent regarding a circumstance. Rather, the district court must limit its examination solely to the language of the Guidelines Manual and the reasonable inferences which may be drawn from it. To assist in this determination, guidance may be found in the language of particular guidelines and accompanying commentary, the general description of the Commission's approach to the scope of guidelines and departures, and Commission pronouncements on departures interspersed throughout the Guidelines Manual. In commentary accompanying specific guidelines and in policy statements, the Commission has expressly identified circumstances that may warrant a departure, ⁸ commonly known as "Commission-identified" departures. A second type of departure involves aggravating and mitigating circumstances not specifically identified by the Commission as a potential basis for departure but which the sentencing court has identified as providing a justifiable basis. These may properly be labeled "judicially-created" departures.

The standard of reasonableness on appeal is also applied when reviewing the issue of whether there is sufficient evidence to support a finding that a circumstance on which a departure is based actually exists in the particular case. Here, since the district court is engaged in fact-finding, the appellate court should be more deferential, using a standard of review approximating the clearly erroneous one.

The final issues the appellate...