U.S. v. Talk
| Decision Date | 29 November 1993 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before MOORE, MCKAY and KELLY, Circuit Judges.
For the third time this case is before us upon issues related to sentencing. In both previous appeals by the government, we have reversed the district court and remanded for resentencing. On the last occasion, our reversal included instructions to "resentence at an offense level of 31." After more than five months following the issuance of the mandate from that appeal, the district court resentenced at the level of 31, but departed downward after finding there existed "new information not previously considered by this Court or the Tenth Circuit Court of Appeals in determining the appropriateness of a downward departure." Departing from the guideline range of 108 to 135 months to an adjusted level of 18 with a sentencing range of 27 to 33 months, the court adopted a sentence of 28 months, the time already served by the defendant. The government appeals, and we once again reverse.
To those of us who have served on the district bench and passed sentences long before the adoption of the guidelines, this case illustrates why so many of us decried the adoption of the sentencing guidelines. The district judge in this case has viewed the defendant, his background, the crime, and the factors implicit in the objectives of sentencing, and in the exercise of his judgment and discretion has attempted to fix a sentence in keeping with all of those considerations. While that was always regarded as the prerogative of the sentencing judge prior to the adoption of the guidelines, Congress has divested judges of that latitude. The simple fact is, judicial discretion has a place in sentencing so long as it is exercised within the parameters of the sentencing guidelines.
Yet, this case is beset with a more fundamental problem. After twice considering previous sentences and finding them wanting, we remanded the cause to the district court with specific instructions. Although the district court acknowledged the limitation of the remand instructions by nominally setting a total offense level of 31 as instructed by this court, the district court immediately obviated that acknowledgment by its downward departure.
The issue we must therefore decide is whether, as the government contends, the district court was not free to depart downward, or whether, as the defendant asserts, the court appropriately found new and extraordinary circumstances, including the defendant's completion of the sentence that was the subject of the second appeal. After full consideration, we believe the government is correct.
Our prior mandate was clear. It directed imposition of a sentence employing an offense level of 31. Moreover, we held that defendant's "family or community ties" were not extraordinary and that his "criminal history," or lack thereof, "does not form a valid basis for departure." Additionally, upon viewing the events surrounding the crime, we held "they do not suggest a single act of aberrant behavior."
These holdings notwithstanding, the very factors we found wanting were employed by the district court...
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U.S. v. Talk
...that "Congress has divested judges of [the] latitude" at sentencing shown in Talk's case. See United States v. Talk, 72 F.3d 139, 1995 WL 712678, at * 1 (10th Cir. Dec.4, 1995) ("Talk III "). Further, we determined that the district court was bound by the terms of our mandate in Talk II not......