U.S. v. Tappin

• Citation: 205 F.3d 536
• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-1439
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. DENNIS LLEWELLYN TAPPIN, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 536

205 F.3d 536 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. DENNIS LLEWELLYN TAPPIN, Defendant-Appellant.

Docket No. 99-1439

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: February 3, 2000

Decided: March 09, 2000

Appeal from a judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge), convicting defendant, following a guilty plea, of illegal reentry into the United States after having been deported following conviction of an aggravated felony, and sentencing him principally to forty-one months' imprisonment. On appeal, defendant argues that the District Court erred in concluding, based on an application note to the relevant provision of the Sentencing Guidelines, that it lacked the power to depart downwardly on the ground that defendant's predicate aggravated felony conviction was for a relatively minor offense.

Affirmed.

HENRIETTE D. HOFFMAN, Federal Defender Division Appeals Bureau, Legal Aid Society, New York, NY, for Defendant-Appellant.

STEVEN R. GLASER, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, and Christine H. Chung, Assistant United States Attorney for the Southern District of New York, of counsel), for Appellee.

Before: OAKES, CABRANES, and SACK, Circuit Judges.

Judge Oakes dissents in a separate opinion.

JOSE A. CABRANES, Circuit Judge:

Defendant Dennis Llewellyn Tappin appeals from a judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge), convicting him, following a guilty plea, of illegal reentry into the United States after having been deported following conviction of an aggravated felony, in violation of 8 U.S.C. 1326, and sentencing him principally to forty-one months' imprisonment. On appeal, Tappin argues that the District Court erred in concluding, based on an application note to the relevant provision of the Sentencing Guidelines, that it lacked the power to depart downwardly on the ground that Tappin's predicate aggravated felony conviction was for a relatively minor offense. We disagree, and therefore affirm the judgment of the District Court.

I.

Tappin, a native of Guyana, entered the United States in 1967 on a student visa, and became a permanent resident in 1969. In 1992, however, Tappin was deported to Guyana following a 1991 conviction in New York State Supreme Court of attempted criminal sale of a controlled substance in the third degree. Tappin's conviction apparently arose from his sale of one glassine envelope of heroin to an undercover police officer in exchange for $20. As a result of the conviction, he was sentenced to six months' imprisonment and five years' probation. After serving the prison term, Tappin was deported to Guyana on November 11, 1992.

In June 1997, Tappin was arrested in New York City for violating the terms of his probation by failing to report.¹ On June 5, 1997, while Tappin was incarcerated at Rikers Island, an agent of the Immigration and Naturalization Service ("INS") interviewed him. During that interview Tappin admitted that he had reentered the United States illegally in January 1997.

On September 18, 1997, Tappin was charged in a one-count indictment with illegal reentry in violation of 8 U.S.C. 1326.² Just under two months later, following his release from Rikers Island and efforts by the INS to locate him, Tappin was arrested. On January 21, 1999, Tappin pleaded guilty to the sole charge in the indictment.

Following Tappin's guilty plea, the United States Probation Office ("Probation") prepared a Pre-Sentence Investigation Report ("PSR") recommending a Sentencing Guidelines ("Guidelines") range of forty-six to fifty-seven months' imprisonment. Using the November 1, 1998 edition of the Guidelines, Probation arrived at this recommendation by beginning with a base offense level of eight pursuant to U.S.S.G. 2L1.2(a), for unlawful entry into the United States, and applying a sixteen-level enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(A), because Tappin "previously was deported after a criminal conviction" (his 1991 drug conviction) and "the conviction was for an aggravated felony."³ The PSR also recommended a three-level reduction for acceptance of responsibility, and assigned Tappin a Criminal History Category of III based on his 1991 drug conviction and the fact that he was on probation when he illegally reentered the United States.

Although Probation recommended against any downward departure, Tappin argued before the District Court that departure was appropriate because the aggravated felony that led to his deportation-the 1991 drug conviction-was "a comparatively minor" offense. In making this argument, Tappin advanced two alternative bases for the District Court's authority to depart. First, Tappin contended that the Court had authority to depart because his case-due to, inter alia, the nature of the predicate aggravated felony conviction, his history of gainful employment, and his conduct since reentering the United States-fell outside the "heartland" of cases under U.S.S.G. 2L1.2. Second, Tappin asserted that the District Court could depart pursuant to Application Note 5 to U.S.S.G. 2L1.2 ("Application Note 5"). Application Note 5, which went into effect on November 1, 1997, provides:

Aggravated felonies that trigger the [sixteen-level] adjustment from subsection (b)(1)(A) vary widely. If subsection (b)(1)(A) applies, and (A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence or firearms offense; and (C) the term of imprisonment imposed for such offense did not exceed one year, a downward departure may be warranted based on the seriousness of the aggravated felony.

U.S.S.G. 2L1.2 application note 5 (emphasis added). Tappin conceded that he technically did not meet the criteria listed in Application Note 5-because he was convicted in New York State in 1973 of criminal possession of a weapon in the third degree, a felony, and therefore had "previously been convicted" of more than one felony offense. Nevertheless, he argued that based on the age of this first conviction and the "comparatively minor nature" of the 1991 drug conviction, the District Court could-and should-depart in the "interests of justice."

After hearing oral argument, the District Court rejected Tappin's motions for downward departure. In particular, the Court concluded that it could depart downwardly on the basis of the seriousness of the predicate aggravated felony only if Tappin met all three criteria in Application Note 5-that is, only if (A) Tappin had previously been convicted of only one felony offense; (B) such offense was not a crime of violence or firearms offense; and (C) the term of imprisonment imposed for such offense did not exceed one year. Since, by Tappin's own admission, he did not meet the first criterion (because he had two prior felony convictions-to wit, the 1973 weapons conviction and the 1991 drug conviction) the District Court concluded that it lacked authority to depart downwardly.⁴

The Court agreed with Tappin, however, that the Criminal History Category recommended by Probation overstated the seriousness of Tappin's criminal background because he allegedly did not realize that he was on probation when he illegally reentered the United States.⁵ On that basis, the Court reduced Tappin's Criminal History Category to II, which yielded a Guidelines range of forty-one to fifty-one months' imprisonment. The District Court then sentenced Tappin to the lowest end of this range-forty-one months' imprisonment-and imposed a three-year term of supervised release and a mandatory special assessment of $100. This appeal followed.

II.

On appeal, Tappin argues that, despite his failure to satisfy one of the three criteria in Application Note 5, the District Court nevertheless had discretion under Koon v. United States, 518 U.S. 81 (1996), to grant a downward departure on the basis of the seriousness of the predicate aggravated felony. We review the District Court's interpretation and application of the Guidelines for abuse of discretion. See, e.g., id. at 99-100; United States v. Young, 143 F.3d 740, 743 (2d Cir. 1998). However, "whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court's resolution of the point." Koon, 518 U.S. at 100.

A sentencing court may depart, and "impose a sentence outside the range established by the applicable guidelines, if 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.'" U.S.S.G. 5K2.0 (quoting 18 U.S.C. 3553(b)). With the exception of a few factors listed by the Guidelines that a sentencing court may not consider as grounds for departure, see Koon, 518 U.S. at 93 (listing some such factors and the corresponding Guidelines provisions), the Guidelines do not limit "'the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.'" Id. at 93 (quoting U.S.S.G., ch. 1, pt. A, intro. comment. 4(b)). However, because one of the major purposes of the Guidelines was to eliminate unjustified disparities in sentences among similarly situated defendants, "[b]efore a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline." Koon, 518 U.S. at 98; accord United States v. Labeille-Soto, 163 F.3d 93, 100 (2d Cir. 1998); see Young, 143 F.3d at 743 ("[I]t is axiomatic that departures from the guideline range are appropriate...