U.S. v. Tisdale

• Decision Date: 18 October 1993
• Docket Number: No. 92-6109,92-6109
• Citation: 7 F.3d 957
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Thomas TISDALE, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 957

7 F.3d 957

UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Thomas TISDALE, III, Defendant-Appellant.

No. 92-6109.

United States Court of Appeals Tenth Circuit.

Oct. 18, 1993.

Susan M. Otto, Acting Federal Public Defender, Oklahoma City, OK, for defendant-appellant.

Arlene Joplin, Asst. U.S. Atty. (Timothy Leonard, U.S. Atty., with her on the briefs), Oklahoma City, OK, for plaintiff-appellee.

Before ANDERSON and EBEL, Circuit Judges, and LUNGSTRUM, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

This case is before us a third time to review the sentence imposed upon Benjamin Tisdale following his conviction of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). ¹ By virtue of that conviction and his prior criminal record, Tisdale is classified as an armed career criminal, subject by statute to a mandatory minimum sentence of 15 years in prison. 18 U.S.C. § 924(e)(1). ² The district court initially sentenced Tisdale to 30 years. We remanded for resentencing because the court's stated reasons for the sentence were insufficient for appellate review. United States v. Tisdale, 921 F.2d 1095, 1100-01 (10th Cir.1990).

In the interim, the United States Sentencing Commission amended the Sentencing Guidelines to implement the mandate of Congress expressed in § 924(e) by including in the guidelines a category for armed career criminals. United States Sentencing Commission, Guidelines Manual, § 4B1.4 (Nov. 1990). At Tisdale's resentencing the district court drew an analogy to the amended guidelines and sentenced Tisdale to 21.8 years (262 months) in prison, a sentence within the range prescribed by the guidelines as amended.

On appeal, Tisdale contends that "the district court's upward departure from the 15 year mandatory minimum sentence was error as a matter of law"; and, that "the district court's use of U.S.S.G. § 4B1.4 deprived [him] of his liberty in violation of the ex post facto clause of the Constitution." Appellant's Brief at ii. We disagree with those contentions, and affirm the sentence imposed by the district court.

BACKGROUND

The underlying facts of this case are set forth in our prior opinion and are repeated here only as relevant. Mr. Tisdale committed the instant offense on December 4, 1987. He was initially sentenced on August 23, 1988, to a 30-year term of imprisonment followed by a two-year term of supervised release. He was fined $1.00 and ordered to pay the $50.00 mandatory special assessment. The district court reconvened the sentencing hearing on October 20, 1988, in order to change the terms of the fine imposed. At the reconvened sentencing hearing the district court sentenced Mr. Tisdale again to a term of 30 years in prison, followed by a two-year term of supervised release, but changed the fine imposed to $25,000. Mr. Tisdale was also ordered to pay the $50.00 mandatory special assessment. We consolidated Tisdale's appeals of his conviction, sentence, and resentence, and affirmed the district court on all issues with the exception of the sentence itself. We vacated the sentence and remanded the case for resentencing in accordance with the steps outlined in U.S.S.G. § 1B1.1 and § 5G1.1(b), along with the court's reasons for its upward departure, if any, upon resentencing. We also directed the district court to reconsider the $25,000 fine in light of the statutory language that the fine imposed under § 924(e)(1) shall not be more than $25,000. Tisdale, 921 F.2d at 1100-01.

On remand from this court, the district court directed the preparation of a revised presentence report. In preparing the presentence report, the probation officer concluded that U.S.S.G. § 4B1.4 ("Armed Career Criminal") was not applicable because it was an amendment to the guidelines, effective November 1, 1990, subsequent to the date of Tisdale's offense of conviction. The probation officer determined the base offense level by applying U.S.S.G. § 2K2.1(a)(2), relating to offenses committed under § 922(g)(1). The base offense level under that guideline was nine. Pursuant to U.S.S.G. § 4A1.1 the probation officer fixed Tisdale's criminal history category at V based upon a calculation of 11 points from Tisdale's prior criminal record. The resulting guideline range was 18 to 24 months, substantially below the statutory minimum sentence of 15 years. Accordingly, the presentence report fixed Tisdale's guideline sentence at 180 months, or 15 years, as prescribed by U.S.S.G. § 5G1.1(b) (Nov. 1987), which provided that "[i]f application of the guidelines results in a sentence below the minimum sentence required by statute, the statutory minimum shall be the guideline sentence."

There is no disagreement over the fact that Tisdale's criminal history category, calculated in accordance with U.S.S.G. § 4A1.1, is V, as shown in the presentence report. There is also no dispute over the fact, noted by the probation officer in the presentence report, that Tisdale's criminal history category underrepresents the seriousness of his criminal conduct. The summary of Tisdale's criminal history contained in the presentence report shows numerous instances of criminal conduct which, for various reasons not related to culpability, did not proceed to the point of a conviction.

After receipt of the presentence report the court gave notice to Tisdale that it intended to depart upward from the 15-year sentence established under § 5G1.1(b), which reflected the Armed Career Criminal Act (ACCA) statutory minimum. After a two-week continuance the court then held a sentencing hearing, at the conclusion of which it sentenced Tisdale to 262 months. In granting the two-week continuance, the district court informed Tisdale that its reasons for contemplating an upward departure from the 15-year statutory minimum were as follows:

First, we don't have a single weapon but we have three weapons.

Second, they're not just sitting about in an arms rack, or the like, but they're actually loaded, all of them.

Third, we have an abundance of evidence, from which the circumstantial conclusion follows, that Mr. Tisdale was conducting an illicit drug-related enterprise in his cottage; and that the weapons were present and loaded in protection of the illicit enterprise.

And fourth, although this is not nearly as serious as the other three, the factor that Mr. Tisdale jumped out of the window and fled when apprehension was attempted by Marshal Tsoodle.

R. Vol. III at 7-8. At the sentencing hearing, the district court made explicit that an additional, and obviously important, reason for departing upward from the statutory minimum was that "the guidelines at the time omitted the big one ... the Armed Career Criminal Act." Id. at 27. ³ The court also mentioned the "potentiation" or combination of the enumerated four factors.

The court also stressed the fact of Tisdale's severe criminal history, unaccounted for in the calculation of any relevant guideline range. R. Vol. III at 30. Summarizing its views on this point the court stated:

[I]n all [the] time since the guidelines came into effect I have departed upward rarely. And the fact that it's done in this case indicates my view of the gravity of this case, of the nature of the life of Mr. Tisdale, and the necessity for the protection of society that he be imprisoned as an end in itself so that he's not about on the streets committing more offenses.

R. Vol. III at 33.

DISCUSSION

I.

A. Standards of Review.

We review a sentencing court's upward departure in three steps. United States v. Flinn, 987 F.2d 1497, 1500 (10th Cir.1993); United States v. St. Julian, 966 F.2d 564, 567 (10th Cir.), cert. denied sub nom, --- U.S. ----, 113 S.Ct. 348, 121 L.Ed.2d 263 (1992); United States v. White, 893 F.2d 276, 277 (10th Cir.1990). First, we determine whether the circumstances cited by the district court warrant a departure from the guidelines as a matter of law. White, 893 F.2d at 277. Second, we review the court's factual determinations underlying the asserted justification for departure to determine if they are supported by the record. Id. at 278. Third, we determine whether the degree of departure is reasonable. Id.; see 18 U.S.C. § 3742(e)(3). Because Tisdale makes no challenge to the underlying factual determinations, we consider only the first and third elements--whether a departure was warranted and whether the degree of departure was reasonable. ⁴

B. Decision to Depart.

We consider first whether a departure is warranted. A sentencing court may depart from the guideline sentence only 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 formulating the guidelines that should result in a sentence different from that described.' " White, 893 F.2d at 277-78 (quoting 18 U.S.C. § 3553(b)). Where departure is based on factors that are considered by the guidelines, the sentencing court cannot depart unless it finds that consideration to be inadequate in light of unusual circumstances. United States v. Smith, 930 F.2d 1450, 1454 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991); United States v. Dean, 908 F.2d 1491, 1496 (10th Cir.1990) (citing U.S.S.G. § 5K2.0). We review de novo whether the district court justified its decision to depart by citing appropriate circumstances. United States v. Thornton, 922 F.2d 1490, 1493 (10th Cir.1991).

Title 18 U.S.C. § 3553(a)(4) directs that the district court, when imposing sentence, shall consider "the sentencing range established for the applicable category of offense committed by the applicable category of defendant " as set forth in the guidelines (emphasis added). Section 3553(b) requires the district court to impose sentence within the range referred to in § 3553(a)(4), unless the Sentencing Commission in formulating the guidelines did not adequately consider a...