U.S. v. Tucker, 89-1222
| Decision Date | 04 October 1989 |
| Docket Number | No. 89-1222,89-1222 |
| Citation | 892 F.2d 8 |
| Parties | UNITED STATES of America, Appellee, v. Forrest S. TUCKER, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Robert D. Richman, Federal Defender Office, was on brief for defendant, appellant.
Martin F. Murphy, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief for appellee.
Before CAMPBELL, Chief Judge, and TORRUELLA, Circuit Judge, and TIMBERS, * Senior Circuit Judge.
This appeal raises the issue of whether, in the circumstances of this case, the district court's decision not to depart from the applicable Sentencing Guidelines ("Guidelines") range is appealable. We find that it is not, and therefore dismiss the appeal.
Appellant Forrest S. Tucker ("Tucker") was charged with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). 1 He pleaded guilty. The government and Tucker agree that the calculation of the Guidelines made by the Probation Office was correct. After a two part reduction for acceptance of responsibility, the computation resulted in an offense level of seven. Taking into consideration Tucker's criminal history category, the Guidelines called for a sentence of imprisonment within a two to eight month range.
Tucker argues that the district court should have departed from the Guidelines and imposed a sentence of probation. He contends that the particular circumstances in which he committed the offense, warranted a downward departure from the Guidelines under 18 U.S.C. § 3553(b). This subsection provides that a district court may depart 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." 18 U.S.C. § 3553(b). See United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.1989). The special mitigating circumstance in this case, Tucker argued, was his belief in the need to protect himself and his family due to threats resulting from his previous cooperation with the authorities against drug traffickers.
The district court refused to depart from the Guidelines. Tucker was, however, sentenced to the shortest term of confinement available under the applicable Guideline range (two months) to be served in the least restrictive condition (a community treatment center). This appeal followed. 2
The Sentencing Reform Act ("the Act") specifically defines when a defendant can seek appellate review of a sentence. 18 U.S.C. § 3742(a). A defendant may appeal a sentence if it:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
18 U.S.C. § 3742(a). Thus, a sentence within the applicable Guideline range can be appealed only if it was imposed "in violation of law," 18 U.S.C. § 3742(a)(1), or "as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. § 3742(a)(2). See United States v. Paulino, 887 F.2d 358 (1st Cir.1989). According to the government, neither provision applies to an appeal from a refusal to depart from the applicable Guidelines. We agree.
Bearing in mind that the section seeks to establish "a limited practice of appellate review of sentences in the federal criminal justice system," S.Rep. No. 225, 98th Cong., 2nd Sess. (1983) (hereinafter S.Rep.) (emphasis added), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3332, we address the appealability of Tucker's sentence.
First, a refusal to depart from the Guidelines cannot be considered within the "in violation of law" heading. Although through the Sentencing Reform Act, Congress sought to limit the trial court's discretion in sentencing, the decision not to depart from the Guidelines in essentially discretionary. See United States v. Aguilar-Pena, 887 F.2d 347 (1st Cir.1989); United States v. Diaz-Villafane, 874 F.2d at 50. It is difficult to conceive how an abuse of that discretion would somehow amount to a "violation of law." If Congress meant "abuse of discretion," it would have said so. The phrase "in violation of law" connotes a much more limited circumstance, such as when defendant is denied some procedural right.
Second, we address the question we reserved in United States v. Wright, 873 F.2d 437, 442 (1st Cir.1989); namely, whether a sentencing court's decision not to depart, might be appealed from, as an "incorrect application" of the Guidelines. The language is not unambiguous. The policy statements in the Guidelines incorporate as a ground for departure "an aggravating or mitigating circumstance ... not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." Guidelines, § 5K2.0 (Policy Statement) (1987). Does not an "incorrect" refusal to depart constitute an incorrect application of the Guidelines? Viewed alone, the language seems to suggest an affirmative answer.
The examination of other instances where an appeal may be taken, together with the legislative history of the Act, however, clearly supports the conclusion that a refusal to depart cannot constitute an "incorrect application" of the Guidelines. Section 3742(a)(3) specifically makes appealable a sentence imposed over the applicable range. In other words, it permits appeals from decisions to depart upwards from the Guideline range. If a decision to depart from the Guidelines were appealable as an "incorrect application" of the Guidelines, then it would have been redundant for Congress to have enacted a separate provision. Clearly, this was not the case inasmuch as Congress made a conscious choice: whereas a decision to depart is appealable, a decision not to depart is not.
The legislative history of the Act supports this view. The Act requires:
"[T]he judge, before imposing sentence, to consider the history and characteristics of the offender, the nature and circumstances of the offense, and the purposes of sentencing. He is then to determine which sentencing...
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