U.S. v. Weaver

• Decision Date: 15 January 1991
• Docket Number: No. 89-7295,89-7295
• Citation: U.S. v. Weaver, 920 F.2d 1570 (11th Cir. 1991)
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James T. WEAVER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1570

920 F.2d 1570

UNITED STATES of America, Plaintiff-Appellant, v.James T. WEAVER, Defendant-Appellee.

No. 89-7295.

United States Court of Appeals Eleventh Circuit.

Jan. 15, 1991.

Charysse L. Alexander, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellant.

Susan Graham James, Jeffery C. Duffey, Montgomery, Ala., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before CLARK, Circuit Judge, MORGAN and HILL^*, Senior Circuit Judges.

CLARK, Circuit Judge:

This case involves a district court's downward departure from the sentence prescribed by the Sentencing Guidelines.The district court based its departure on the guidelines' failure to adequately consider several factors and on the fact that without such departure, the resultant penalty was more harsh than necessary to accomplish its deterrent effect.Because we find that this is an appropriate case for departure from the guidelines, that the district court adequately explained the basis for its departure, and that the degree of the departure was reasonable under the circumstances, the decision of the district court is AFFIRMED.

FACTS

Defendant-appellee Weaver pled guilty to escaping from the minimum-security federal prison camp at Maxwell Air Force Base in Alabama.There he was serving a seven-year sentence on a previous conviction for drug possession.On May 19, 1988, he escaped by walking away from his assigned work detail and left the base.On September 4, 1988, he voluntarily returned to Maxwell and surrendered to authorities.In the Presentencing Report (PSR), the probation officer calculated Weaver's offense level for the escape to be eleven: base level of 13 minus 2 for acceptance of responsibility.SeeUnited States Sentencing Commission, Guidelines Manual, Secs. 2P1.1(a)(1) and 3E1.1(a)(Nov. 1989).This adjusted level, coupled with his criminal history category of IV, prescribes a guideline sentence range of 18-24 months.The PSR identified no factors to warrant a departure from the prescribed range.However, Weaver's attorney submitted a supplement to the PSR identifying several bases for a downward departure from the prescribed range.Only three bases are involved in this appeal: ¹ first, failure of the guidelines to adequately consider an escapee's voluntary return to custody more than 96 hours after escape from a non-secure prison; second, failure of the guidelines to consider the effect of a subsequent sentence on parole eligibility from sentences imposed under the pre-guidelines system; ² and third, the district court's belief that without a departure, the resultant total punishment would be unnecessarily harsh to serve as a deterrent.At the sentencing hearing, the court made the following remarks:

[E]ven though you were on an escape status for approximately three months, some recognition should be given to the fact that you turned yourself in....And I am also conscious that in addition to any sentence that I impose here, you shot yourself in the foot in other ways.You are not going to get the release from prison in all likelihood that you would have gotten had you not walked off....My concern in a case of this sort is to be sure that where they put people at Maxwell and give them minimum supervision, ... there [is] a deterrent, and I feel the guidelines sentences, in your kind of case, is more severe than is necessary to serve as a deterrent.

The district court then sentenced Weaver to a term of seven months to be served consecutively with his drug conviction.The government objected to the downward departure and this appeal followed.

DISCUSSION

We have jurisdiction to review a sentence which is outside the guideline range.18 U.S.C.A. Sec. 3742(West 1985& Supp.1989).See, e.g., United States v. Fossett, 881 F.2d 976, 978-79(11th Cir.1989).The statutory provision which allows a sentencing court to depart from the prescribed sentencing range is clear and provides that a court may depart from the 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,' and the court believes that the circumstances 'should result in a sentence different from that [prescribed by the guidelines].' "United States v. Crawford, 883 F.2d 963, 964(11th Cir.1989)(quoting18 U.S.C.A. Sec. 3553(b)(West Supp.1989)).See alsoUnited States v. Palta, 880 F.2d 636, 639-40(2nd Cir.1989)(concluding that the statute allows "a court[to] depart even though the Sentencing Commission in formulating the guidelines has considered and listed a particular kind of misconduct").While the standard is simple to state, appellate review of a district court's decision to depart from the guidelines is complex as such a decision involves the district court's resolution of questions of law and of fact, and ultimately of what punishment best fits the circumstances of a particular case.

I.STANDARDS OF REVIEW

This court has not explicitly set out the standards of review applicable to departure cases; however, our earlier cases foreshadow the approach we adopt today.See, e.g., United States v. Carrillo, 888 F.2d 117, 118(11th Cir.1989)(district court's factual findings must be accepted unless clearly erroneous);United States v. Campbell, 888 F.2d 76, 78-79(11th Cir.1989)(same);Crawford, 883 F.2d at 964-66(exercising de novo review of sentencing court's determination that guidelines did not adequately consider certain aggravating circumstances and concluding that nothing in record indicates that the departure was unreasonable).We agree with the First Circuit's assessment in United States v. Diaz-Villafane, 874 F.2d 43, 49-50(1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133(1989), ³ and conclude that appellate review of departure cases consists of three steps.First, we will determine whether the guidelines adequately consider a particular factor so as to preclude a district court from relying upon it as a basis for departure.We exercise de novo review of this question of law.Second, we must determine whether there exists sufficient factual support for the departure.This review implicates the district court's fact-finding role and we are constrained from reversing its findings except for clear error.18 U.S.C.A. Sec. 3742(e)(West Supp.1989)(appellate courts"shall accept the findings of fact of the district court unless they are clearly erroneous").Finally, "once we have assured ourselves that the sentencing court considered circumstances appropriate to the departure equation and that those factors enjoyed adequate record support, the direction and degree of departure must, on appeal, be measured by a standard of reasonableness."Diaz-Villafane, 874 F.2d at 49.See18 U.S.C.A. Sec. 3742(e)(3).In this vein, we must be mindful of "the factors to be considered in imposing a sentence, as set forth in chapter 227[18 U.S.C.A. Sec. 3553(a) ] of this title,"18 U.S.C.A., Sec. 3742(e)(3)(A), ⁴ and evaluate these in light of "the reasons for the imposition of the particular sentence as stated by the district court,"18 U.S.C.A. Sec. 3742(e)(3)(B).The statute further requires appellate courts to "give due regard to the opportunity of the district court to judge the credibility of the witnesses ... and [to] give due deference to the district court's application of the guidelines to the facts."18 U.S.C.A. Sec. 3742(e).⁵

II.GROUNDS FOR DEPARTURE

Since the inquiry here into whether particular factors are adequately considered by the guidelines is closely related to the inquiry into whether the record supports the district court's factual findings relating to those factors, we may resolve these questions simultaneously.

To recapitulate, the district court departed from the guidelines for three reasons: first, failure of the guidelines to adequately consider an escapee's voluntary return to custody more than 96 hours after escape from a non-secure prison; second, failure of the guidelines to consider the effect on parole eligibility in sentences imposed under the pre-guidelines system; and third, the district court's belief that without some departure, the total punishment would be unnecessarily harsh to serve as a deterrent.

A.Voluntary Return to Custody.

Since the guidelines clearly consider the prisoner's voluntary return, the security level of the prison, and the amount of time the escapee remains at large, ⁶we must focus on whether the guidelines adequately take these factors into account.SeeUnited States v. Crawford, 883 F.2d 963, 966(11th Cir.1989)(departure for aggravating role permissible even though defendant's role did not rise to level defined under Sec. 3B1.1).United States v. Palta, 880 F.2d 636, 639-40(2nd Cir.1989)(departures permissible even if guidelines list particular factor because consideration may be inadequate).Of primary importance to appellee is the significance of the 96-hour deadline.It is undisputed that Weaver voluntarily returned to custody following his escaping from a non-secure facility.We agree with the district court that the guidelines do not adequately consider a prisoner's voluntary return to custody after 96 hours.Given the magnitude of the reduction available under U.S.S.G. Sec. 2P1.1(b)(2)⁷, we do not think the Commission intended to erect an impenetrable barrier at 96 hours; that is, an escapee who returns after 97 hours could receive the benefit of some reduction under this guideline section.However, since appellant did not return to custody until three months after he escaped, we conclude that any departure based on his voluntary return is unreasonable.

The guidelines state that "the Commission does not intend to limit the kinds of factors (whether or not mentioned anywhere else in the guidelines) that could constitute grounds for departure in...