U.S. v. Webb, 93-3400

• Decision Date: 28 February 1995
• Docket Number: No. 93-3400,93-3400
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Edgar Wayne WEBB, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 636

49 F.3d 636

UNITED STATES of America, Plaintiff-Appellant, v. Edgar Wayne WEBB, Defendant-Appellee.

No. 93-3400.

United States Court of Appeals, Tenth Circuit.

Feb. 28, 1995.

Gregory G. Hough, Asst. U.S. Atty. (Randall K. Rathbun, U.S. Atty., with him on the brief), D. Kan., Topeka, KS, for plaintiff-appellant.

Marilyn M. Trubey, Branch Chief (David J. Phillips, Federal Public Defender, with her on the brief), Federal Public Defender's Office for the D. Kan., Topeka, KS, for defendant-appellee.

Before TACHA, LOGAN and EBEL, Circuit Judges.

TACHA, Circuit Judge.

The only issue presented by this appeal is whether the district court erred in granting a downward departure from the sentence range prescribed by the United States Sentencing Guidelines (U.S.S.G.). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and reverse.

I. Background

As part of a marijuana eradication effort, the Morris County sheriff, the Kansas National Guard, and the Kansas Bureau of Investigation (KBI) engaged in surveillance efforts to locate cultivated marijuana. Aerial surveillance revealed marijuana at defendant Edgar Wayne Webb's residence. The sheriff and a KBI agent confirmed that observation by viewing defendant's yard from a nearby football field. The next day, KBI agents executed a search warrant and found 142 cultivated marijuana plants in a fenced area of defendant's backyard. Defendant consented to a search of his house, where agents found additional marijuana. They also discovered a .22 caliber semiautomatic rifle with a homemade silencer attached and a second, partially-complete homemade silencer.

Defendant cooperated throughout the agents' search and admitted to cultivating the marijuana. He showed the agents his "personal stash" of marijuana and stated that he was addicted to the substance. Defendant asserted that he grew the marijuana for his own use and that he neither sold nor gave it away.

A jury convicted defendant of possession of marijuana in violation of 21 U.S.C. Sec. 844(a), and of possession of unregistered firearms and firearms not identified by a serial number in violation of 26 U.S.C. Sec. 5861(d) and (i). ¹ The Sentencing Guidelines prescribed a range of twenty-seven to thirty-three months imprisonment for these offenses. The district court, however, sentenced defendant to three years probation (including six months of home confinement). The government now appeals the district court's decision to depart downward from the applicable guideline range.

II. Discussion

The Guidelines prescribe sentencing ranges for a " 'heartland,' a set of typical cases embodying the conduct that each guideline describes." U.S.S.G. Ch. 1, Pt. A(4)(b), intro. comment. Although the Sentencing Reform Act states that district courts may depart from these ranges, it permits departure only where a "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." 18 U.S.C. Sec. 3553(b). The Guidelines themselves state that a departure is justifiable only in the "atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm." U.S.S.G. Ch. 1, Pt. A(4)(b), intro. comment. Moreover, when a district court decides to depart from the Guidelines, it must state the specific reasons for doing so. 18 U.S.C Sec. 3553(c)(2); United States v. Smith, 888 F.2d 720, 723 (10th Cir.1989), cert. denied, 494 U.S. 1068, 110 S.Ct. 1786, 108 L.Ed.2d 788 (1990).

In reviewing a district court's departure from the Guidelines, we apply a three-step analysis:

First, we determine de novo whether the circumstances cited by the district court admit of a factor not adequately taken into account by the Sentencing Commission which would justify departure. Second, we review the district court's factual findings supporting departure and determine whether they were clearly erroneous. Third, if the departure was justified, we review the degree of departure to determine whether it was reasonable.

United States v. Ziegler, 39 F.3d 1058, 1061 (10th Cir.1994); see also United States v. Pena, 930 F.2d 1486, 1494 (10th Cir.1991). In this case, we need address only the first step--whether the factors relied on by the district court justify its departure.

The district court believed that a "downward departure [wa]s not only authorized but absolutely essential." The court based its ruling on three general justifications: (1) defendant's psychiatric history and condition; (2) his son's need to have defendant care for him; and (3) the "unsophisticated nature of the silencers." ² The court's primary emphasis was that defendant was the sole caretaker of his son and that the son "needs to be taken care of."

This court has upheld departures based in part on the adverse effect of incarceration on family members. See Pena, 930 F.2d at 1494-95 (upholding a downward departure for a defendant whose illegal conduct was aberrational, who was a single parent of a two-month old, and who supported another daughter and her infant). But the Guidelines start from the premise that "[f]amily ties and responsibilities ... are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." U.S.S.G. Sec. 5H1.6. Consequently, a district court must identify some extraordinary personal circumstances warranting mitigation in sentencing to justify a departure.

In the case at bar, the district court was sensitive to the relationship between defendant and his son, Dylan. Indeed, some of the medical evidence supports the finding that defendant is a loving and conscientious parent and that his son has served as a stabilizing influence in defendant's life. There was also some evidence that defendant contributed to his son's well-being; the son apparently was on the honor roll in school before defendant's incarceration but was having difficulty thereafter.

The court may also have relied on defendant's unusual family situation. Defendant's three ex-wives all had children by their prior marriages. Defendant's son is his only child, the product of his third marriage. In that divorce defendant was awarded custody. The presentence report indicates Dylan would stay with a stepson of defendant if he were incarcerated. That stepson is apparently in his early twenties and never finished high school.

Although unfortunate, these circumstances are insufficiently aberrational to place defendant's case outside the "heartland" contemplated by the Guidelines; that is, this is not an "atypical case" in which "a particular guideline linguistically applies but where conduct significantly differs from the norm." The defendant's role as a "sole caretaker" and the child's need "to be taken care of" do not render the circumstances of this case extraordinary. Defendant's family situation therefore cannot justify a departure from the applicable guideline range.

The district court also relied on defendant's psychiatric history and other corroborating evidence concerning his mental condition offered at sentencing. Data of diminished capacity can support a departure under section 5K2.13 of the Guidelines. ³ The medical evaluations provided to the district court, however, did not address the specific issues required by that section. The psychiatric reports document a significant history of mental problems and contain diagnoses--dysthymia, post-traumatic stress disorder, panic disorder, personality disorder with paranoid features--which may not have resulted from defendant's voluntary use of drugs. But they do not address or lead to the conclusion that defendant suffered from "significantly reduced mental capacity."

The district court stated that "incarceration would significantly affect the defendant's psychiatric condition," and referred to "defendant's psychiatric history." But the court did not state how this would be extraordinary compared with other defendants with psychiatric problems who are incarcerated. Defendant's psychiatric history therefore cannot justify the court's departure.

Finally, the district court cited "the unsophisticated nature of the silencers" as a reason for its departure. The silencers were clearly unsophisticated; they were made of "[o]ld toilet paper tubes and stuffing from some old stuffed animals." ⁴ After a two-point reduction for acceptance of responsibility, defendant's offense level was eighteen: The convictions for possession of unregistered firearms (the silencers) mandated eighteen points toward the base offense level calculation under U.S.S.G. Sec. 2K2.1(a)(5), and defendant received two additional points for lack of identifying serial numbers under Sec. 2K2.1(b)(4).

The offenses for which defendant was convicted are part of the National Firearms Act, which includes silencers in the definition of firearms. 26 U.S.C. Sec. 5845(a)(7). ⁵ The Act requires every "manufacturer, importer, and maker" of a firearm to register with the Secretary of the Treasury every firearm it manufactures, imports, or makes. Id. Sec. 5841(b) and (c). The specific sections under which defendant was convicted prohibit receiving or possessing an unregistered firearm, id. Sec. 5861(d), and receiving or possessing a firearm not identified by a serial number, id. Sec. 5861(i). Defendant made the silencers involved in the charge. Thus, his duty as manufacturer was to stamp a serial number on the silencers and register them within twenty-four hours of the close of the day on which they were made. 27 C.F.R. Sec. 179.103; see also United States v. Walsh, 791 F.2d 811, 818 (10th Cir.1986).

In this case, the district court may have thought that defendant's silencers represented a significantly less serious violation of the Firearms Act than those usually prosecuted under these provisions. Alternati...