U.S. v. Whiteskunk, 97-1407
| Decision Date | 16 December 1998 |
| Docket Number | No. 97-1407,97-1407 |
| Citation | 162 F.3d 1244 |
| Parties | 1999 CJ C.A.R. 10 UNITED STATES of America, Plaintiff-Appellee, v. Willette WHITESKUNK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Andrew A. Vogt (Henry L. Solano, United States Attorney, with him on the brief), Assistant United States Attorney, Denver, Colorado, for Plaintiff-Appellee.
Michael G. Katz, Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
Before TACHA, BRORBY and KELLY, Circuit Judges.
Defendant, Ms. Willette T. Whiteskunk, pleaded guilty to one count of involuntary manslaughter in violation of 18 U.S.C. §§ 1153 and 1112(a) and was sentenced to twenty-four months imprisonment. The district court departed upward three levels from the standard Guideline range for involuntary manslaughter to arrive at the final sentence. Ms. Whiteskunk now appeals the trial court's decision for upward departure. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Finding the district court gave an insufficient explanation for the degree of departure, we reverse and remand for resentencing.
Ms. Whiteskunk's conviction stems from an alcohol-related accident on the Southern Ute Indian Reservation in which Mrs. Mary V. ("Virginia") Fleming lost her life. The Presentence Investigation Report indicates that on April 30, 1997, Ms. Whiteskunk, an enrolled member of the Southern Ute Tribe, was driving a pickup truck at a rate of seventy-eight miles per hour eastbound on Highway 172 within the boundaries of the Southern Ute Indian Reservation near Ignacio, Colorado. At the same time, the decedent, Mrs. Fleming, was riding a motorcycle westbound on Highway 172 traveling about fifty-five miles per hour. Ms. Whiteskunk veered across a double yellow line into the westbound lanes of the highway and struck Mrs. Fleming head-on, killing her instantly. Tests taken shortly after the accident showed Ms. Whiteskunk had a blood alcohol content of .212 percent, more than twice the legal limit. This was not the first time Ms. Whiteskunk had been driving while intoxicated. She previously had been arrested and convicted in tribal court of drunk driving, but the offense was not included in her criminal history because it occurred more than ten years earlier.
The district court found several other events on the day of the accident made the case unusual, and indicated Ms. Whiteskunk acted with a higher than normal degree of recklessness. Just after midnight on the day of the accident, as Ms. Whiteskunk was sitting in her truck, she was approached by a Southern Ute police officer who, upon seeing her state of intoxication, took her keys and told her she was not going to drink and drive. Later that same morning, Ms. Whiteskunk asked her sister to drive her to the In the Presentence Investigation Report, Ms. Whiteskunk's base offense level was set at 14, as prescribed for violations of 18 U.S.C. § 1112(a) in the United States Sentencing Guidelines § 2A1.4(a)(2). A two-level downward adjustment was made for acceptance of responsibility under U.S.S.G. § 3E1.1(a), to arrive at a total offense level of 12. With a Criminal History Category of I, Ms. Whiteskunk's Guideline range for imprisonment was calculated at 10-16 months.
police station to retrieve her keys. Ms. Whiteskunk's husband admitted after the accident that he and his wife had been drinking since around 8:00 a.m. At about 12:00 p.m., only two hours before the accident, Ms. Whiteskunk reportedly entered a bar, but was refused service because she looked "like [she] had partied all night" and smelled of alcohol. She left the bar and drove away, at which time a bar employee called the Colorado State Patrol to report her license number. At 1:38 p.m., just minutes before the fatal accident, an unknown caller reported Ms. Whiteskunk driving erratically and nearly colliding with the caller's vehicle. Only a few minutes later, the emergency dispatcher received a call about the accident in which Mrs. Fleming was killed.
At the sentencing hearing, the district court decided to depart upward three levels from the base offense level, finding certain aggravating factors in the presentence report indicated "the defendant's conduct ... exceeded reckless behavior, and therefore, exceeded the guidelines." The district court rested its decision on a number of factors including: (1) Ms. Whiteskunk's blood alcohol content, which was more than twice the legal limit; (2) a prior conviction for drunk driving, which put her on notice of the "illegality and the dangerousness of drinking and driving"; and (3) multiple opportunities for Ms. Whiteskunk to correct her behavior before the accident.
Ms. Whiteskunk asserts the district court erred because it: (1) abused its discretion in departing upward on the bases that death resulted and that her conduct exceeded the standard of recklessness, (2) failed to explain the upward departure, and (3) failed to provide adequate notice of intent to depart upward and the basis for the departure.
United States v. Collins, 122 F.3d 1297 (10th Cir.1997), sets forth our general framework for reviewing Sentencing Guideline departures following the Supreme Court's landmark decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). A sentencing court is permitted to depart from the Guidelines after determining a defendant's offense level, criminal history category, and the applicable Guideline range "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.' " U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). The district court must distinguish whether the case falls under the category of a "heartland case" or an "unusual case." See Koon, 518 U.S. at 93, 116 S.Ct. 2035. In Koon, the Court explained the Sentencing Commission intended for " 'sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes.' " Id. . If the case falls outside the heartland (i.e., is not the usual type of case), the court may decide to depart from the prescribed sentencing range. Id.
When deciding whether to depart from the Guidelines, the district court may not consider certain "forbidden" factors. 1 Collins, 122 F.3d at 1302. Otherwise, the Sentencing Guidelines do not limit or restrict the grounds available for departure. The Guidelines also list factors that are encouraged factors for departure. If the factor is an encouraged factor, "the court is authorized to depart if the applicable Guideline On appeal, the district court's decision to depart is reviewed "under a unitary abuse-of-discretion standard which 'includes review to determine that the discretion [of the district court] was not guided by erroneous legal conclusions.' " Collins 122 F.3d at 1302 (quoting Koon, 518 U.S. at 100, 116 S.Ct. 2035). This standard limits appellate courts' scope of review, leaving district courts with "much of their traditional sentencing discretion." Koon, 518 U.S. at 97, 116 S.Ct. 2035. The essential nature of the question presented, whether legal or factual, guides our standard of review. Collins, 122 F.3d at 1303. In the usual case, where the court's decision whether to depart rests on factual findings, the district court's decision is entitled to substantial deference. See Koon, 518 U.S. at 98, 116 S.Ct. 2035 (); United States v. Rivera, 994 F.2d at 942, 951 (1st Cir.1993) (). If, however, the district court's decision rests primarily on a legal conclusion, for instance whether a factor is a permissible ground for departure, the appellate court's review is plenary. Collins, 122 F.3d at 1303.
does not already take it into account." Id. If the factor is a discouraged factor, or one already taken into account under the Guidelines, "the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Id. It is up to the district court to determine whether certain factors take the case out of the "heartland," and "make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing." Koon 518 U.S. at 98, 116 S.Ct. 2035.
Collins established a four-step inquiry to guide our analysis. We must examine:
(1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable.
122 F.3d at 1303. We need not give deference to the district court on the first issue, which is essentially a legal conclusion, but we must give substantial deference on the second question because it involves factual conclusions. All of these steps are subject to a unitary abuse of discretion standard. Id.
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