U.S. v. Williams, 89-1689

• Decision Date: 09 November 1989
• Docket Number: No. 89-1689,89-1689
• Citation: 891 F.2d 962
• Parties: UNITED STATES of America, Plaintiff, Appellant, v. Terryl L. WILLIAMS, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 962

891 F.2d 962

UNITED STATES of America, Plaintiff, Appellant, v. Terryl L. WILLIAMS, Defendant, Appellee.

No. 89-1689.

United States Court of Appeals First Circuit.

Heard Nov. 9, 1989.

Decided Dec. 15, 1989.

S. Theodore Merritt, Asst. U.S. Atty., Washington, D.C., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for the U.S.

Martin D. Boudreau, with whom Boudreau, Burke, McMenimen & Barber, Boston, Mass., was on brief, for defendant, appellee.

Before BOWNES, VAN GRAAFEILAND ^* and SELYA, Circuit Judges.

SELYA, Circuit Judge.

This case can be viewed as the third component of a sentencing trilogy. In United States v. Diaz-Villafane, 874 F.2d 43, 49-52 (1st Cir.1989), we erected the framework for appellate review of departures from the guidelines promulgated pursuant to the Sentencing Reform Act of 1984, as amended, 18 U.S.C.A. §§ 3551-3586 (West 1985 & Supp.1988); 28 U.S.C.A. §§ 991-998 (West Supp.1988). There, we approved an upward departure as being consonant with the method of the guidelines: the sentence enhancement derived from "aggravating ... circumstance[s] of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines," 18 U.S.C. § 3553(b); and the direction and extent of the court's departure "was within the realm of reason." Diaz-Villafane, 874 F.2d at 52.

In United States v. Aguilar-Pena, 887 F.2d 347 (1st Cir.1989), we reiterated that each guideline should be seen "as carving out a 'heartland,' a set of typical cases embodying the conduct that [the] guideline describes," id. at 349 (quoting United States Sentencing Commission, Guidelines Manual (U.S.S.G.) Ch. 1, Part A, Introduction 4(b), (Nov. 1989)). Thus, "[i]t is only when the case before the court falls outside the 'heartland' that departure comes into play." Id. Because Aguilar-Pena's case landed "well within the heartland,"id. at 353, we vacated the district court's imposition of a sentence above the indicated guideline range.

In the case at bar, we come full circle. We deal not with an accused's claim that the district court made an impermissible upward departure from the guidelines, but rather, with the government's claim that the court made an impermissible downward departure. Once again, we find the case well within the heartland for the crime of conviction. Believing that downward departures are circumscribed by the same constraints as upward departures--what is sauce for the accused's goose is, equally, sauce for the government's gander--we declare the sentence unlawful.

I. BACKGROUND

During a three week period in 1988, defendant-appellee Terryl L. Williams, unarmed, attempted a string of bank robberies. Most were marginally successful. When all was said and done, Williams netted (1) a total of approximately $16,500, and (2) a multicount indictment charging numerous violations of 18 U.S.C. § 2113(a). He pled guilty to eight counts (representing six unarmed bank robberies and two failed attempts). The plea agreement stipulated that the government would not urge an upward departure.

The parties do not dispute that the applicable sentencing range was 41-51 months. ¹ See generally Diaz-Villafane, 874 F.2d at 47-48 (explaining method for computing sentencing range under the guidelines). The presentence investigation report cited no grounds for departure. At the sentencing hearing, the government recommended a sentence in the high end of the guideline range and defense counsel recommended that the lower third of the range be visited. The judge rejected these suggestions and departed downward, sentencing Williams to a prison term of 36 months. In its bench decision, the court explained:

I'm doing it because he had no prior record. He did it over a very brief period of time when he was suffering from cocaine addiction. He was a very ineffective robber. He was only half-hearted at it. He didn't use any gun, and I think he's indicated a desire to change his life. ²

II. DEPARTURE FROM THE GUIDELINES

In enacting sentencing reform, Congress sought to achieve three primary sentencing goals: honesty, uniformity, and proportionality. See 28 U.S.C.A. § 991(b)(1)(B) (West Supp.1988); U.S.S.G. Ch. 1, Part A, Introduction 3. In striving for honesty, Congress sought to restore public confidence by adoption of "real time" sentencing. U.S.S.G. Ch. 1, Part A, Introduction 3. In striving for uniformity, Congress sought to "narrow[ ] the wide disparity in sentences imposed by different federal courts for similar conduct by similar offenders." Id. In striving for proportionality Congress sought to establish "a system that imposes appropriately different sentences for criminal conduct of different severity." Id. In turn, the Sentencing Commission attempted to further Congress's aims. It follows inexorably that, to implement the guidelines properly, courts must bear these goals in mind. Among other things, courts must remember the importance which Congress, and the Commission, attached to ensuring that like situations are treated alike.

To this end, only cases outside the "heartland" for the crime of conviction warrant departure. As Congress ordained, a district court may depart from the guidelines if it "finds that there exists an aggravating 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.A. § 3553(b)--and not otherwise. In the throws of monumental change from a largely discretionary system of criminal sentencing to a more structured regimen, we, and other courts, have striven to mirror the discernible legislative will. See, e.g., United States v. Michel, 876 F.2d 784, 786 (9th Cir.1989); Diaz-Villafane, 874 F.2d at 49; United States v. Russell, 870 F.2d 18, 19 (1st Cir.1989) (per curiam). That will demands judicial restraint. As we recently stated: "Giving judges free rein to forsake the guidelines in cases falling within the heartland for a given offense would be tantamount to judicial repudiation of the Sentencing Reform Act and the important policies which propelled its enactment." Aguilar-Pena, at 351-52.

It is for these reasons that departures--whatever direction they may take ³--should only be "permitted in those cases where idiosyncratic circumstances warrant individualization of sentence beyond that which is possible within the comparatively close-hewn parameters constructed by the guidelines." Id. at 350. Put bluntly, "there must be something 'special' about a given offender, or the accoutrements of the crime committed, which distinguishes the case from the mine-run for that offense." Id. It is not until "a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, [that] the court may consider whether a departure is warranted." U.S.S.G. Ch. 1, Part A, Introduction 4(b). Whether departure is appropriate, then, depends in large part upon what circumstances the Sentencing Commission took into account in framing the guidelines. See Aguilar-Pena, at 350; United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989). As the Commission wrote, "[w]here the applicable guidelines, specific offense characteristics, and adjustments do take into consideration a [particular] factor ..., departure from the guideline is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction." U.S.S.G. § 5K2.0, p.s.

III. THE MERITS

Having limned the contours of our inquiry, we now visit the particulars of the question before us. We are mindful that, in ascertaining the legitimacy of departures from the guidelines, a tripartite analysis is utilized. See Aguilar-Pena, at 350; Diaz-Villafane, 874 F.2d at 49. The first rung on the analytic ladder requires an evaluation of the circumstances relied on below in determining the case to be sufficiently "unusual" to warrant departure. Aguilar-Pena, at 350. That question is one of law; ergo, our review is plenary. See Diaz-Villafane, 874 F.2d at 49.

In this case, we need not progress past the initial step. The district court's departure recipe consists largely of ingredients used by the Sentencing Commission in preparing the guidelines (and thus, not suitable grist for the departure mill). To the extent that the court relied upon other circumstances, they simply cannot support the weight of a departure. Accordingly, the sentence must be vacated.

A. Circumstances Already Considered.

In the first category, we place such items as Williams' drug addiction, eschewal of firearms, ineffectiveness as a bank robber, modest criminal record, and desire to repent. None of these circumstances are present in this case in any extraordinary degree. Thus, we address them only insofar as is necessary to show that the Sentencing Commission considered them in promulgating the guidelines.

1. Cocaine Dependency. Congress directed that the Commission take drug addiction into account in drafting the guidelines, see 28 U.S.C. § 994(d)(5), and the Commission did so, stipulating that "[d]rug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines." U.S.S.G. § 5H1.4, p.s.; see also U.S.S.G. § 5K2.13, p.s. (validating departures for non-violent offenses based upon diminished capacity "not resulting from the voluntary use of drugs or other intoxicants"). ⁴

2. Lack of Weaponry. It cannot be gainsaid that the Commission evaluated the effect of carrying a gun during the commission of a crime. With respect to robbery, the guidelines mandate an increase in the base offense level when a firearm is discharged, used, brandished, displayed, or possessed. See U.S.S.G. § 2B3.1. Inasmuch as the base offense level itself depends, in part, upon whether the robber was unarmed, the presence or absence of a weapon has been...