U.S. v. Wolfe, 04-2114.

• Decision Date: 31 January 2006
• Docket Number: No. 04-2114.,04-2114.
• Citation: 435 F.3d 1289
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tara N. WOLFE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

435 F.3d 1289

UNITED STATES of America, Plaintiff-Appellee, v. Tara N. WOLFE, Defendant-Appellant.

No. 04-2114.

United States Court of Appeals, Tenth Circuit.

January 31, 2006.

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Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant Tara N. Wolfe.

Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the brief), Albuquerque, NM, for Plaintiff-Appellee United States of America.

Before EBEL, McWILLIAMS^*, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, Defendant-Appellant Tara N. Wolfe appeals only her sentence, challenging the district court's decision to depart upward from the then-mandatory sentencing guideline range. In reversing and remanding for resentencing, we conclude the district court erred in departing upward based on factors that impermissibly double-counted facts that were already taken into account by the guidelines' calculation of the applicable sentencing range or by other departure factors. Further, the district court failed to explain the degree of its departure adequately. Therefore, we REVERSE and REMAND with instructions that the district court vacate the sentence and resentence Wolfe in accordance with this opinion. Because we conclude the district court erred in applying the guidelines to depart upward, we need not address whether the upward departure also was contrary to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).¹ On remand, however, resentencing will occur in light of the new discretionary guidelines sentencing regime established by Booker.

I. FACTS

On September 25, 2002, Wolfe, who was then twenty-one years old, was drinking with five friends at the base of Sandia Mountain, on the Sandia Pueblo near Albuquerque, New Mexico. At 2:00 a.m., after having six or seven beers, Wolfe started to drive the group home. Driving too fast, she lost control and rolled the car. Two of the car's occupants died; Wolfe was seriously hurt; the three other occupants suffered minor injuries. Four hours after the crash, Wolfe's blood-alcohol level was measured at .13; the legal limit under New Mexico law is .08, see N.M. Stat. Ann. § 66-8-102(C).

Because the accident occurred "within the exterior boundaries of the Sandia Pueblo, in Indian country," and because Wolfe and both deceased victims were Native Americans, a federal grand jury indicted Wolfe on two counts of involuntary manslaughter, in violation of 18 U.S.C. §§ 13, 1112, and 1153.² Wolfe pled guilty to both counts. The plea agreement underlying that guilty plea permitted the Government to file a motion for an upward departure at sentencing and also permitted Wolfe to file any motion pertaining to sentencing that she deemed necessary.

The probation officer preparing the presentence report ("PSR") calculated Wolfe's sentence using the 2001 United States Sentencing Guidelines,³ and determined that the applicable sentencing range was between twelve and eighteen months' imprisonment. The district court adopted those calculations. Pursuant to those calculations, the district court started with the base offense level for involuntary manslaughter under U.S.S.G. § 2A1.4. Section 2A1.4 actually sets forth two different base offense levels for involuntary manslaughter: "10, if the conduct was criminally negligent; or . . . 14, if the conduct was reckless." In this case, the district court chose to apply the greater offense level, fourteen, for reckless conduct. Pursuant to U.S.S.G. § 3D1.4, the court then added two levels because there were multiple counts involved. And the court subtracted three levels under U.S.S.G. § 3E1.1, for Wolfe's acceptance of responsibility. This left Wolfe with a total offense level of thirteen. Wolfe's criminal history category was I, reflecting no prior criminal history other than traffic tickets. That combination of offense level and criminal history category resulted in a sentencing range of twelve to eighteen months. See U.S.S.G. Sentencing Table.⁴

The Government filed a motion for an upward departure from that guideline range. See U.S.S.G. § 5K2.0. The district court granted that motion for three reasons:

Pursuant to United States Sentencing Guide[line] 5K2.0, Grounds for Departure, the Court finds the defendant's excessive recklessness in this case involved the defendant driving in excess of 100 miles per hour and was removing her hands from the steering wheel.

The Court finds a three-level departure is warranted for this factor.

Pursuant to United States Sentencing Guideline 5K2.14, Public Welfare, the Court finds that the defendant's drunk driving did create a serious threat to the public welfare, as evident by the tragic deaths in this case. The Court finds that a three-level upward departure is warranted for this factor.

Pursuant to United States Sentencing Guideline 5K2.0, the Court finds that because the instant offense involved two deaths, and this was not adequately taken into account by the involuntary manslaughter guidelines, the Court concludes that the defendant's conduct falls halfway between the recklessness that represents the heartland of involuntary manslaughter cases and the guideline that represents the second degree murder guideline.

In comparing the two guidelines, the Court finds that the difference in the second degree murder guideline and the involuntary manslaughter guideline is nine levels.

Based on these findings, the Court determines that the defendant's total adjusted offense level [of 13] should be increased by nine levels. An offense level of 22 combined with a criminal history category of I results in a guideline imprisonment range of 41 to 51 months. The Court notes that the defendant was drunk driving, which resulted in the deaths of two individuals.

The district court then imposed two forty-one-month sentences to run concurrently.

Wolfe appeals, challenging only her sentence. This court has jurisdiction to consider this appeal under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II. ISSUES

A. Inadequate notice of district court's intent to depart upward.

As an initial matter, Wolfe argues that the district court failed to give her adequate notice that the court was considering an upward departure from the applicable guideline range. Because we are already remanding for resentencing on other issues, we need not address this issue here. See United States v. Whiteskunk, 162 F.3d 1244, 1254 (10th Cir. 1998).

[S]ince we have already determined a remand is necessary on other grounds, it is unnecessary for us to decide whether the district court failed to give adequate notice of its intent and basis to depart or whether any potential failure of notice was reversible error. If the defendant suffered as a result of the district court's failure to give notice . . ., then the resentencing hearing following remand will cure the alleged harm. The defendant is now clearly on notice the district court is considering an upward departure and the bases for that departure.

Id.

B. Application of the guidelines to depart upward.

Wolfe argues that the district court misapplied the guidelines to justify its decision to depart upward. We agree.

1. Standard of review.

Wolfe objected at sentencing to the district court's decision to depart upward from the applicable guideline range. Even after Booker, "[w]hen reviewing a district court's application of the Sentencing Guidelines, we review legal questions de novo and we review any factual findings for clear error, giving due deference to the district court's application of the guidelines to the facts." United States v. Martinez, 418 F.3d 1130, 1133 (10th Cir.) (quoting United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.2005)), cert. denied, ___ U.S. ___, 126 S.Ct. 841, ___ L.Ed.2d ___ (2005). In specifically reviewing upward departures, this court employs a four-part test, examining:

(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.

Whiteskunk, 162 F.3d at 1249; see also United States v. Serrata, 425 F.3d 886, 911-12 (10th Cir.2005) (applying this four-factor standard post-Booker to review district court's downward departure imposed pre-Booker). "All of these steps are subject to a unitary abuse of discretion standard." Whiteskunk, 162 F.3d at 1249. That "unitary abuse-of-discretion standard" involves

review to determine that the [district court's] discretion . . . was not guided by erroneous legal conclusions. This standard limits appellate courts' scope of review, leaving district courts with much of their traditional sentencing discretion. The essential nature of the question presented [on appeal], whether legal or factual, guides our standard of review. 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. 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.

Id. (quotations, citations, alterations omitted).⁵

In addition,

[i]n reviewing the district court's . . . departure, we recognize that before Booker these discretionary departures were considered against a mandatory sentencing scheme, while after Booker the guidelines are entirely advisory. . . . [I]n the context of our review of [a] discretionary degree-of-departure question, we are informed by, and must take account of, the fact that the district court would have enhanced discretion...