U.S. v. Ziegler, 93-3376

• Decision Date: 25 October 1994
• Docket Number: No. 93-3376,93-3376
• Citation: 39 F.3d 1058
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Maurice L. ZIEGLER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1058

39 F.3d 1058

UNITED STATES of America, Plaintiff-Appellant, v. Maurice L. ZIEGLER, Defendant-Appellee.

No. 93-3376.

United States Court of Appeals, Tenth Circuit.

Oct. 25, 1994.

Randall K. Rathbun, U.S. Atty., Kansas City, KS, and Gregory G. Hough, Asst. U.S. Atty., Topeka, KS, for plaintiff-appellant.

Marilyn M. Trubey, Asst. Federal Public Defender, Topeka, KS, (David J. Phillips, Federal Public Defender, with her on the brief), for defendant-appellee.

Before TACHA, LOGAN, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This case is before us for the second time to again review the sentence imposed on Maurice L. Ziegler ("Ziegler"). Ziegler pled guilty to possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). The district court originally sentenced Ziegler below the range required by applicable United States Sentencing Guidelines ("U.S.S.G."), because of Ziegler's presentence drug rehabilitation efforts. United States v. Ziegler, 791 F.Supp. 843 (D.Kan.1992). The government appealed, and this court reversed and remanded with instructions that the district court vacate the prior sentence and resentence in accordance with our opinion. United States v. Ziegler, 1 F.3d 1044 (10th Cir.1993) ("Ziegler I "). We held that drug rehabilitation was an improper grounds for a downward departure. On remand, the district court again departed below the guideline range, 835 F.Supp. 1335 (D.Kan.1993), and the government again appealed. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and, once again, we reverse and remand.

BACKGROUND

The factual background of this case is set forth fully in our first opinion, Ziegler I, 1 F.3d at 1045-46. In summary, police officers At a modification hearing at which sentence was imposed, it appears that the district court calculated an offense level of 30 and a criminal history category of one, resulting in a sentencing range of 97 to 121 months in prison. 791 F.Supp. at 845. The offense level of 30 does not appear to have taken into account any adjustment for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1. See id. at 844. Instead, the district court held that Ziegler's "remarkable" efforts to rehabilitate from his nearly twenty-year marijuana addiction constituted a "mitigating circumstance" not contemplated by the Sentencing Commission. Id. The district court therefore departed downward from the applicable sentencing range, reducing Ziegler's offense level by four levels, from 30 to 26, and imposing a prison term of 63 months. Id. at 845. This resulted in a reduction of the offense level that was two levels greater than what would have been achieved by awarding a two level adjustment for acceptance of responsibility under U.S.S.G. Sec. 3E1.1.

discovered 920 marijuana plants on Ziegler's property, along with paraphernalia for weighing and packaging marijuana, and several shotguns, rifles, and revolvers. Id. Ziegler was indicted on multiple counts and ultimately pled guilty to possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).

The government appealed the sentence, and this court reversed in Ziegler I, holding that drug rehabilitation is not a proper ground for downward departure under the Guidelines because it is already "taken into account for sentencing purposes under U.S.S.G. Sec. 3E1.1," the provision for acceptance of responsibility. 1 F.3d at 1047. Although the district court had improperly based its departure upon Ziegler's drug rehabilitation efforts, Ziegler had also alleged alternative mitigating factors that he argued justified a sentence below the applicable range. Id. at 1050. Thus, without ruling on these alleged alternative mitigating factors, this court remanded for the district court to resentence Ziegler with instructions to "explicitly set forth the considerations that motivate its decision to depart," if it chose to do so for a second time. Id. (quoting United States v. White, 893 F.2d 276, 278 (10th Cir.1990)).

On remand, the district court again reduced Ziegler's offense level from 30 to 26, and again departed below the applicable sentence range to impose a 63 month term. 835 F.Supp. 1335; R.O.A., Vol. I, Doc. 102. Once again, the district court declined to award the two level adjustment for "acceptance of responsibility," as authorized by section 3E1.1 of the 1991 Guidelines, but rather chose to adopt a four level departure from the base offense level for what the district court deemed to be "mitigating circumstances" not covered by the Guidelines. In compliance with this court's direction, the district court set forth its reasons for this departure on remand. See 835 F.Supp. at 1336-39 (discussing sentencing rationale prior to actual resentencing at later date).

Once again, the district court placed heavy emphasis on Ziegler's drug rehabilitation efforts. However, this time the court also described Ziegler's commendable background and personal characteristics, and noted the problem of prison overcrowding, as further justification for departing beyond the adjustment permitted for acceptance of responsibility. Id. The government has appealed the downward departure on resentencing, arguing that it is contrary to this court's holding in Ziegler I. For the reasons set forth below, we agree.

ANALYSIS

The Sentencing Reform Act allows a sentencing court to 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 that should result in a sentence different from that described." 18 U.S.C. Sec. 3553(b); see also U.S.S.G. Sec. 5K2.0, p.s. (1991); U.S.S.G. Ch. 1, Pt. A, intro. comment, at 4(b) (1991). Sentencing courts are instructed "to treat each guideline as carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes," and consider departure only when the court "finds an 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, intro. comment, at 4(b) (1991); 18 U.S.C. Sec. 3553(b).

In reviewing a district court's decision to depart from a guidelines sentencing range, this court applies 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. Pena, 930 F.2d 1486, 1494 (10th Cir.1991).

However, because we hold that the Sentencing Commission has already adequately accounted for all the factors on which the district court rested its downward departure, we need go no further than step one. Our review of the judge's resentencing indicates that the district court again relied improperly on Ziegler's drug rehabilitation efforts, and that none of the other characteristics described by the district court "significantly differ[ ] from the norm" so as to take this case out of the "heartland" of the guidelines at issue. See U.S.S.G. Ch. 1, Pt. A, intro. comment, at 4(b) (1991).

The district court's first error at resentencing was to continue to rely on Ziegler's drug rehabilitation efforts to justify a sentencing departure. The district court held that Ziegler's rehabilitation had so "far exceed[ed] ordinary expectations" that it fell outside the heartland of the acceptance of responsibility guideline, and therefore outside of our holding in Ziegler I. 835 F.Supp. at 1338 (quoting original sentencing opinion, 791 F.Supp. at 844). "[T]he guideline for acceptance of responsibility applies to the typical acceptance of responsibility cases, that is, the heartland acceptance of responsibility cases," the district court reasoned, "[while] the nature and quality of defendant Ziegler's acceptance of responsibility was atypical, unusual, and outside the scope contemplated by the guideline." Id. at 1337.

This conclusion, however, is an incorrect reading of Ziegler I, in which this court explicitly held that "the Guidelines do not contemplate drug rehabilitation as a grounds for departure even in rare circumstances." 1 F.3d at 1049 (emphasis added). After analyzing the relevant guidelines, we determined in Ziegler I that the Sentencing Commission had already fully and adequately accounted for drug rehabilitation by allowing sentencing courts to consider such efforts (1) "in determining whether a defendant is eligible for a two offense level reduction for acceptance of responsibility," ¹ and (2) "in determining the appropriate sentence within the applicable Guideline range." Id. at 1050. Therefore, drug rehabilitation efforts may play no further role in a court's sentencing analysis.

Despite our holding in Ziegler I, it is clear that the district court continued to rely on Ziegler's drug rehabilitation to depart below the applicable guideline range beyond that authorized by U.S.S.G. Sec. 3E1.1. While we reiterate our belief stated in Ziegler I that "drug rehabilitation is a commendable personal achievement," id. at 1050, and while we do not disagree that Ziegler's efforts on this front have been "quite remarkable," we also reiterate our holding in Ziegler I that "even in rare circumstances" drug rehabilitation is an improper grounds for departure beyond that authorized by the acceptance of responsibility provision. Id. at 1049 (emphasis added).

As we explained in Ziegler I, to permit such a departure would not only undermine the Congressional goal of sentencing uniformity, but would "reward[ ] drug dependency because only a defendant with a drug abuse...