USA v. Rudolph

• Decision Date: 12 August 1999
• Docket Number: No. 97-2053,97-2053
• Citation: 190 F.3d 720
• Parties: (6th Cir. 1999) United States of America, Plaintiff-Appellee, v. Charles Rudolph, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 720

190 F.3d 720 (6th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Charles Rudolph, Defendant-Appellant.

No. 97-2053

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 12, 1999

Decided and Filed: September 14, 1999

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 93-80389--Horace W. Gilmore, District Judge.

ARGUED and BRIEFED: Timothy M. Holloway, CONSTITUTIONAL LITIGATION ASSOCIATES, Detroit, Michigan, for Appellant. Jennifer J. Peregord, OFFICE OF THE U.S. ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: David J. Debold, OFFICE OF THE U.S. ATTORNEY, Detroit, Michigan, for Appellee.

Before: KEITH, BOGGS, and CLAY, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Charles Rudolph filed a motion to vacate one of three counts of his conviction. When the district court resentenced Rudolph, it applied a sentence enhancement and it denied his request for a downward departure for his alleged post-sentence rehabilitation. Rudolph appeals, contending that the district court erred by holding that it lacked the discretion to consider his request for the departure, and that the district court committed constitutional error by resentencing him after vacating one of the counts of conviction. We reverse to the extent that the district court held that it could not depart downward based on post-sentence rehabilitation, and we remand for resentencing. In all other respects, we affirm.

I. Background

In July 1993, a jury found Charles Rudolph guilty on three counts: possession of heroin within 1000 feet of a school, with intent to distribute, in violation of 21 U.S.C. §a841(a)(1) and §a860; possessing a firearm after previously being convicted of a felony, in violation of 21 U.S.C. §a922(g); and the unlawful use and carrying of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §a924(c). The district court sentenced Rudolph to a term of 78 months on counts one and two, and to a consecutive sentence of five years on count 3. Rudolph appealed his convictions, and this court affirmed. See United States v. Rudolph, No. 93-2392, 1994 WL 592932 (6th Cir. Oct. 27, 1994) (unpublished), cert. denied, 514 U.S. 1086 (1995).

On December 5, 1996, Rudolph filed a motion under 28 U.S.C. §a2255 to vacate the §a924(c) count. Rudolph argued that the jury instructions on the §a924(c) count could not survive scrutiny after the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). The government agreed, but noted that the error involved only the instructions, and that evidence supported a finding that Rudolph possessed a firearm. The government urged the court to resentence Rudolph on counts one and two, and to add the four-level enhancement of USSG §a2K2.1(b)(5), which applies to felons who possess a firearm in connection with another felony offense (such as heroin possession).

Before resentencing, Rudolph filed a memorandum arguing that the court could not resentence him on other counts, and that the court should sentence him at the low end of the guideline range because he had rehabilitated himself. As evidence of his "rehabilitation," he noted that the "National Library of Poetry" had twice given him its "Editor's Choice Award," that his supervisor praised his work managing the inmate law library, and that he passed his GED exam. The memorandum did not seek a downward departure; it merely asked that the court resentence Rudolph "at the low end of the guidelines."

The district court held a resentencing hearing on September 15, 1997. At the hearing, Rudolph's attorney asserted that resentencing on other counts would place Rudolph in double jeopardy and violate his due process rights. Also, for the first time, Rudolph's attorney claimed that the court had the discretion to make a downward departure based on Rudolph's alleged rehabilitation in prison. The court ruled that it lacked the legal authority to depart downward on the basis of post-sentence rehabilitation. Next, the district court considered the sentence enhancement and agreed with the government. The court resentenced Rudolph on counts one and two, calculating a new offense level of 24 (paired with Rudolph's criminal history category of V). It sentenced Rudolph to 92 months in prison (from a range of 92 to 115 months). We turn to the merits of Rudolph's timely appeal.

II. Rudolph's Motion for a Downward Departure on the Basis of Post-Sentence Rehabilitation

A

In its opinion in Koon v. United States, 518 U.S. 81 (1996), the Supreme Court listed several questions that a sentencing court should ask when considering a departure from the calculated guidelines range. If a court believes that a feature of a case potentially takes it outside the "heartland" of the Guidelines, the court should determine whether the Sentencing Commission has forbidden, encouraged, or discouraged departures on the basis of the feature, or whether the Guidelines do not even mention the feature. See id. at 95-96. During the resentencing hearing, Rudolph petitioned for a downward departure from the sentencing guidelines range, alleging that he had rehabilitated himself in prison since his conviction and sentence. The district court refused, expressing its belief that it lacked the discretion to depart downward on the basis of Rudolph's alleged post-sentence rehabilitation: "Well, I don't think I have discretion here.a.a.a. I see no basis for a downward departure." Unless a district court mistakenly believes that it lacks the legal authority to depart below the guidelines range, this court may not review a district court's decision not to depart. See, e.g., United States v. Landers, 39 F.3d 643, 649 (6th Cir. 1994). We hold that the district court erred, however, and that it had the legal authority to depart below the guidelines range on the basis of a defendant's post-sentence rehabilitation.

Rudolph's appeal raises the question of whether a district court has the discretion to depart downward on the basis of a defendant's rehabilitative efforts made after the defendant received his initial sentence. Defendants may engage in rehabilitative efforts at several stages: post-offense, post-arrest, post-conviction, and post-sentence. Most courts condense the possibilities into two categories: "post-offense," referring to efforts made before sentencing, and "post-sentencing" (occasionally referred to as "post-conviction"), referring to efforts made after sentencing. Especially in light of the Supreme Court's decision in Koon, the circuit courts of appeal that have considered the matter have permitted downward departures for post-offense rehabilitation. See, e.g., United States v. Brock, 108 F.3d 31, 35 (4th Cir. 1997) (holding that Koonaoverruled prior circuit law to the contrary); see also United States v. Blake, No. 97-6406, 1999 WL 503531, at *2 (6th Cir. July 9, 1999) (unpublished) (agreeing with the reasoning of Brock).

The circuits have split, however, on the question of whether courts may grant downward departures on the basis of post-sentence rehabilitation. Compare United States v. Roberts, No. 98-8037, 1999 WL 13073, at **6-7 (10th Cir. Jan. 14, 1999) (unpublished) (permitting downward departure), and United States v. Green, 152 F.3d 1202, 1207 (9th Cir. 1998) (same), and United States v. Rhodes, 145 F.3d 1375, 1379 (D.C. Cir. 1998) (same), and United States v. Core, 125 F.3d 74, 77-78 (2d Cir. 1997) (same), cert. denied, 118 S. Ct. 735 (1998), and United States v. Sally, 116 F.3d 76, 80 (3rd Cir. 1997) (same), with United States v. Sims, 174 F.3d 911, 913 (8th Cir. 1999) (forbidding downward departure), and Rhodes, 145 F.3d at 1384 (Silberman, J., dissenting). ¹ In a recent unpublished decision, a panel of this court raised the issue but decided the matter on other grounds, ruling that because the district court believed it had the authority to depart downward on the basis of post-sentence rehabilitation, this court could not review its decision not to depart. See United States v. Little, No. 98-1164, 1999 WL 426883, at *6 (6th Cir. June 15, 1999) (unpublished).

We believe that, given the explication in the Koon opinion, a district court has the discretion to depart downward on the basis of post-sentence rehabilitation. "[T]he [Sentencing] Commission chose to prohibit consideration of only a few factors, and not otherwise limit, as a categorical matter, the considerations which might bear upon the decision to depart." Koon, 518 U.S. at 94. Thus, district courts may depart downward because neither the Sentencing Guidelines nor any statute "explicitly bars consideration of post-sentence rehabilitation." Rhodes, 145 F.3d at 1379. Further, an inconsistency would arise if courts permitted departures for post-offense rehabilitation but prohibited departures for post-sentence rehabilitation. See, e.g., Green, 152 F.3d at 1207. The preceding reasons, bolstered by Koon's broad sweep, have force, and convince us to follow the Second, Third, Ninth, and D.C. Circuits (and the reasoning expressed in an unpublished decision of the Tenth Circuit), and to hold that adistrict court may depart downward on the basis of a defendant's post-sentence rehabilitation.

B

We pause to address the objections of the government, which mirror those that the Eighth Circuit expressed in its opinion in Sims, 174 F.3d at 913. We recognize that not every defendant will have the opportunity to move for a downward departure on the basis of post-sentence rehabilitation. Although most defendants will have the opportunity to move at sentencing for a downward departure based on post-offense rehabilitation, comparatively few defendants have the opportunity to move for a downward departure on the basis of rehabilitation occurring after the imposition of a sentence, because comparatively few defendants are resentenced--the opportunity arises only after an appeal where there is a remand for...