In Re Sealed Case No. 98-3116

199 F.3d 488, 339 U.S. App. D.C. 275, 1999 U.S. App. LEXIS 33976, 1999 WL 1256121

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 28, 1999
• Docket: 98-3116
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Circuit Judge ROGERS.

SENTELLE, Circuit Judge:

In 1997, appellant pleaded guilty in the United States District Court to several counts of cocaine possession and distribution in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). At sentencing, the trial court ran all sentences on all counts concurrently and sentenced appellant to 151 months. On appeal, appellant seeks a remand for resentencing on the basis that the District Judge was unaware of his authority under § 4A1.3 of the United States Sentencing Guidelines Manual (“Guidelines”) to order a downward departure from the career offender guideline range assigned to appellant. While the judge’s discourse on the matter was less than clear, we hold that his comments should not be interpreted as reflecting the view that he had no legal authority to depart. Therefore, we affirm.

I. Background

On May 2, 1997, appellant pleaded guilty to one count of unlawful possession with intent to distribute cocaine and six counts of unlawful distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Based on the drug quantity involved, the Presentence Report (“PSR”) set the Guideline base offense level at eighteen. Since appellant had been convicted of two prior felony drug offenses, she qualified as a career offender under § -4B1.1 and thus her offense level was raised to thirty-two. However, her offense level was reduced by three for acceptance of responsibility. Therefore, her final offense level totaled twenty-nine.

Regarding appellant’s two prior offenses, the PSR showed that (1) the two offenses were committed within months of each other; (2) the offenses occurred almost ten years prior to the instant offenses; (3) the offenses involved very small quantities of drugs; (4) appellant received a probationary sentence on her second conviction; (5) appellant successfully completed her parole and probation; (6) appellant sold drugs to support her addiction rather than for financial gain; and (7) appellant led a conviction-free and productive life during the ten year period between her prior offenses and instant offenses. Had appellant not been deemed a career offender, her total offense level would have been fifteen (base eighteen less three for acceptance of responsibility) and her sentencing range would have been twenty-four to thirty months. However, since the court ruled that appellant’s two prior convictions qualified her as a career offender, her sentencing range was 151— 188 months.

Prior to sentencing, defense counsel filed objections to the PSR. Counsel objected to the career offender adjustment on the grounds that it did not “accurately reflect [appellant’s] criminal history, but artificially inflate[d] her record and offense level.” The probation officer rejected counsel’s characterization in an addendum to the PSR. In making his objections, defense counsel did not raise any grounds for departure specifically under § 4A1.3, the Guideline provision cited on appeal, which allows for a sentencing departure when “the court concludes that a defendant’s criminal history category significantly over-represents the seriousness of a defendant’s criminal history or the likelihood that the defendant will commit further crimes.” U.S. Sentenoing Guidelines MaNual § 4A1.3 (1998).

At the sentencing hearing, the trial judge stated that he “tentatively” agreed with the PSR. The judge also stated that he was “tentatively” inclined to impose a sentence at the bottom of the Guideline range and to run all sentences on all counts concurrently. Defense counsel complained about the harshness of the sentencing range in light of various mitigating factors, including appellant’s age, drug addiction, period of drug abstinence and gainful employment, and educational background. In response, the judge stated:

I .wish that there was some way I could give her a sentence less than the guidelines call for. I am going to sentence her at the bottom of the guidelines, but I am convinced that she needs a long period of abstinence and the treatment that she can get in the federal system.

After defense counsel reiterated his objection to the length of the sentencing range, the judge responded, “I don’t have any alternative.” The court proceeded to sentence appellant to 151 months, running all counts concurrently in order to reach the bottom of the applicable range.

On appeal, appellant argues that her case must be remanded for resentencing since the sentencing judge was unaware that he had authority under § 4A1.3 to order a downward departure from the career offender Guideline range on the grounds that appellant’s criminal history significantly overrepresented the seriousness of her prior convictions and the likelihood she would commit future crimes. For the reasons set forth more fully below, we reject appellant’s contention that the judge misunderstood his sentencing authority.

II. Discussion

A defendant can appeal a sentence issued under the Guidelines only if the sentence “(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range.... ” 18 U.S.C. § 3742(a) (1994). Here, appellant argues that the District Judge, as evidenced by certain statements in the record, was not aware that he could enter a departure under § 4A1.3. While this court will review a District Judge’s refusal to depart downward if the judge misconstrued his statutory authority to depart, see, e.g., United States v. Beckham, 968 F.2d 47, 49, 53 (D.C.Cir.1992); United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990), we conclude that the District Judge’s comments during the sentencing hearing did not amount to an assertion that he lacked the legal authority to depart, especially as his comments were made in response to defense counsel’s general request for leniency and not in response to a specific request for departure.

Although appellant’s counsel filed written objections to the criminal history guideline calculations contained in the PSR, he did not specifically request a § 4A1.3 departure prior to sentencing. In his letter, counsel objected on the grounds that appellant’s prior convictions did “not accurately reflect her criminal history, but artificially inflate[d] her record and offense level” because the two prior convictions should not have been considered separately under § 4B1.2. Specifically, counsel argued that “[t]he predicate offenses for which [the probation officer] found defendant to be a ‘career offender’ were ‘related’ according to § 4B1.2, Note 4 of the Sentencing Guidelines ... and therefore [the predicate offenses] should not be considered two separate and unrelated felonies pursuant to § 4B1.2, Note 4.” However, counsel’s written objection does not aid appellant’s current position since the objection pertained to the relatedness of the prior offenses and did not touch upon § 4A1.3 departure authority. Moreover, counsel never specifically argued for departure at the sentencing hearing. Instead, counsel essentially asked the judge for leniency when assigning the sentence.

Since counsel never specifically argued for this departure from the appropriate Guideline range before or during the sentencing hearing, the District Judge’s comments regarding his sentencing authority must be evaluated in that context. The First Circuit considered a similar record in United States v. DeCosta, 37 F.3d 5, 8 (1st Cir.1994). In that case, the circuit court observed that a district court often “simply asserts that it ‘cannot’ or ‘is without authority’ to depart.” Id. That circuit observed that a district court making such an observation may be expressing the thought that it “cannot” depart because it lacks legal authority under the Guidelines, or simply “that it ‘cannot’ depart” because it has “weighed the factors urged and found that they do not distinguish the case from the mine run of cases.” Id. In adopting the later view of the case before it and dismissing the improvident appeal, that circuit noted that the failure of the district court under review to discuss the factors as to which the appellant thought it lacked understanding were easily explained by the failure of the defense counsel at sentencing to explicitly urge those factors as a basis for departure. Just so here.

Thus, the critical question on appeal is whether the record establishes that the district court judge misunderstood his departure authority. See Ortez, 902 F.2d at 64. Granted, the judge stated that he “wish[ed]” he could have sentenced appellant below the guideline range but concluded that he.did not “have any alternative.” However, the language used by the judge is the kind of language that sentencing judges have always used, even in the days of judicial sentencing discretion unbridled by the Guidelines, to mean that the judge could not in good conscience or with good judgment give as lenient a sentence as requested by defense counsel. See United States v. Smith, 27 F.3d 649, 665 (D.C.Cir.1994) (Sentelle, J., dissenting) (“Sentencing judge[s] ... typically said something like, ‘Counsel, I’d like to give your client a lenient sentence, but I just can’t see any basis for it.’ ”). In making such a statement, the judge does not mean that he could not lawfully give the defendant a lenient sentence but rather that he cannot do so in good conscience. Here, the District Judge’s statements are in accord with a sentencing judge’s attempt to “soften the blow” prior to his meting out justice. However, we want to stress that sentencing judges should avoid using the ambiguous language that gives rise to appeals like the one before us. Justice is better served through clarity on the record.

Our dissenting colleague charges that by upholding the District Judge’s decision on a record that contains ambiguity, we somehow “abdicate^ our responsibility to determine our own jurisdiction,” and that our decision “is potentially unjust.” Dissent at 494. Of course, any decision is potentially unjust. So far as abdicating our responsibility, however, it is not clear to us how we do anything other than choose a different decision than the one chosen by our colleague who, we would hold, has applied the wrong standard of review. Her chosen standard which finds reversible error on ambiguity in the district court record where the ground of error asserted on appeal was never raised is, on its face, inconsistent first with United States v. Pinnick, 47 F.3d 434 (D.C.Cir.1995), wherein we held that a district judge’s refusal to depart without explanation was unreviewable where the appellant had not afforded the district court with the opportunity and occasion to explain on the record. As we held there, “[ujnder these circumstances, we assume ‘that the district court kn[ew] and applie[d] the law correctly.’ ” Id. at 439 (quoting United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991)). Concededly, Pinnick involved a case with no objection rather than one like the present where a different objection was made, but it is not apparent from our colleague’s dissent why a different rule should apply. Secondly, if a different rule does apply, then it would seem that at best, the waived objection should be reviewed for plain error. See United States v. Albritton, 75 F.3d 709, 712 (D.C.Cir.1996). To hold, as our colleague does, that a record at worst ambiguous supports reversal is hardly consistent with plain error review. Finally, the searching review that reverses for an error not raised below on an ambiguous record is inconsistent with the governing statute. In adopting Guideline sentencing in the first place, Congress dictated that “[t]he court of appeals shall ... give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e). Our colleague’s approach gives no deference at all, in derogation of the obvious congressional desire to afford stability and presumptive regularity to sentencing under the Guidelines.

We further cannot agree with our colleague’s styling of the recorded colloquy between the court and the defendant as “appear[ing] only to be consistent with the district court’s view that it was bound to sentence the defendant within the Guideline range as enhanced by the career offender provision.” Dissent at 493. Indeed, in explaining his sentence, the District Judge stated, “I wish that there was some way I could give her a sentence less than the guidelines call for. I am going to sentence her at the bottom of the guidelines, but I am convinced that she needs a long period of abstinence and the treatment that she can get in the federal system.” Unless the court was aware that it did have some possibility of discretion, the second of the quoted sentences is unexplainable. If the district court misapprehended its authority, such misapprehension is not apparent from the record. Guidelines sentencing was intended by Congress to create stability and presumptive regularity in sentencing, not to provide appellate courts a chance to reverse on ambiguous records in which the defense afforded the trial court no opportunity to pass on the question asserted on appeal.

Conclusion

Reviewing the subject matter of defense counsel’s objection to the PSR and his generalized pleas for leniency at the hearing together with the language used by the District Judge, we cannot conclude that the judge expressed the view that he had no legal authority to depart under the Guidelines. The record demonstrates that the District Judge exercised discretion rather than failed to consider his authority. As we noted above, we have jurisdiction to review defense appeals from sentencing only if the sentence “(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range.... ” 18 U.S.C. § 3742(a). As this appeal falls in none of those categories, the appeal is hereby dismissed.