Nolan Leigh Mendenhall, in No. 00-1500

248 F.3d 223, 2001 U.S. App. LEXIS 7910, 2001 WL 430606

• Court: Court of Appeals for the Third Circuit
• Decided: April 26, 2001
• Docket: 00-1498, 00-1500
• Status: Published

Opinions

OPINION OF THE COURT

STAPLETON, Circuit Judge:

The United States government appeals the sentences of David Yeajnan and Nolan Mendenhall on several counts of mail and wire fraud. We reversed the original sentences of both defendants following a previous government appeal, finding that the District Court had failed to apply the Sentencing Guidelines properly. United States v. Yeaman, 194 F.3d 442, 465 (3d Cir.1999). At resentencing, the District Court departed downward 17 levels for Yeaman and 16 levels for Mendenhall primarily because both defendants had already completed erroneously lenient sentences. The downward departures granted by the District Court resulted in no additional incarceration. We conclude that the District Court has again erred, and we will again remand for resentenc-ing.

I.

David Yeaman and Nolan Mendenhall were convicted on several counts of mail and wire fraud arising from their participation in a fraudulent scheme involving the sale of worthless reinsurance. The details of the scheme are set forth in our opinion in United States v. Yeaman, 194 F.3d 442, 446-49 (3d Cir.1999). Briefly stated, the convictions of Yeaman and Mendenhall stemmed from their leasing worthless stocks as assets available to pay insurance claims. When these assets were called upon to pay outstanding medical reinsurance claims, the scheme was uncovered. David Yeaman leased stocks which were purported to be valued at over $12 million but were in fact practically worthless. Mendenhall assisted Yeaman in leasing these falsely — valued stocks and ran the day-to-day operations of the scheme. Id.

Yeaman was convicted by a jury in 1997 of conspiracy to commit securities fraud and wire fraud, in violation of 18 U.S.C. § 371, five counts of wire fraud, in violation of 18 U.S.C. § 1343, and three counts of securities fraud, in violation of 15 U.S.C. § 77q(a). Mendenhall was convicted of four counts of securities fraud, in violation of 15 U.S.C. § 77q(a). Three co-defendants were also convicted at trial, while a sixth co-defendant pled guilty and testified against the other defendants.

At its first sentencing hearing on January 28, 1998, the District Court sentenced Yeaman to 14 months imprisonment and Mendenhall to three years probation, with Mendenhall’s first 10 months to be served in community confinement. The defendants appealed these sentences and the government cross-appealed. On appeal, this Court remanded for resentencing, holding, inter alia, that the District Court had erred by finding that no loss had occurred. On remand, Yeaman and the government agreed to a modified offense level of 30, based on the $4.5 million loss incurred and other factors. This produced a sentencing range of 97 to 121 months for Yeaman, a range mandating a sentence 83 months (roughly 7 years) longer than his prior sentence. Mendenhall and the government agreed to an offense level of 26, also based on the loss and other factors. This produced a sentence range of 63 to 78 months, in comparison to a previous sentence requiring no jail time, but only community confinement.

At the resentencing hearing on April 10, 2000, the District Court found that these ranges were appropriate and that they were supported by the facts. The District Court then departed downward 17 levels for Yeaman and 16 levels for Mendenhall in order to re-impose its original sentences. Before either party had addressed the merits, the District Court made clear its intention to avoid imposing any punishment beyond the original sentences.

Let me say at the outset that this is an unusual situation in that we have two defendants here who had been sentenced previously and who were each sentenced to periods of incarceration which they entered upon and completed and served and then entered upon their supervised release and their resumption of their civilian pursuits.

I must say, in all candor, that my view of this is that, as a judge, if he were in a position of applying justice and mercy, as it’s traditionally been known, would feel that after this long delay, it is almost unconscionable to send these two defendants back to prison.

(App.l62a-66a).

After hearing arguments by the government and both defendants, the District Court re-imposed its original sentences.

II.

The parties have suggested four bases for the District Court’s downward departures: extraordinary rehabilitation, disparity in sentencing among similarly situated co-defendants, extraordinary family circumstances, and reincarceration after completion of a sentence. The government argues that on the facts of this case, a departure based on any of the above factors is unwarranted.

“We review a district court’s decision to depart from the applicable Guidelines range under an abuse of discretion standard.... ” United States v. Sweeting, 213 F.3d 95, 100 (3d Cir.2000), citing Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). “Our review is limited to ensuring that the circumstances relied upon by the District Court are not ‘so far removed from those found exceptional in existing case law that the sentencing court may be said to be acting outside permissible limits.’ ” United States v. Serafini, 233 F.3d 758, 772 (3d Cir.2000) quoting Sweeting, 213 F.3d at 100.

However, we also note that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Koon, 518 U.S. at 100, 116 S.Ct. 2035. Thus, while we owe deference to the District Court’s interpretation of the facts warranting departure in this case, we may correct the District Court’s legal error if we find that it has departed based on a factor which would not warrant departure under any circumstances.

1. Extraordinary Rehabilitation

In United States v. Sally, 116 F.3d 76 (3d Cir.1997), we held that “post-offense rehabilitation efforts, including those which occur post-conviction, may constitute a sufficient factor warranting a downward departure provided that the efforts are so exceptional as to remove the particular case from the heartland in which the acceptance of responsibility guideline was intended to apply.” Id. at 80 (emphasis is original). These rehabilitation efforts must be remarkable, “indicate real, positive behavioral change,” and demonstrate the defendant’s “commitment to repair and rebuild” his or her life. Id. at 81; see also United States v. Hancock, 95 F.Supp.2d 280, 287 (E.D.Pa.2000) (declining to grant a Sally departure based on defendant’s post-offense work record, where defendant was a college graduate and held noteworthy employment prior to arrest); United States v. Kane, 88 F.Supp.2d 408, 409 (E.D.Pa.2000) (noting it is inappropriate to grant a departure where the defendant simply engages in good conduct consistent with pre-offense activities).

Though the District Court did not explicitly state it was departing downward on the basis of extraordinary rehabilitation, it is clear that the court was aware that extraordinary rehabilitation was an available basis for departure pursuant to our decision in Sally. The District Court did state that “the record of both individuals while in custody was exemplary and reflected a concentrated attitude of rehabilitation and cooperation” and that “additional imprisonment would result in disruption of their rehabilitative efforts.”

The government notes that the most recent version of the Sentencing Guidelines has been amended to forbid expressly downward departures based on post-sentencing rehabilitation. The Sentencing Commission determined that such departures were inconsistent with 18 U.S.C. § 3624(b) (providing for sentence reductions due to good behavior) and im-permissibly benefitted only those who were granted resentencing de novo. U.S.S.G. § 5K2.19, Appendix C, Amendment 602 (effective Nov. 1, 2000). We note that the amended guidelines were not effective at the time of the sentencing of these defendants and that they work a departure from our previous rule in Sally. We, therefore, conclude that a Sally departure is available, at least in theory, to these defendants,

It is clear from the record before us, however, that the defendants here are not eligible for a Sally departure. Neither Yeaman or Mendenhall has introduced evidence of extraordinary rehabilitation. Mendenhall’s three proffered examples of rehabilitation are not significant. First, Mendenhall’s parole officer stated that his behavior was “likely aberrant and not likely to be repeated.” Second, Mendenhall points out that he is attempting to become an architect. Third, after being released from community confinement, Mendenhall sought counseling from a police lieutenant.

The statement of the parole officer hardly amounts to evidence of extraordinary rehabilitation, and Mendenhall’s career change is not at all surprising, as he has a Master’s Degree in architecture and would presumably have faced difficulty obtaining employment in the securities industry subsequent to his conviction. The only evidence that speaks to rehabilitation at all is Mendenhall’s pursuit of counseling. Pursuit of counseling is included as a factor weighing toward proof of acceptance of responsibility under U.S.S.G. § 3E1.1. The fact that it is a factor weighing in favor of a guideline-based departure makes it clear that standing alone, it is not “extraordinary” unless there is some evidence that it was somehow present to an extraordinary degree in this case. No such evidence is present in the record. Accordingly, we can find no basis in the record supporting a Sally departure for Mendenhall as he has pointed to nothing “remarkable” or “exceptional” in his rehabilitation as is required by our jurisprudence.

Turning to Yeaman, the record makes clear that he learned Spanish, participated in the prison choir, tutored other inmates, and generally behaved as a “model prisoner.” As a reward for this good behavior, Yeaman was released early from his confinement at Nellis Federal Prison Camp and transferred to community confinement to serve the last few months of his original sentence. While Yeaman’s activities, especially the tutoring of fellow inmates, were commendable, they do not support a finding of extraordinary rehabilitation. Before his original sentencing, Mr. Yeaman made clear that he is an individual with strong religious convictions who would not be inclined to engage in unlawful activity in the future.¹ Yeaman’s behavior subsequent to sentencing confirms this fact but also makes it clear that Yeaman’s conduct has not changed significantly and could have been reasonably expected based on his previous behavior. Insofar as the District Court concluded that extraordinary rehabilitation occurred in Yeaman’s case, it abused its discretion. There is nothing about Yeaman’s post-sentencing conduct that sets it outside the heartland and makes it a basis for a Sally departure.²

2. Sentencing Disparity

The District Court stated that “imposing what is concededly a substantial downward departure ... would tend to make the sentences more compatible with the defendant’s other cohorts in this scheme for which the defendants have been found guilty, and would more fairly level the playing field.” The defendants suggest that the District Court departed downward on the basis of sentencing disparity.

We are not certain that the defendants have read the District Court’s statement correctly. It is possible that the District Court was merely observing an effect of its downward departure rather than providing an additional basis for the departure. If it were true that this were a basis for departure, however, we would not be able to sustain such a basis on these facts. The record makes it clear that two of the defendant’s cohorts received sentences more severe than those properly applicable to Yeaman and Mendenhall.³ Additionally, the government makes a compelling argument that the variation in sentences between the defendants here and their co-defendants may be explained by the fact that all co-defendants presented by the defendants pled guilty and many of them cooperated with the government’s investigation and prosecution. Generally, disparities in sentences among co-defendants do not constitute a valid basis for downward departure in the absence of any proof of prosecutorial misconduct. United States v. Higgins, 967 F.2d 841, 845 (3d Cir.1992). In fact, several other circuits have rejected challenges to shorter sentences for similarly situated co-defendants when the shorter sentences were a result of plea bargaining or government assistance. See, e.g., United States v. Epley, 52 F.3d 571, 584 (6th Cir.1995); United States v. Stanley, 928 F.2d 575, 582-83 (2d Cir.1991).

We have held that a manipulation of an indictment by the prosecution may provide a basis for a downward departure. See United States v. Lieberman, 971 F.2d 989, 998-99 (3d Cir.1992). Although Yea-man and Mendenhall suggest many inconsistencies between their sentences and the sentences of their co-defendants, their arguments are based on an ambiguous comment by the District Court that makes no reference to specific facts. Lacking any findings of fact from the District Court as to which co-defendants were similarly situated and how the government committed prosecutorial misconduct, it is impossible for us to determine if and why the District Court intended to depart downward on the basis that some sentences were dissimilar. In the absence of any factual findings of specific disparities or prosecutorial misconduct, the departures challenged by the government cannot be sustained on the basis of sentencing disparity.

3. Family Circumstances

We note briefly that the District Court stated that reincarceration would result in “disruption of ... [defendants’] relationships with family members, which have been strained and are now being strengthened” and “substantial economic hardship on ... [defendants’] families.” This suggests to us that family circumstances may have constituted a basis for the District Court’s downward departure. Our opinion in United States v. Sweeting, 213 F.3d 95 (3d Cir.2000), recognizes this basis for downward departure outside the Guidelines, but it also forecloses the possibility of any such departure on this record. See id. at 102 (stating that family disruption is a normal consequence of incarceration). In Sweeting, we denied a downward departure on the basis of extraordinary family circumstances to a single mother with five children, one of whom had a psychological impairment. See id. at 96-98. The evidence of extraordinary family circumstances in this case does not rise to the level that we found inadequate in Sweeting. We will not discuss the issue further, as Mendenhall does not urge this basis upon us and Yeaman specifically argues that family circumstances were not a basis for the District Court’s decision.

4. Re-Incarceration

This leaves re-incarceration as the only possible basis for sustaining the District Court’s downward departure.⁴ Sentencing took place on January 22, 1998 and Mendenhall and Yeaman began to serve their sentences within three months of that date. Resentencing took place on April 10, 2000. At that time, Mendenhall had been released from community confinement and had been living with his family (on probation) for a period of roughly 16 months. Yeaman had served ten months in a federal prison camp and a brief term of community confinement and had been free for over a year. The District Court specifically departed downward on the basis that Yeaman and Mendenhall had served their original sentences, and that it would be “cruel” to return the defendants to prison following the completion of their original sentences.⁵ Yeaman’s counsel argues that we “should affirm Mr. Yeaman’s sentence on [re-incarceration] alone, and need not address the other bases for departure.” Appellee’s Br. at 31.

A court may depart from the guidelines sentence if “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 that should result in a sentence different from that described.” Departures should be “highly infrequent,” Koon, 518 U.S. at 96, 116 S.Ct. 2035; see also Serafini 233 F.3d at 779 (Rosenn, J., dissenting in part and concurring in part) (“Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction,” citing Ronald Dworkin, Taking Rights Seriously 31 (1977)).

The Supreme Court has endorsed a four-step test for determining whether a departure from the Guidelines should occur based on unusual circumstances. See Koon, 518 U.S. at 95, 116 S.Ct. 2035. First, we determine if the factor relied upon in the case makes it special or unusual, taking it outside the heartland. Second, we determine whether departures on such factors have been forbidden by the Commission. Third, we determine whether the Commission has encouraged departures based on such factors. Fourth, we determine whether the Commission has discouraged departures based on such factors. Id.

We conclude that the claims of Yeaman and Mendenhall stumble on the first step of Koon. The defendants here present no unusual circumstances that move their situation outside the heartland. The Sentencing Guidelines promote two central Congressional objectives. First, they promote a vertical sentencing uniformity by identifying an appropriate sentencing range for any given crime in light of the goals of sentencing. Second, they promote a horizontal uniformity in sentencing by requiring that similarly situated defendants are sentenced similarly. See U.S.S.G. Ch. 1. Pt. A. ¶ 3 (policy statement). Under the Guidelines scheme, the calculated sentence is presumed to be the standard sentence for typical cases within the “heartland.” As the lower end of the sentencing range cannot be bridged without some basis for downward departure, we can conclude that it must identify the minimum sentence required in the heartland case to satisfy the goals of general deterrence, specific deterrence, retribution, and rehabilitation. See 18 U.S.C. § 3553(a) (setting forth the goals of sentencing).

In a system administered by human beings, errors are inevitable.⁶ Errors under the Sentencing Guidelines result in breaches of the intended uniformity, however, and error correction is essential to attaining the twin goals of the Guideline scheme. Accordingly, the Guidelines contemplate the correction of errors through appellate review. See U.S.S.G. Ch. 1 Pt. A. ¶2; 18 U.S.C. § 3742(b)(2). The correction of errors in sentencing necessarily involves reincarceration in that class of cases where the sentence imposed was less than it should have been and as a result, the defendant has been released prior to the correction of the error.

The District Court here held that rein-carceration in and of itself constitutes an aggravating or mitigating factor not adequately taken into account by the Guidelines scheme. We cannot agree. Rather, reincarceration as a means to correct error is inherent in the process of Guideline sentencing. Indeed, as we have indicated, the correction of error through reincarcer-ation provides the only means of preserving the appropriateness and uniformity of sentencing.

Accepting the District Court’s view that error correction through reincarceration places a case outside the heartland would require us to endorse the proposition that the original imposition of unduly lenient sentences can entitle defendants in Yea-man’s and Mendenhall’s positions to sentences that do not conform to the intended uniform pattern. Such an endorsement would not only be inequitable and inconsistent with Congressional intent, it would also produce the greatest deviation from the desired uniformity in those cases where the original errors are the most egregious. Permitting a downward departure to avoid reincarceration where an erroneously lenient sentence is successfully appealed would have the perverse effect of compounding judicial error. The more egregious the error of a District Court at an original sentencing, the more likely that error would become irreversible. If, for example, the District Court in this case had misinterpreted the proper guidelines sentence as requiring only four years imprisonment for each defendant, no departure would have been available under the District Court’s theory. Only when the error is most egregious does this theory support departure. We are especially hesitant to adopt a rule that creates such dubious inversions.⁷

We hold only that error correction through reincarceration cannot alone take a case outside the heartland. We do not rule out the possibility that extraordinary circumstances surrounding reincarceration or extraordinary effects of reincarceration in a particular case may provide a basis for departure just as the circumstances and effects of an original incarceration, if sufficiently extraordinary, can constitute a basis for a downward departure. See United States v. Lara, 905 F.2d 599, 605 (2d Cir.1990) (downward departure for “extreme vulnerability” during incarceration). Yea-man and Mendenhall, however, present no extraordinary circumstances or effects of reincarceration moving their cases beyond the heartland.

Under the Guidelines a sentence for Yeaman of at least eight years and one month and a sentence for Mendenhall of at least five years and three months are deemed necessary to serve the Congressionally declared objectives of sentencing and the goal of uniform treatment of similarly situated defendants. Any departure from those minima must be justified by extraordinary circumstances placing their cases beyond the heartland and must be consistent with the objectives of the Guidelines. U.S. v. Gomez-Villa, 59 F.3d 1199, 1202 (11th Cir.1995); U.S. v. Ullyses-Salazar, 28 F.3d 932, 938 (9th Cir.1994). We are unwilling to hold that the original imposition of unduly lenient sentences and the resulting necessity of reincarceration of the defendants following correction of those sentences can justify the fourteen month and ten month sentences here under review.

III.

We will reverse the judgment of the District Court and remand for resentenc-ing in a manner consistent with this opinion.

1 . Relatedly, we note the following statement by the District Court:

Since [defendants'] release they have, by all accounts, been model, productive citizens, resulting in numerous letters of support from relatives, friends, employers and community members. Any additional imprisonment would result in disruption of their rehabilitative efforts, their relationships with family members, which have been strained and are now being strengthened, and would cause substantial economic hardship on the defendants and their families.

The letters mentioned were made part of the appendix, presumably in support of Yea-man’s claim of extraordinary rehabilitation. The majority of these letters simply indicate that Yeaman’s family and community believe he is a good person and believe he has been punished sufficiently. Such sentiments, though attesting to Yeaman’s many admirable qualities, do not form an adequate basis for downward departure under the Sentencing Guidelines. Accord U.S.S.G. § 5H1.6 (stating that community ties are ordinarily irrelevant to sentencing); United States v. Rybicki, 96 F.3d 754, 758 (4th Cir.1996) (finding that personal worthiness does not constitute a valid basis for downward departure); cf. United States v. Serafini, 233 F.3d at 763 (exceptional civic and charitable contributions may form a basis for departure).

2 . Yeaman’s counsel argues that United States v. Green, 152 F.3d 1202 (9th Cir.1998) is nearly on all fours supporting a downward departure. Green involved a 14 level downward departure for a person convicted of a marijuana-related offense in California, who served 3000 hours of community service, and in addition made himself "available for daily tutoring, weekend special events, out therapy program, and was instrumental in starting Saturday computer training programs." Id. at 1208. This kind of involvement might be seen as extraordinary and is distinguishable from Yeaman’s conduct, which does not demonstrate extraordinary initiative or change in behavior.

3 . Alan Teale pled guilty and was sentenced to seven years in Pennsylvania, and then ten years consecutively in Alabama. He died in prison. Charlotte Rentz pled guilty and was sentenced to six years in Pennsylvania and an additional seven years in Alabama.

4 . The defendants claim the government has waived any objection to reincarceration as a basis for downward departure, because the government, in several instances, acknowledged that the circumstances of this case were unique or unusual. We have found multiple instances in the record where the government made clear that it is opposed any downward departure in this situation. The government does not, however, contest the theoretical possibility of a downward departures based on reincarceration in some other factual situation.

5 . Again we observe that Mendenhall was never incarcerated, but served 10 months in community confinement.

6 . See Alexander Pope, An Essay on Criticism, part ii, line 325 (1711) ("To err is human. ...”).

7 . In support of its view, the District Court made reference to this Court's opinion in United States v. Romualdi, 101 F.3d 971 (3d Cir.1996). In that case, we reversed an erroneous sentence of home confinement that should have been a sentence of three years incarceration. In the course of our opinion, we suggested that on remand the District Court might consider whether a departure would be appropriate:

[W]e note that Romualdi has apparently completed his service of the most stringent part of the sentence imposed by the district court, i.e. home confinement for six months. On remand, the district court may want to consider whether this is a factor that would warrant departure.

Id. at 977.

We read this language as suggesting that in the absence of any compensation under the guidelines for time erroneously served in home confinement, such confinement might possibly be credited to the defendant through a downward departure mechanism at resentencing. See 18 U.S.C. § 3585(b) (providing that a defendant shall be given credit toward the service of a term for any time spent previously in federal custody); Edwards v. United States, 41 F.3d 154 (3d Cir.1994) (holding that home confinement is not official detention for purposes of 18 U.S.C. § 3585(b)).

Romualdi thus has no bearing on cases like the ones before us where the defendants will receive full credit for the time they have served and the sole issue is whether reincarceration for error correction can alone move the defendant’s case outside the heartland.